Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 September 03, 2026 has been entered.
Notice to Applicant
The following is a Non-Final Office Action for Application Serial Number: 17/751,655, filed on May 23, 2022. In response to the Patent Board Decision dated July 30, 2026, Applicant on September 03, 2026, amended claims 1, 6 and 9. Claims 1-14 are pending in this application and have been rejected below.
Claims 1-14 are distinguishable over the prior art under 35 U.S.C. 103 in light of the Patent Board Decision dated July 30, 2026; see pages 14-17.
Response to Amendment
Applicant's amendments are acknowledged.
Regarding the 35 U.S.C. 101 rejection, Applicants arguments and amendments have been considered but are insufficient to overcome the rejection.
Response to Arguments
Applicant's Arguments/Remarks filed September 03, 2026 (hereinafter Applicant Remarks) have been fully considered but are not persuasive. Applicant’s Remarks will be addressed herein below in the order in which they appear in the response filed September 03, 2026.
Regarding the 35 U.S.C. 101 rejection, Applicant states amended claim 1 recites (see par. 12, Applicant Remarks).
These features require the processor, based on the cascading assignment planner, to evaluate the assignment plan on a probabilistically generated set of simulated bids based on historically observed bidding patterns, to determine whether that set of simulated bids fulfills the assignment plan according to an assignment threshold, and, if not, to update the tentative vacancies and repeat the evaluating, and to publish the tentative vacancies as actual vacancies in response to determining that a second set of simulated bids fulfills the assignment plan according to the assignment threshold, as described in Application paragraphs [0010], [0059], [0065], and [0067]. The human mind is not equipped to evaluate an assignment plan on a probabilistically generated simulated- bid set based on historically observed bidding patterns and to gate publication of actual vacancies on a threshold determination that uses a first set of simulated bids and a second set of simulated bids, with a required repeat of the evaluating when the first set does not meet the threshold. That is computational control of simulated-bid data, not an observation, evaluation, judgment, or opinion that can practically be performed with pen and paper. The Decision did not contemplate a probabilistically generated simulated-bid set based on historically observed bidding patterns, a fail path on a first set of simulated bids, or publication gated on a second set of simulated bids. Amended claim 1 now recites evaluation on a generated set of simulated bids, a fail-and-repeat path when that set does not fulfill the assignment plan according to an assignment threshold, and publication when a second set of simulated bids fulfills the assignment plan according to the assignment threshold.
In response, Examiner respectfully disagrees. Claims can recite a mental process even if they are claimed as being performed on a computer; see MPEP 2106.04(a)(2)(III)(C). Examiner notes even in a computer environment, the pending limitations are still considered abstract by reciting limitations that mimic human thought processes of observation, evaluations, judgement and opinion, that can feasibly be performed with pen and paper, where the data interpretation is perceptible in the human mind. Examiner respectfully reminds Applicant, regardless of the complexity and/or granularity, limitations directed to data analysis (i.e., evaluating an assignment plan on a probabilistically generated simulated- bid set based on historically observed bidding patterns and to gate publication of actual vacancies on a threshold determination that uses a first set of simulated bids and a second set of simulated bids, with a required repeat of the evaluating when the first set does not meet the threshold) without meaningful limitations within the claims that amount to significantly more than the abstract idea itself is a judicial exception (i.e. abstract idea). Examiner maintains the claim recites an abstract idea.
Regarding the 35 U.S.C. 101 rejection, Applicant states the same limitations are also outside the organizing human activity grouping.
Evaluating a probabilistically generated simulated-bid set based on historically observed bidding patterns, determining fulfillment against an assignment threshold, and repeating the evaluating when the threshold is not met operate on simulation data and control flow. The limitations do not manage live assignments, personal behavior, or commercial relationships.
Amended claim 1 further recites, in part:
outputting, with the processor, the update plan to a user.
Outputting the update plan to a user is not a mental process because it is delivery of the computed update plan, not an observation, evaluation, judgment, or opinion that can practically be performed in the human mind, as described in Application paragraph [0145]. The human mind does not output an update plan to a user. Outputting the update plan to a user is also outside the organizing human activity grouping because it does not manage live assignments, personal behavior, or commercial relationships. It delivers the processed result of the preceding evaluation. This limitation is an additional element. The Decision did not contemplate outputting the update plan to a user as now recited.
Accordingly, amended claim 1 does not recite a mental process or a method of organizing human activity under Step 2A Prong 1. Therefore, the rejection under 35 U.S.C. § 101 should be withdrawn.
In response, Examiner respectfully disagrees and finds the abovementioned outputting limitation is not considered abstract and therefore will not be analyzed under Step 2A – Prong One. However, Examiner finds the outputting limitation is considered to be an insignificant extra-solution activity of collecting and delivering data; see MPEP 2106.05(g) and does not integrate the abstract idea into practical application. Examiner finds the claims recite limitations directed to certain methods of organizing human activity because the limitations of the pending claim constitutes methods based on commercial or legal interactions, managing personal behavior or interactions or relationships between people. Applicant has not presented an argument to alter this analysis. Examiner maintains claim 1 recites an abstract idea directed to a mental processes and organizing human activity of managing assignment plans based on predicted vacancies and resource bids.
Regarding the 35 U.S.C. 101 rejection, Applicant states even assuming arguendo that amended claim 1 recites a judicial exception under Prong 1, amended claim 1 as a whole integrates any such exception into a practical application under Prong 2. The Action, as well as the Decision, treated the then-pending additional elements as a processor based on a cascading assignment planner stored in a memory, and treated the comparative processor-speed recitation as improving a business assignment process rather than computer or user-interface technology. Action, pages 8- 10. Decision, pages 7-11. The Decision determined that the then-pending comparative processor-speed recitation does not integrate any exception into a practical application. Neither the Action nor the Decision contemplated the additional elements now recited in amended claim 1. The additional elements now include the probabilistic simulated-bid evaluation based on historically observed bidding patterns, the threshold determination, the fail-and-repeat path, the gated publication of actual vacancies, and outputting the update plan to a user (see p. 14, Applicant Remarks).
The correct inquiry is whether the claim focuses on a specific asserted improvement in computer capabilities or in technology, rather than on an abstract idea for which computers are invoked merely as a tool. Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335 (Fed. Cir. 2016). Claims that recite specific rules improving a technological process integrate any judicial exception into a practical application. McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299, 1314-16 (Fed. Cir. 2016). The claim must include the improving process, not merely mention a result. Intellectual Ventures ILLC v. Symantec Corp., 838 F.3d 1307, 1316 (Fed. Cir. 2016). The Desjardins Memo, now reflected in MPEP § 2106.04(d), instructs that when the specification identifies an improvement in how a claimed computational process operates, and at least one claim limitation reflects that improvement, the claim integrates any exception into a practical application.
Amended claim 1 recites a specific ordered set of rules for processing assignment- plan data before live bidding is opened. The processor evaluates the assignment plan based on a probabilistically generated set of simulated bids based on historically observed bidding patterns, determines whether the set of simulated bids fulfill the assignment plan according to an assignment threshold, updates tentative vacancies and repeats the evaluating when that set does not fulfill the assignment plan according to the assignment threshold, and publishes the tentative vacancies as actual vacancies in response to determining that a second set of simulated bids fulfill the assignment plan according to the assignment threshold, as described in Application paragraphs [0010], [0059], [0065], and [0067]. That is a particular means for gating simulated-bid evaluation, not an aspirational result of better staffing.
The improvement reflected in amended claim 1 is an improvement in the claimed computational process, namely evaluation on a probabilistically generated simulated-bid set based on historically observed bidding patterns and threshold-controlled repetition of that evaluation before actual vacancies are published, as described in Application paragraphs [0059], [0065], and [0067].
Amended claim 1 further recites outputting, with the processor, the update plan to a user, as described in Application paragraph [0145]. Outputting the update plan to a user is part of the practical application because it presents the processed result of the simulation, threshold, live-bid, and publication steps to a user. The claim as a whole therefore does not stop at evaluating simulated bids. It delivers the gated update plan.
Accordingly, amended claim 1 integrates any recited judicial exception into a practical application and is not directed to an abstract idea under Step 2A. Therefore, the rejection under 35 U.S.C. § 101 should be withdrawn.
In response, Examiner respectfully disagrees. Examiner finds the abovementioned computations process is entirely directed to the data analysis of the evaluation of assignment plans based on predicted vacancies and resource bids. Examiner finds the present claims are not comparable to the technical improvements disclosed in Enfish and/or McRO. In regard to Enfish, the claims assert improvements in computer capabilities (i.e., the self-referential table for a computer database, which achieves benefits over conventional databases). Enfish disclosed sufficient support in the specification that the claims were directed to a specific implementation of a solution to a problem in the software arts. In regard to McRO, the claims demonstrated improvements to a specific technological process (i.e., lip synchronization and manipulation of character facial expressions), thus improving computer animation without requiring an artist's constant intermediation with significant support in the specification. Additionally, in Desjardins, the specification identified the improvement to machine learning technology by explaining how the machine learning model is trained to learn new tasks while protecting knowledge about previous tasks to overcome the problem of “catastrophic forgetting”, and the claims reflected the improvement identified in the specification. The computational improvements described in Desjardins specification included disclosures of the effective learning of new tasks in succession in connection with specifically protecting knowledge concerning previously accomplished tasks; allowing the system to reduce use of storage capacity; and the enablement of reduced complexity in the system. Such improvements were tantamount to how the machine learning model itself would function in operation and therefore not subsumed in the identified mathematical calculation. Examiner again finds no similar improvement in the present claims. Examiner maintains Applicant’s invention aims to solve a business problem rather than a technological one. Examiner finds Applicant is attempting to say the Step 2A-Prong One elements, the abstract idea, is what makes the claim eligible. As stated above, regardless of complexity and/or granularity, limitations directed to data analysis (i.e., probabilistic simulated-bid evaluation based on historically observed bidding patterns, the threshold determination, the fail-and-repeat path, the gated publication of actual vacancies) without meaningful limitations within the claims that amount to significantly more than the abstract idea itself is a judicial exception (i.e. abstract idea) and the outputting limitation is considered to be an insignificant extra-solution activity of collecting and delivering the results of the data analysis and therefore does not integrate the abstract idea into practical application. Examiner finds Applicant has not identified any disclosure in the claimed invention showing and/or submitting that the computer technology used is being improved, there was a technical problem in the computer technology that the claimed invention solves.
Regarding the 35 U.S.C. 101 rejection, Applicant states the ordered combination in amended claim 1 includes evaluating the assignment plan on a probabilistically generated set of simulated bids based on historically observed bidding patterns, determining whether the set of simulated bids fulfill the assignment plan according to an assignment threshold, updating tentative vacancies and repeating the evaluating when that set does not fulfill the assignment plan according to the assignment threshold, publishing actual vacancies in response to determining that a second set of simulated bids fulfill the assignment plan according to the assignment threshold, receiving actual bids, evaluating the assignment plan based on the actual bids, publishing an update plan, and outputting the update plan to a user. No individual element standing alone produces that combination and the combination is not a generic instruction to apply assignment rules on a computer.
The art previously made of record further confirms that the ordered combination is not well-understood, routine, or conventional (see pg. 16-17, Applicant Remarks). None of the art previously made of record, individually or in combination, discloses that ordered combination. Absence of the combination from the art previously made of record is affirmative evidence that the combination is not well-understood, routine, or conventional.
Accordingly, even under Step 2B, amended claim 1 is patent eligible. Therefore, the rejection under 35 U.S.C. § 101 should be withdrawn.
In response, Examiner respectfully disagrees. Again, Examiner finds Applicant is attempting to say the Step 2A-Prong One limitations, the abstract idea, is what makes the claim eligible. Examiner notes the analysis in Step 2B addresses the question on whether an additional element (or combination of additional elements) represents well-understood, routine and/or conventional activities. Examiner maintains Applicant has not identified any disclosure in the claimed invention showing and/or submitting that the computer technology used is being improved, there was a technical problem in the computer technology that the claimed invention solves, or the ordered combinations of the known elements is significantly more than identified abstract idea. Examiner maintains the additional elements (e.g., the processor based on a cascading assignment planner) recited in the claim perform generic functions (i.e., such as receiving or transmitting data over a network, electronic recordkeeping, and storing and retrieving information in memory) without reciting any limitations that amount to “significantly more” than the judicial exception.
Additionally, Applicant is respectfully reminded novelty and non-obviousness over the prior art, have no bearing on whether a claim recites an abstract idea. Although the courts often evaluate considerations such as the conventionality of an additional element in the eligibility analysis, the search for an inventive concept should not be confused with a novelty or non-obviousness determination. See Mayo, 566 U.S. at 91, 101 USPQ2d at 1973 (rejecting "the Government’s invitation to substitute §§ 102, 103, and 112 inquiries for the better established inquiry under § 101 "). As made clear by the courts, the "‘novelty’ of any element or steps in a process, or even of the process itself, is of no relevance in determining whether the subject matter of a claim falls within the § 101 categories of possibly patentable subject matter." Intellectual Ventures I v. Symantec Corp., 838 F.3d 1307, 1315, 120 USPQ2d 1353, 1358 (Fed. Cir. 2016) (quoting Diamond v. Diehr, 450 U.S. at 188–89, 209 USPQ at 9). See also Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d 1138, 1151, 120 USPQ2d 1473, 1483 (Fed. Cir. 2016) ("a claim for a new abstract idea is still an abstract idea. The search for a § 101 inventive concept is thus distinct from demonstrating § 102 novelty."). In addition, the search for an inventive concept is different from an obviousness analysis under 35 U.S.C. 103. See, e.g., BASCOM Global Internet v. AT&T Mobility LLC, 827 F.3d 1341, 1350, 119 USPQ2d 1236, 1242 (Fed. Cir. 2016) ("The inventive concept inquiry requires more than recognizing that each claim element, by itself, was known in the art. . . . [A]n inventive concept can be found in the non-conventional and non-generic arrangement of known, conventional pieces."). Specifically, lack of novelty under 35 U.S.C. 102 or obviousness under 35 U.S.C. 103 of a claimed invention does not necessarily indicate that additional elements are well-understood, routine, conventional elements. Because they are separate and distinct requirements from eligibility, patentability of the claimed invention under 35 U.S.C. 102 and 103 with respect to the prior art is neither required for, nor a guarantee of, patent eligibility under 35 U.S.C. 101; see MPEP 2106.05(I). For at least these reasons, the claim remains rejected under 35 U.S.C. § 101 as being directed to non-statutory subject matter.
Regarding the 35 U.S.C. 101 rejection, Applicant states amended claim 9 recites (see par. 18, Applicant Remarks).
These features require dividing the competing bids based on the priority keys so that separate groups of resources are not considered competing for a given bid, as described in Application paragraph [0135], and combining an offset with an initial priority of a first resource as a priority freeze applied as a temporary adjustment to baseline priority levels, and combining that offset with the initial priority instead of making a date comparison to determine using the temporary adjustment, as described in Application paragraphs [0122] and [0125]. Dividing the competing bids based on the priority keys so that separate groups of resources are not considered competing for a given bid is not a mental process because it partitions competing-bid data by stored priority key so that later ranking does not treat those groups as competing, as described in Application paragraph [0135]. A person comparing two candidates for one vacancy is not performing that partition of competing-bid data by priority key. Dividing the competing bids based on the priority keys is also outside the organizing human activity grouping because the limitation operates on competing-bid data and priority keys. It does not assign a person to a role, set a work schedule, or conduct a commercial interaction. The grouping is not recited merely because later ranking of people can be imagined. That limitation is an additional element. The human mind is not equipped to combine an offset with an initial priority as a stored priority freeze and then use that combined value instead of making a date comparison. The Decision did not contemplate dividing competing bids based on priority keys so that separate groups of resources are not considered competing for a given bid, or combining an offset with an initial priority as a priority freeze instead of making a date comparison.
In response, Examiner respectfully disagrees. Claims can recite a mental process even if they are claimed as being performed on a computer; see MPEP 2106.04(a)(2)(III)(C). Examiner notes even in a computer environment, the pending limitations are still considered abstract by reciting limitations that mimic human thought processes of observation, evaluations, judgement and opinion, that can feasibly be performed with pen and paper, where the data interpretation is perceptible in the human mind. Examiner respectfully reminds Applicant, regardless of the complexity and/or granularity, limitations directed to data analysis (i.e., dividing the competing bids based on the priority keys so that separate groups of resources are not considered competing for a given bid and combining an offset with an initial priority as a priority freeze) without meaningful limitations within the claims that amount to significantly more than the abstract idea itself is a judicial exception (i.e. abstract idea). Furthermore, the aforementioned limitations analyze the categorization of resources, thus constituting method based on managing personal behavior, or relationships or interactions between people. Examiner maintains the claim recites an abstract idea.
Regarding the 35 U.S.C. 101 rejection, Applicant states same limitations are also outside the organizing human activity grouping.
Combining an offset with an initial priority as a priority freeze, and combining that offset instead of making a date comparison, operate on encoded priority data. The limitations do not manage who is assigned to a role. Amended claim 9 recites combining the offset with the initial priority instead of making a date comparison, which is not, in and of itself, managing assignment plans.
Amended claim 9 further recites, in part:
outputting, with the processor, the update plan to a user.
Outputting the update plan to a user is not a mental process because it is delivery of the computed update plan, not an observation, evaluation, judgment, or opinion that can practically be performed in the human mind, as described in Application paragraph [0145]. The human mind does not output an update plan to a user. Outputting the update plan to a user is also outside the organizing human activity grouping because it does not manage live assignments, personal behavior, or commercial relationships. It delivers the processed result of the preceding dividing, combining, and linking operations. That limitation is an additional element. The Decision did not contemplate outputting the update plan to a user as now recited.
Accordingly, amended claim 9 does not recite a mental process or a method of organizing human activity under Step 2A Prong 1. Therefore, the rejection under 35 U.S.C. § 101 should be withdrawn.
In response, Examiner respectfully disagrees and finds the abovementioned outputting limitation is not considered abstract and therefore will not be analyzed under Step 2A – Prong One. However, Examiner finds the outputting limitation is considered to be an insignificant extra-solution activity of collecting and delivering data; see MPEP 2106.05(g) and does not integrate the abstract idea into practical application. Examiner finds the claims recite limitations directed to certain methods of organizing human activity because the limitations of the pending claim constitutes methods based on commercial or legal interactions, managing personal behavior or interactions or relationships between people. Applicant has not presented an argument to alter this analysis. Examiner maintains claim 9 recites an abstract idea directed to a mental processes and organizing human activity of updating schedule plans based on resource priorities.
Regarding the 35 U.S.C. 101 rejection, Applicant states even assuming arguendo that amended claim 9 recites a judicial exception under Prong 1, amended claim 9 as a whole integrates any such exception into a practical application under Prong 2. The Action, as well as the Decision, treated then-pending claim 9 together with claim 1 and relied on the same comparative processor-speed recitation and generic computer elements. Action, pages 8-10. Decision, pages 7-11. The Decision determined that the then-pending comparative processor-speed recitation does not integrate any exception into a practical application. Neither the Action nor the Decision contemplated the additional elements now recited in amended claim 9. The additional elements now include dividing competing bids based on priority keys so that separate groups of resources are not considered competing for a given bid, combining an offset with an initial priority as a priority freeze, combining that offset with the initial priority instead of making a date comparison, and outputting the update plan to a user.
Applicant argues Claims that recite specific rules improving a technological process integrate any judicial exception into a practical application. McRO, 837 F.3d at 1314-16. The claim must include the improving process. Intellectual Ventures I, 838 F.3d at 1316. The Desjardins Memo instructs that when the specification identifies an improvement in how a claimed computational process operates, and at least one claim limitation reflects that improvement, the claim integrates any exception into a practical application.
Amended claim 9 recites a specific ordered set of rules for processing competing- bid and update-path data. Priority keys divide update paths into subdivisions. Competing bids are divided based on the priority keys so that separate groups of resources are not considered competing for a given bid. An offset is combined with an initial priority of a first resource as a priority freeze applied as a temporary adjustment to baseline priority levels. The offset is combined with the initial priority instead of making a date comparison to determine using the temporary adjustment, as described in Application paragraphs [0122], [0125], and [0135]. That is a particular means for encoding a freeze into a stored priority, not an aspirational result of ranking people. Dividing competing bids so that separate groups are not considered competing for a given bid supplies claim structure under McRO. The computational improvement reflected in the claim is combining the offset with the initial priority instead of making a date comparison.
Amended claim 9 further recites outputting, with the processor, the update plan to a user, as described in Application paragraph [0145]. Outputting the update plan to a user is part of the practical application because it presents the processed result of the dividing, combining, linking, and update-order operations to a user. The claim as a whole therefore does not stop at ranking competing bids. It delivers the update plan produced by those operations.
Accordingly, amended claim 9 integrates any recited judicial exception into a
practical application and is not directed to an abstract idea under Step 2A. Therefore, the rejection under 35 U.S.C. § 101 should be withdrawn.
In response, Examiner respectfully disagrees. Examiner finds the abovementioned computations process is entirely directed to the data analysis of resource priorities. Examiner finds the present claims are not comparable to the technical improvements disclosed in Enfish. In Enfish, the claims assert improvements in computer capabilities (i.e., the self-referential table for a computer database, which achieves benefits over conventional databases). Enfish disclosed sufficient support in the specification that the claims were directed to a specific implementation of a solution to a problem in the software arts. Additionally, in Desjardins, the specification identified the improvement to machine learning technology by explaining how the machine learning model is trained to learn new tasks while protecting knowledge about previous tasks to overcome the problem of “catastrophic forgetting”, and the claims reflected the improvement identified in the specification. The computational improvements described in Desjardins specification included disclosures of the effective learning of new tasks in succession in connection with specifically protecting knowledge concerning previously accomplished tasks; allowing the system to reduce use of storage capacity; and the enablement of reduced complexity in the system. Such improvements were tantamount to how the machine learning model itself would function in operation and therefore not subsumed in the identified mathematical calculation. Examiner again finds no similar improvement in the present claims. Examiner maintains Applicant’s invention aims to solve a business problem rather than a technological one. Applicant is attempting to say the Step 2A-Prong One elements, the abstract idea, is what makes the claim eligible. As stated above, regardless of complexity and/or granularity, limitations directed to data analysis (i.e., dividing competing bids based on priority keys so that separate groups of resources are not considered competing for a given bid, combining an offset with an initial priority as a priority freeze and combining that offset with the initial priority instead of making a date comparison) without meaningful limitations within the claims that amount to significantly more than the abstract idea itself is a judicial exception (i.e. abstract idea) and the outputting limitation is considered to be an insignificant extra-solution activity of collecting and delivering the results of the data analysis and therefore does not integrate the abstract idea into practical application. Examiner finds Applicant has not identified any disclosure in the claimed invention showing and/or submitting that the computer technology used is being improved, there was a technical problem in the computer technology that the claimed invention solves.
Regarding the 35 U.S.C. 101 rejection, Applicant states the ordered combination in amended claim 9 includes dividing competing bids based on priority keys so that separate groups of resources are not considered competing for a given bid, combining an offset with an initial priority of a first resource as a priority freeze applied as a temporary adjustment to baseline priority levels, combining that offset with the initial priority instead of making a date comparison, linking an update-input to a second resource when a first resource has been linked to an update-input with one of a same preference and a higher preference, determining an update order, releasing an update plan scheduled according to that update order, and outputting the update plan to a user. No individual element standing alone produces that combination and the combination is not a generic instruction to rank bids or to apply assignment rules on a computer.
The art previously made of record further confirms that the ordered combination is not well-understood, routine, or conventional (see pg. 22, Applicant Remarks). None of the art previously made of record, individually or in combination, discloses that ordered combination. Absence of the combination from the art previously made of record is affirmative evidence that the combination is not well-understood, routine, or conventional.
Accordingly, even under Step 2B, amended claim 9 is patent eligible. Therefore, the rejection under 35 U.S.C. § 101 should be withdrawn.
In response, Examiner respectfully disagrees. Again, Examiner finds Applicant is attempting to say the Step 2A-Prong One limitations, the abstract idea, is what makes the claim eligible. Examiner notes the analysis in Step 2B addresses the question on whether an additional element (or combination of additional elements) represents well-understood, routine and/or conventional activities. Examiner maintains Applicant has not identified any disclosure in the claimed invention showing and/or submitting that the computer technology used is being improved, there was a technical problem in the computer technology that the claimed invention solves, or the ordered combinations of the known elements is significantly more than identified abstract idea. Examiner notes all the limitations recited above are directed to the claimed inventions abstract idea and Applicant’s arguments are void of any additional elements to be considered under Step 2B. Examiner maintains the additional elements recited in the claim perform generic functions without reciting any limitations that amount to “significantly more” than the judicial exception.
Additionally, Applicant is respectfully reminded novelty and non-obviousness over the prior art, have no bearing on whether a claim recites an abstract idea. Although the courts often evaluate considerations such as the conventionality of an additional element in the eligibility analysis, the search for an inventive concept should not be confused with a novelty or non-obviousness determination. See Mayo, 566 U.S. at 91, 101 USPQ2d at 1973 (rejecting "the Government’s invitation to substitute §§ 102, 103, and 112 inquiries for the better established inquiry under § 101 "). As made clear by the courts, the "‘novelty’ of any element or steps in a process, or even of the process itself, is of no relevance in determining whether the subject matter of a claim falls within the § 101 categories of possibly patentable subject matter." Intellectual Ventures I v. Symantec Corp., 838 F.3d 1307, 1315, 120 USPQ2d 1353, 1358 (Fed. Cir. 2016) (quoting Diamond v. Diehr, 450 U.S. at 188–89, 209 USPQ at 9). See also Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d 1138, 1151, 120 USPQ2d 1473, 1483 (Fed. Cir. 2016) ("a claim for a new abstract idea is still an abstract idea. The search for a § 101 inventive concept is thus distinct from demonstrating § 102 novelty."). In addition, the search for an inventive concept is different from an obviousness analysis under 35 U.S.C. 103. See, e.g., BASCOM Global Internet v. AT&T Mobility LLC, 827 F.3d 1341, 1350, 119 USPQ2d 1236, 1242 (Fed. Cir. 2016) ("The inventive concept inquiry requires more than recognizing that each claim element, by itself, was known in the art. . . . [A]n inventive concept can be found in the non-conventional and non-generic arrangement of known, conventional pieces."). Specifically, lack of novelty under 35 U.S.C. 102 or obviousness under 35 U.S.C. 103 of a claimed invention does not necessarily indicate that additional elements are well-understood, routine, conventional elements. Because they are separate and distinct requirements from eligibility, patentability of the claimed invention under 35 U.S.C. 102 and 103 with respect to the prior art is neither required for, nor a guarantee of, patent eligibility under 35 U.S.C. 101; see MPEP 2106.05(I). For at least these reasons, claim 9 remains rejected under 35 U.S.C. § 101 as being directed to non-statutory subject matter.
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 1-14 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
Step 1: The claimed subject matter falls within the four statutory categories of patentable subject matter.
Claims 1-14 are directed towards a method, which is among the statutory categories of invention.
Step 2A – Prong One: The claims recite an abstract idea.
Claim 1 recites managing assignment plans based on predicted vacancies and resource bids and claim 9 recites updating schedule plans based on resource priority analysis.
Claim 1 recites limitations directed to an abstract idea based on mental processes and certain methods of organizing human activity. Specifically, updating tentative vacancies for roles in an assignment plan; evaluating the assignment plan based on a probabilistically generated set of simulated bids for resources to fill the tentative vacancies based on historically observed bidding patterns, and based on priority rules; determining, with the processor based on the cascading assignment planner, whether the set of simulated bids fulfill the assignment plan according to an assignment threshold; in response to determining that the set of simulated bids do not fulfill the assignment plan according to the assignment threshold, updating, with the processor based on the cascading assignment planner, the tentative vacancies for the roles in the assignment plan and repeating the evaluating based on simulated bids for resources to fill the tentative vacancies as updated; and evaluating, with the processor based on the cascading assignment planner, the assignment plan based on the actual bids constitutes methods based on evaluations, observation and judgement that can be performed by a combination of the human mind and a human using pen and paper, as well as methods based on commercial or legal interactions, managing personal behavior or interactions or relationships between people. The recitation of a processor based on a cascading assignment planner stored in a memory does not take the claim out of the mental processes or certain methods of organizing human activity groupings. Thus the claim recites an abstract idea.
Claim 9 recites limitations directed to an abstract idea based on mental processes and certain methods of organizing human activity. Specifically, identifying competing bids from at least two resources for a plurality of update paths; reading the competing bids for priority keys that identify preferences and priorities for associated resources of the at least two resources for individual update paths of the plurality of update paths based on priority rules, the priority keys dividing the plurality of update paths into subdivisions; dividing the competing bids based on the priority keys so that separate groups of resources are not considered competing for a given bid; evaluating the priority keys as including a priority and a preference for each of the at least two resources on each of a plurality of the update paths; combining an offset with an initial priority of a first resource as a priority freeze applied as a temporary adjustment to baseline priority levels of the resources; combining the offset with the initial priority instead of making a date comparison to determine using the temporary adjustment to the priority of a given resource; linking an update-input to a second resource when a first resource has been linked to an update-input with one of a same preference and a higher preference and determining an update order for the at least two resources via the update paths that respects the preferences and priorities associated with the priority keys constitutes methods based on evaluations, observation and judgement that can be performed by a combination of the human mind and a human using pen and paper, as well as methods based on commercial or legal interactions, managing personal behavior or interactions or relationships between people. The recitation of a processor based on a cascading assignment planner stored in a memory does not take the claim out of the mental processes or certain methods of organizing human activity groupings. Thus the claim recites an abstract idea.
Step 2A – Prong Two: The judicial exception is not integrated into a practical application.
The judicial exception is not integrated into a practical application. In particular, claim 1 recites in response to determining that a second set of simulated bids fulfill the assignment plan according to the assignment threshold, publishing, with the processor based on the cascading assignment planner, the tentative vacancies as actual vacancies for actual bids; receiving, with the processor based on the cascading assignment planner, actual bids from at least a portion of the resources; in response to determining that the actual bids fulfill the assignment plan, publishing, with the processor based on the cascading assignment planner, an update plan based on the actual bids as awarded to the resources; and outputting, with the processor, the update plan to a user and claim 9 recites and releasing, with the processor based on the cascading assignment planner, an update plan scheduled according to the update order; and outputting, with the processor, the update plan to a user, which are limitations considered to be an insignificant extra-solution activity of collecting and delivering data; see MPEP 2106.05(g). Additionally, claims 1 and 9 recites a processor based on the cascading assignment planner stored in a memory at a high-level of generality such that it amounts to no more than generic computer components used as tools to apply the instructions of the abstract idea; see MPEP 2106.05(f). Thus, the additional elements do not integrate the abstract idea into practical application because they do not impose any meaningful limitations on practicing the abstract idea. Claims 1 and 9 are directed to an abstract idea.
Step 2B: The claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception.
The claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception. The additional elements in the claims other than the abstract idea per se, including the processor based on a cascading assignment planner stored in a memory amounts to no more than a recitation of generic computer elements utilized to perform generic computer functions, such as receiving or transmitting data over a network, e.g., using the Internet to gather data, Symantec, 838 F.3d at 1321, 120 USPQ2d at 1362 (utilizing an intermediary computer to forward information); buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355, 112 USPQ2d 1093, 1096 (Fed. Cir. 2014) (computer receives and sends information over a network);electronic recordkeeping, Ultramercial, 772 F.3d at 716, 112 USPQ2d at 1755 (updating an activity log) and storing and retrieving information in memory, Versata Dev. Group, Inc. v. SAP Am., Inc., 793 F.3d 1306, 1334, 115 USPQ2d 1681, 1701 (Fed. Cir. 2015); OIP Techs., 788 F.3d at 1363, 115 USPQ2d at 1092-93; see MPEP 2106.05(d)(II). Viewed as a whole, these additional claim elements do not provide meaningful limitations to transform the abstract idea into a patent eligible application of the abstract idea such that the claims amount to significantly more than the abstract idea itself. Therefore, since there are no limitations in the claim that transform the abstract idea into a patent eligible application such that the claim amounts to significantly more than the abstract idea itself, the claims are rejected under 35 U.S.C. § 101 as being directed to non-statutory subject matter.
§ 101 Analysis of the dependent claims.
Regarding the dependent claims, claim 14 recite an electrical generator limitation that is not technological in nature and merely limits the abstract idea to a particular environment. Claims 2-8 and 10-14 recite additional limitations constituting methods based on evaluations, observation, opinion and judgement that can be performed by a combination of the human mind and a human using pen and paper, as well as methods based on managing personal behavior or interactions or relationships between people and commercial or legal interactions. No additional elements are disclosed in the dependent claims that weren’t considered in independent claims 1 and 9. Therefore claims 2-8 and 10-14 do not provide meaningful limitations to transform the abstract idea into a patent eligible application of the abstract idea such that the claims amount to significantly more than the abstract idea itself.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Harthcryde et al. (US 20070198317 A1) – A system to realign an organization structure, program product, and associated methods are provided. The system includes an organization realignment program server, a database accessible to the organization realignment program server, a plurality of process development team member computers, a plurality of process development representative computers, and an organization realignment program product stored in the memory of the organization realignment program server to facilitate reorganization program development through online access to the plurality of data records. The organization realignment program product can provide organization analysis web pages to capture data used to analyze and define functions, activities, tasks, and roles, forming a new organization structure, and can provide resource determination web pages to determine a qualified supply of resources available to the new organization structure to thereby determine a skills gap and a resource gap between resources demanded by the new organization structure and the qualified supply of resources.
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/CRYSTOL STEWART/Primary Examiner, Art Unit 3624
