DETAILED ACTION
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 11/25/2025 has been entered.
Claims 1, 7 and 14 have been amended. Claims 1-18 are pending.
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim Rejections – 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-18 are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter. The claims are directed to an abstract idea without significantly more.
Here, under step 1 of the Alice analysis, method claims 1-13 are directed to a series of steps, and computer program product claims 14-18 are directed to a non-transitory storage medium; and computer program code, encoded on the non-transitory storage medium. Thus the claims are directed to a process and manufacture, respectively.
Under step 2A Prong One of the analysis, the claimed invention is directed to an abstract idea without significantly more. The claims recite evaluating a product, including assessing, listing, comparing, identifying, generating, developing, and augmenting steps.
The limitations of assessing, listing, comparing, generating, evaluating, and calculating, are a process that, under its broadest reasonable interpretation, covers organizing human activity concepts, but for the recitation of generic computer components.
Specifically, the claim elements recite assessing attributes of a target product; and listing relevant descriptive terms of the target product descriptive of the attributes of the target product; accessing a marketplace and identifying at least one organic competing product matching at least one descriptive term; evaluating the target product to determine attributes of the target product; and calculating a competitivity score related to the ability of the target product to compete with the at least one organic competing product; comparing the descriptive terms of the target product to descriptive terms associated with the at least one organic competing product to generate a competitivity score; generating an actionable report descriptive of a projected performance of the target product in the computer-networked marketplace relative to the at least one organic competing product, in response to the competitivity score satisfying a threshold competitivity score: generating a winnability report descriptive of: a probability of winning a winnable search term associated with the target product; and an estimated cost to win the winnable search term; developing the winnability report, wherein the machine learning model models relationships between each two or more winnability factors using a layered neural network topology to predict at least one optimal winnability search term, and augment the actionable report using the winnable search term.
That is, other than reciting a processor, a network interface device, plurality of modules, a machine learning module, and using, by the processor, back-propagation to recursively adjust weight matrices of the machine learning model, the claim limitations merely cover commercial interactions, including marketing or sales activities or behaviors, thus falling within the “Certain Methods of Organizing Human Activity” grouping of abstract ideas. Accordingly, the claims recite an abstract idea.
Under Step 2A Prong Two, the eligibility analysis evaluates whether the claim as a whole integrates the recited judicial exception into a practical application of the exception. This judicial exception is not integrated into a practical application. The claims include a processor, a network interface device, plurality of modules, a machine learning module, and using, by the processor, back-propagation to recursively adjust weight matrices of the machine learning model. The processor, network interface device, plurality of modules, machine learning module, and using, by the processor, back-propagation to recursively adjust weight matrices of the machine learning model in the steps is recited at a high-level of generality, such that it amounts no more than mere instructions to apply the exception using a generic computer component. Accordingly, this additional element does not integrate the abstract idea into a practical application because it does not impose any meaningful limits on practicing the abstract idea. As a result, the claims are directed to an abstract idea.
The claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception. As discussed above with respect to integration of the abstract idea into a practical application, the additional element of a processor, a network interface device, plurality of modules, a machine learning module, and using, by the processor, back-propagation to adjust weight matrices of the machine learning model amounts to no more than mere instructions to apply the exception using a generic computer component. Mere instructions to apply an exception using a generic computer component cannot provide an inventive concept.
None of the dependent claims recite additional limitations that are sufficient to amount to significantly more than the abstract idea. Claims 2 and 3 recite additional determining and causing steps. Claims 4-6 further recite additional causing, passing, generating, and determining steps. Similarly, dependent claims 8-13 and 15-18 recite additional details that further restrict/define the abstract idea. A more detailed abstract idea remains an abstract idea.
Under step 2B of the analysis, the claims include, inter alia, a processor, a network interface device, plurality of modules, a machine learning module, and using, by the processor, back-propagation to recursively adjust weight matrices of the machine learning model.
As discussed with respect to Step 2A Prong Two, the additional elements in the claim amount to no more than mere instructions to apply the exception using a generic computer component. The same analysis applies here in 2B, i.e., mere instructions to apply an exception on a generic computer cannot integrate a judicial exception into a practical application at Step 2A or provide an inventive concept in Step 2B.
There isn’t any improvement to another technology or technical field, or the functioning of the computer itself. Moreover, individually, there are not any meaningful limitations beyond generally linking the abstract idea to a particular technological environment, i.e., implementation via a computer system. Further, taken as a combination, the limitations add nothing more than what is present when the limitations are considered individually. There is no indication that the combination provides any effect regarding the functioning of the computer or any improvement to another technology.
In addition, as discussed in paragraph 0043 of the specification, “Referring to Figure 2A, a schematic block diagram illustrates an exemplary computing device of the computing devices 120 that may enable implementation of the invention in a standalone computing environment. The computing device may be, for example, the smartphone 126 of Figure 1. The present specification, however, contemplates that the computing device 120 may include any of those computing devices 120 descried in Figure 1 or any other type of computing device.”
Further, as discussed in paragraph 0059 of the specification, “As described herein, the computing device 322 may include a processor 310, a memory 320, user inputs 360, user outputs 370 and a data store 330 that operate similar to those similar elements described in connection with Figures 2A and 2B. The data store 330 may include those modules described herein including an assessment module 332, a competitivity score generating module 333, a comparison module 334, a filtering module 335, a recommendation module 336, and a text analytics module 338.”
As such, this disclosure supports the finding that no more than a general purpose computer, performing generic computer functions, is required by the claims.
Viewed as a whole, these additional claim element(s) do not provide meaningful limitation(s) to transform the abstract idea into a patent eligible application of the abstract idea such that the claim(s) amounts to significantly more than the abstract idea itself. Therefore, the claim(s) are rejected under 35 U.S.C. 101 as being directed to non-statutory subject matter. See Alice Corporation Pty. Ltd. V. CLS Bank Int’l et al., No. 13-298 (U.S. June 19, 2014).
Response to Arguments
In the Remarks, Applicant argues that the claims at most merely involve an exception and can only be alleged to recite an abstract idea when considered at too high a level of abstraction; therefore, Applicant's claims are in fact not directed to a judicial exception.
Second, Applicant further submits that "not all methods of organizing human activity are abstract ideas" (MPEP § 2106.04(a)(2)II), and that the limitations of claim 1 are not analogous to any of the examples of this category of abstract ideas listed in MPEP § 2106.04(a)(2).II.C, which include: (i) tracking financial transactions to determine whether they exceed a pre-set spending limit; (ii) filtering content;
(iii) considering historical usage information while inputting data; (iv) a mental process that a neurologist should follow; (v) voting, verifying the vote, and submitting the vote for tabulation; (vi) providing information to a person without interfering with the person's primary activity; (vii) rules for playing games; (viii) assigning hair designs to balance head shape; and (ix) a series of instructions of how to hedge risk.
Applicant notes that all of these examples simply correspond to instructions or rules that are meant simply to be relayed to a human and then performed by the human. In other words, the relevant claim limitations in these examples at best recite steps or instructions that could be simply relayed to and subsequently performed by a human. In contrast, the limitations of claim 1, at least as amended, include structural elements that perform functions that are not capable of being performed by a human. These functions are not instructions that are simply relayed to a human and then performed by a human. As such, the systems and method are not and cannot be implemented merely by the actions of the user.
Third, even if, arguendo, the claims can be considered to recite a judicial exception, these claims integrate the alleged judicial exception into a practical application. "[A] claim that recites a judicial exception is not directed to that judicial exception, if the claim as a whole integrates the recited judicial exception into a practical application of that exception." MPEP §2106.04(II)(A)(2). This is because integrating the judicial exception into a practical application will "apply, rely on, or use the judicial exception in a manner that imposes a meaningful limit on the judicial exception, such that the claim is more than a drafting effort designed to monopolize the judicial exception." MPEP § 2106.04(d). Thus, Applicant's claims, as a whole, integrate any alleged abstract idea into a practical application of that judicial exception. For example, the recited limitations, when reviewed as a whole, integrate the alleged judicial exception into a practical application. Specifically, the claims recite specific improvements to a method or system for, at least, evaluating the search terms associated with a target product on a digital marketplace.
Thus, Applicant's claims recite additional elements beyond any judicial exception that, at least in combination, integrate the alleged exception into a practical application because the additional elements reflect, for example, "an improvement in the functioning of a computer, or an improvement to another technology or technical field." See MPEP §2106.04(d)(I). For example, the claims provide specific improvements over prior systems and recite additional elements that "apply or use the judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment. Id. Thus, even where Applicant's claims allegedly recite a judicial exception, these claims clearly are not directed to the judicial exception and instead are directed to eligible subject matter. The Examiner respectfully disagrees.
As described in paragraph 0002 of the specification “The present invention relates generally to commerce systems and methods, and more specifically, to a product evaluation system that collects and extrapolates data about a product to produce a measurement of its viability and competitiveness in a market.” Additionally, paragraph 0003 recites “Commerce systems are well known in the art and are effective means to allow for the transaction of products, commodities, services and the like from one party to another. Commonly, commerce systems are embodied by a market, where many products are offered for sale and people that are customers are able to shop or browse the products and select items for purchase. Such markets may be managed by companies that include Ebay*, Amazon*, Wayfair®, Costco*, Walmart®, and Target®, among others. With the advent of digital marketplaces, sellers are allowed to list products for purchase to anyone with an internet connection.”
Moreover, paragraph 0007 recites “The various systems and methods of the present invention have been developed in response to the present state of the art, and in particular, in response to the problems and needs in the art that have not yet been fully solved by currently available digital marketplaces. The systems and methods of the present invention may provide evaluation processes of a target product placed on a digital marketplace to determine the competitiveness of the target product.”
Following, the claim language recites “A method of evaluating a product, the method comprising: with an assessment module executed by a processor: assessing attributes of a target product; and listing relevant descriptive terms of the target product descriptive of the attributes of the target product; with a network interface device, accessing a computer-networked marketplace and identifying at least one organic competing product matching at least one descriptive term; with a comparison module executed by the processor: comparing the descriptive terms of the target product to descriptive terms associated with the at least one organic competing product to generate a competitivity score; and with a recommendation module executed by the processor: in response to the competitivity score not satisfying a threshold competitivity score, identifying the target product as non-competitive; generating an actionable report descriptive of a projected performance of the target product in the computer-networked marketplace relative to the at least one organic competing product, in response to the competitivity score satisfying the threshold competitivity score; and generating a winnability report descriptive of: a probability of winning a winnable search term associated with the target product.”
As such, and contrary to Applicant’s assertion, the claim limitations merely cover commercial interactions, including marketing or sales activities or behaviors, thus falling within the “Certain Methods of Organizing Human Activity” grouping of abstract ideas. Accordingly, the claims recite an abstract idea.
The claimed use of “generating a winnability report descriptive of: a probability of winning a winnable search term associated with the target product; and an estimated cost to win the winnable search term; executing, via the processor, a machine learning module to develop the winnability report, wherein the machine learning model models relationships between each two or more winnability factors using a layered neural network topology to predict at least one optimal winnability search term; using, by the processor, back-propagation to recursively adjust weight matrices of the machine learning model based on a comparison of the predicted at least one optimal winnability search term and a known optimal winnability search term” does not seem to involve anything other than the application of a known technique in its normal, routine, and ordinary capacity.
In addition, regarding independent method claim 7, it is unclear whether every step of the method is being executed by the processor, as seen in independent method claim 1.
Following, under Step 2A Prong Two, the eligibility analysis evaluates whether the claim as a whole integrates the recited judicial exception into a practical application of the exception. This evaluation is performed by (a) identifying whether there are any additional elements recited in the claim beyond the judicial exception, and (b) evaluating those additional elements individually and in combination to determine whether the claim as a whole integrates the exception into a practical application. 2019 PEG Section III(A)(2), 84 Fed. Reg. at 54-55. Besides the abstract idea, the claims include a processor, a network interface device, plurality of modules, a machine learning module, and using, by the processor, back-propagation to adjust weight matrices of the machine learning model.
The processor, network interface device, plurality of modules, a machine learning module, and using, by the processor, back-propagation to adjust weight matrices of the machine learning model in the steps is recited at a high-level of generality, such that it amounts no more than mere instructions to apply the exception using a generic computer component. These limitations can also be viewed as nothing more than an attempt to generally link the use of the judicial exception to the technological environment of a computer. It should be noted that because the courts have made it clear that mere physicality or tangibility of an additional element or elements is not a relevant consideration in the eligibility analysis, the physical nature of these computer components does not affect this analysis. See MPEP 2106.05(I) for more information on this point, including explanations from judicial decisions including Alice Corp. Pty. Ltd. V. CLS Bank Int’l, 573 U.S. 208, 224-26 (2014).
Even when viewed in combination, the additional elements in the claims do no more than use computer components as a tool (i.e., a processor, a network interface device, plurality of modules, a machine learning module, and using, by the processor, back-propagation to adjust weight matrices of the machine learning model). There is no change to the computers and/or other technology recited in the claims, thus the claims do not improve computer functionality or other technology. See, e.g., Trading Technologies Int’l v. IBG, Inc., 921 F.3d 1084, 1093 (Fed. Cir. 2019) (using a computer to provide a trader with more information to facilitate market trades improved the business process of market trading, but not the computer) and the cases discussed in MPEP 2106.05(a)(I), particularly FairWarning IP, LLC v. Iatric Sys., 839 F.3d 1089, 1095 (Fed. Cir. 2016) (accelerating a process of analyzing audit log data is not an improvement when the increased speed comes solely from the capabilities of a general-purpose computer) and Credit Acceptance Corp. v. Westlake Services, 859 F.3d 1044, 1055 (Fed. Cir. 2017) (using a generic computer to automate a process of applying to finance a purchase is not an improvement to the computer’s functionality). Accordingly, the claim as a whole does not integrate the recited judicial exception into a practical application and the claim is directed to the judicial exception.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANDRE D BOYCE whose telephone number is (571)272-6726. The examiner can normally be reached M-F 10a-6:30p.
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/ANDRE D BOYCE/Primary Examiner, Art Unit 3623 December 13, 2025