DETAILED ACTION
This is a Final office action on the merits in application number 17/810,278. This action is in response to Applicant’s Amendments and Arguments dated 12/8/2025. Claims 1-8 and 10-21 were amended and no claims were cancelled. Claims 1-21 are pending and have been examined on the merits.
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 .
Claim Objections
The objection to Claim 11 is withdrawn in view of Applicant’s amendments
Response to Arguments
Regarding 35 USC 101 rejection:
Applicant asserts on page 20, top, that Applicant’s claims do not recite any “any commercial or legal interactions including agreements in the form of contracts, legal obligations, marketing or sales activities or behaviors, and business relations”. As discussed, infra, Applicant recites the common commercial practice of a merchant sourcing products to fulfill an order and the merchant selecting a particular source or combination of sources to maximize the profits of their business, which is an abstract idea in the category of Certain Methods of Organizing Human Activity in the sub-category of commercial or legal interactions because it is a common marketing or sales activity. Applicant recites in their specification at [06] to [07] that the problem that they are trying to solve relates to “profitability of an order” and “there is a need for an improved order fulfillment system, especially where this system increase profitability and reduces the number of splits”. Applicant does not state or imply in the specification any goal or purpose relating to improving a computer or other technology, nor do they detail any specific measurable technical solution. Applicant is purely solving a business problem not a technical problem. Applicant’s claims are directed to the abstract idea because they are directed to calculating and maximizing profit of goods sold.
Applicant asserts on page 20, bottom, to page 21, top, that “the Office action erroneously focuses on "profitability" while intentionally or inadvertently funneling its vision on the term "profitability" and ignoring the fact that the claimed invention is to co-optimize multiple objectives at the same time for logistics. For example, the Specification further states that "[l]inear programming is used to ensure that the objective function-minimizing splits and maximizing EBIT is performed," that "[t]his optimization excels at ensuring that all the possibilities are considered, and the best possible choice is picked," that "[l]inear programming is used to minimize splits by casting the set cover problem in mathematics (minimum number of subsets needed to cover a set) as an objective function where we look to minimize the number of stores needed to fulfill an order with a set of constraints around inventory and capacity”. Applicant apparently misunderstands Examiner’s rejection. To be clear: As discussed in the 35 USC 101 rejection, infra, Examiner holds that Applicant claims manipulating **data** for the sole purpose of “maximizing EBIT” (Earnings before interest and taxes) which is a financial measurement used as a measure of a company’s profitability from its core operations. The fundamental function of Applicant’s claim is directed to using a mathematical tool to solve a business problem. “Minimiz(ing) the number of stores needed to fulfill an order” is a business problem, not a technical problem or even a logistics problem. Although there may be a derivative *unclaimed effect* on logistics, Applicant does not specifically claim resolving a logistics problem (i.e. problems involving obstacles to the planning, coordinating and moving of goods) and the claims are certainly not directed to resolving a specific logistics problem. Applicant uses the well known mathematical optimization tool of linear programing for the purpose for which it is intended – to iteratively narrow solution sets to find the “best” solution, given constraints. Applicant did not invent linear programming and does not improve linear programming itself, Applicant is merely using this common tool in a generic way to solve a business problem.
Applicant asserts on page 21, top, that Examiner “oversimplifies the claimed invention”. MPEP 2106 (II) states: “It is essential that the broadest reasonable interpretation (BRI) of the claim be established prior to examining a claim for eligibility. The BRI sets the boundaries of the coverage sought by the claim and will influence whether the claim seeks to cover subject matter that is beyond the four statutory categories or encompasses subject matter that falls within the exceptions… With regard to the second criterion for eligibility, the Alice/Mayo test, claim interpretation can affect the first part of the test (whether the claims are directed to a judicial exception)… Claim interpretation can also affect the second part of the Alice/Mayo test (whether the claim recites additional elements that amount to significantly more than the judicial exception)”. Examiner notes that MPEP 2111 *requires* that the Examiner give the claims “their broadest reasonable interpretation consistent with the specification"” (emphasis in original). Examiner is not “oversimplifying”, Examiner is evaluating the BRI of the claim elements individually and in combination and finds that the BRI of Applicant’s claims are directed to solving a business problem and Applicant does not recite a “technological solution to a technological problem” as required under MPEP 2106.05(f)(1).
Applicant asserts on page 21, center, that their claims contain additional elements that integrate the abstract idea into a practical application and amount to significantly more. Applicant asserts on page 21, bottom to page 22, top, that because they iteratively reduce the quantity of data processed that they “improve the technological field pertaining to online order fulfillment”. As discussed in the 35 USC 101 rejection, infra, Applicant’s claims are directed to *using* a general purpose linear programming model and applicant does not claim any specific limitations directly relating to or enabling the quantification of any “improvement to online order fulfillment”. Applicant further asserts on page 21, center, that their claims improve the functioning of computers because they reduce “computer storage”, “processing requirements” and “memory footprint” by iteratively running the model and reducing the data in each step. MPEP 2106.05(a) defines the requirements for improvements to the functioning of a computer or to any other technology or technical field and states “the claim must be evaluated to ensure the claim itself reflects the disclosed improvement in technology… the claim must include the components or steps of the invention that provide the improvement described in the specification… It is important to note, the judicial exception alone cannot provide the improvement. The improvement can be provided by one or more additional elements”. In this case Applicant does not claim “computer storage”, “processing requirements” and “memory footprint”. Applicant further does not describe in the specification any technical detail that would lead to determining an amount of “computer storage”, “processing requirements” and “memory footprint” before their “improvement” nor an amount of “computer storage”, “processing requirements” and “memory footprint” after their “improvement”. Applicant does not disclose any specific tools to even measure a reduction or improvement in these items. Applicant claims listing all of the company’s facilities then removing some of them from the list because they do not have enough of the product to supply the order. Applicant then calculates profit and removes more facilities from the list because supplying from some facilities is not profitable enough. MPEP 2106.05(a)(I) provides examples of fact patterns that are “not sufficient to show an improvement to computer-functionality” (Citing FairWarning): “ii. Accelerating a process of analyzing audit log data when the increased speed comes solely from the capabilities of a general-purpose computer”. MPEP 2106.05(a)(II) discusses “Improvements to Any Other Technology or Technical Field” and (citing Trading Technologies) states “the court determined that the claimed user interface simply provided a trader with more information to facilitate market trades, which improved the business process of market trading but did not improve computers or technology”. The same section provides examples of provides examples of fact patterns that are “not sufficient to show an improvement to technology” (citing Alice) “i. A commonplace business method being applied on a general purpose computer” and (citing TLI Communications) “Gathering and analyzing information using conventional techniques and displaying the result”. Applicant’s “reduction of memory footprint” and “reduction of comput(ing) power” are: 1) not a result of any additional elements, 2) come solely from the capabilities of a general-purpose computer and, 3) while they may improve data, they do not improve any technology. Applicant’s arguments have been considered but are not persuasive, the rejection is maintained.
Additionally, as discussed in the 35 USC 101 rejection, infra, Applicant’s claims 7 and 19 are also rejected under 35 USC 101 for being directed to an abstract idea in the category of Mathematical Concepts. Applicant asserts on page 22, bottom, to page 23, top, that these claims “do not recite any known mathematical formulae, known mathematical equations, known mathematical principle, or "generic computer functions." Rather, claims 7 and 19 recite a specific term that includes the product of two specific pieces of data where this limitation is entirely invented by the inventors to facilitate the claimed invention”. MPEP 2106.04(I) states “a new abstract idea is still an abstract idea”). Whether a mathematical concept is “known” is not the test of its abstraction. MPEP 2106.04(a)(2)(I) states that “a mathematical relationship is a relationship between variables or numbers” and “can be expressed in words or using mathematical symbols”. MPEP 2106.04(a)(2)(I)(C) states “A claim that recites a mathematical calculation, when the claim is given its broadest reasonable interpretation in light of the specification, will be considered as falling within the "mathematical concepts" grouping. A mathematical calculation is a mathematical operation (such as multiplication) or an act of calculating using mathematical methods to determine a variable or number, e.g., performing an arithmetic operation such as exponentiation. There is no particular word or set of words that indicates a claim recites a mathematical calculation. That is, a claim does not have to recite the word "calculating" in order to be considered a mathematical calculation. For example, a step of "determining" a variable or number using mathematical methods or "performing" a mathematical operation may also be considered mathematical calculations when the broadest reasonable interpretation of the claim in light of the specification encompasses a mathematical calculation”. MPEP 2106.04(a)(2)(I)(C) provides examples of mathematical calculations such as “using an algorithm for determining the optimal number of visits by a business representative to a client”. In Claim 7 Applicant recites: “determining the… value” and “using…a product of the first component and the second component” and “reducing (a quantity of facilities) by applying the product of the first component and the second component”. In Claim 19 Applicant recites: “adjusting…value…by multiplying… value by (a factor)… to obtain… value…wherein (one value) is greater than (another value)”. Applicant does not recite any additional elements thus Claims 7 and 19 are directed to an abstract idea in the category of Mathematical Concepts. Applicant does not recite significantly more thus Claims 7 and 9 are not patent eligible.
Applicant’s arguments have been considered but are not persuasive, the rejection is maintained.
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.
Examiner is using the “step” annotation from the flowchart of MPEP 2106 (III), and MPEP 2106.04 and MPEP 2106.05 for clarity.
Claims 1-21 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
Step 1:
Independent Claims 1 and 8 and dependent claims 2-7 and 9-15 recite a method (process) and Independent Claim 16 and dependent claims 17-21 recite a system that includes a server (machine) thereby Claims 1-21 fall into one of the four statutory categories of invention.
Step 2A, prong 1:
Claim 16 will be used as exemplary. Applicant recites the following elements in Claim 16 (and similarly in Claims 1 and 8):
(currently amended) A system comprising: a website presenting information of at least a first item and a second item for placing online orders; a plurality of facilities available to fulfill an online order, the plurality of facilities comprising: a first retail store comprising a first inventory of the first item and no inventory of the second item, a second retail store comprising a second inventory of the first item and no inventory of the second item, and a first distribution center comprising no inventory of the first item and a third inventory of the second item; a network connecting each of the plurality of facilities to an order fulfillment server that routes order information of the online order to the plurality of facilities for fulfilling the online order; an order fulfillment server receiving (1) the online order from the website through the network and (2) a list structure, wherein the online order comprises a first quantity of the first item and a second quantity of the second item, and the online order is to be fulfilled by splitting the online order across two or more facilities of the plurality of facilities, and the list structure comprises a plurality of facility entries each respectively corresponding to a facility of the plurality of facilities and a capacity value for the facility; the order fulfillment server executing a first set of instructions that successively reduces a total number of the plurality of facilities in the list structure first into a first reduced list structure smaller than the list structure based at least in part upon a capacity respectively corresponding to a first facility, then into a second reduced list structure smaller than the first reduced list structure based at least in part upon an inventory protection value corresponding to a second facility, and subsequently into a third-reduced list structure smaller than the second reduced list structure based at least in part upon an inventory value and the inventory protection value of a third facility, and that further generates a plurality of facility-item combinations to fulfill the online order; the order fulfillment server generating a rearranged, reduced, ordered data structure at least by reducing an ordered data structure that stores the plurality of facility-item combinations using at least the third reduced list structure; the order fulfillment server executing an order fulfillment plan based at least in part upon a first objective and a weighted second objective at least by performing a looping process that iteratively loops through the rearranged, reduced, ordered data structure, wherein iteratively looping through the rearranged, reduced, ordered data structure comprises: determining a respective weight for each item of the multiple items in each facility-item combination corresponding to a facility in the rearranged, reduced, ordered data structure based at least in part upon future earnings data pertaining to the each facility-item combination; and weighting a second objective by the respective weight into the weighted second objective, wherein the first objective aims at the future earnings data for the facility represented by the each facility-item combination, and the second objective aims at reducing or minimizing a total number of split shipments for the online order, and the order fulfillment plan is used to generate electronic instructions for fulfilling the online order; and the order fulfillment server fulfilling the online order at least by extracting and routing a first electronic instruction of the electronic instructions that includes information about the second quantity of the second item from the online order via the network to a distribution center computing device of the first distribution center, and further at least by extracting and routing a second electronic instruction of the electronic instructions that includes information about the first quantity of the first item to a first retail store computing device of the first retail store, instead of the second retail store, based at least in part upon a comparison between the first in-memory representation of the earnings data or the future earnings data of the first retail store and the earnings data or the future earnings data of a second retail store.
Examiner has bolded the non-abstract elements.
In Claim 16 (and similarly in Claims 1 and 8) Applicant recites the commercial practice of a merchant sourcing products to fulfill an order and the merchant selecting a particular source or combination of sources to maximize the profits of their business. This is an abstract idea in the category of Certain Methods of Organizing Human Activity in the sub-category of commercial or legal interactions because it is a commercial interaction and is a common marketing or sales activity. Similarly Independent Claims 1 and 8 also recite the same abstract idea. Dependent claims 2-7, 9-15 and 17-21 also recite the same abstract idea by virtue of their dependency on Claims 1, 8 and 16, respectively. Accordingly Claims 1-21 recite an abstract idea.
Further, Claims 7 and 19 also recite an abstract idea in the category of Mathematical Concepts. MPEP 2106.04(a)(2)(I) states that “a mathematical relationship is a relationship between variables or numbers” and “can be expressed in words or using mathematical symbols”. MPEP 2106.04(a)(2)(I)(C) states “A claim that recites a mathematical calculation, when the claim is given its broadest reasonable interpretation in light of the specification, will be considered as falling within the "mathematical concepts" grouping. A mathematical calculation is a mathematical operation (such as multiplication) or an act of calculating using mathematical methods to determine a variable or number, e.g., performing an arithmetic operation such as exponentiation. There is no particular word or set of words that indicates a claim recites a mathematical calculation. That is, a claim does not have to recite the word "calculating" in order to be considered a mathematical calculation. For example, a step of "determining" a variable or number using mathematical methods or "performing" a mathematical operation may also be considered mathematical calculations when the broadest reasonable interpretation of the claim in light of the specification encompasses a mathematical calculation”. MPEP 2106.04(a)(2)(I)(C) provides examples of mathematical calculations such as “using an algorithm for determining the optimal number of visits by a business representative to a client”. In Claim 7 Applicant recites: “determining the… value” and “using…a product of the first component and the second component” and “reducing (a quantity of facilities) by applying the product of the first component and the second component”. In Claim 19 Applicant recites: “adjusting…value…by multiplying… value by (a factor)… to obtain… value…wherein (one value) is greater than (another value)”. Claims 7 and 19 recite an abstract idea in the category of Mathematical Concepts.
Step 2A, prong 2:
In addition to the abstract ideas discussed above, Claim 16 also recites the additional elements of: facilities/retail store/distribution center, order fulfillment server, website, network, (server) memory, distribution center computing device and retail store computing device.
Claim 16 recites that “facilities” are comprised of “retail store(s)” and a “distribution center”. Applicant describes “retail stores” at a high level of generality in the specification at [79] as a general purpose retail store that has “floor space for customers who shop at the store to see and try on the garments and other products being sold there”. Applicant does not describe any technical details or add any meaningful limitations that would limit the normal function of a retail store of displaying products for sale. Applicant describes “distribution center” in the specification at [10] as a location that stores products that “replenish inventory at the retail stores and to fulfill online orders”. Applicant does not describe any technical details or add any meaningful limitations that would limit the normal function of a distribution center of storing and distributing goods.
Claim 16 recites “order fulfillment server”. Applicant describes “order fulfillment server” in the specification at [09], [11], 14-15] and describes a “server” in [32] and Figs 1 and 2. Applicant’s “order fulfillment server” is described as a general purpose computer without any detailed technical disclosure of any special features or benefits relating to Applicant’s inventive concept. Applicant recites in [36] that “the present invention is not limited to any computing device in a specific form factor… but can included all types of computing devices in various form factors” and lists multiple computer technologies. The order fulfillment server is recited at a high level of generality and amounts to no more than instructions to apply the exception using a general purpose computer.
Claim 16 recites a “website”. Applicant describes “web site” in [70] and [167] of the specification as a general purpose e-commerce website without any detailed technical disclosure of any special features or benefits relating to Applicant’s inventive concept. The “web site” is recited at a high level of generality and amounts to no more than instructions to apply the exception using a general purpose software construct.
Claim 16 recites a “network”. Applicant describes “network” in the specification at [27] and [47] and Fig 1 and further describes this in [29] as one of many possible electronic network technologies. Applicant recites a general purpose electronic network without any detailed technical disclosure of any special features or benefits relating to Applicant’s inventive concept. The “network” is recited at a high level of generality and amounts to no more than instructions to apply the exception using a general purpose electronic network.
Claim 16 recites a (server) “memory”. Applicant describes (server) “memory” in [39-42] of the specification and describes this in [39] as one of many possible electronic memory technologies. Applicant describes this element as a general purpose computer memory without any detailed technical disclosure of any special features or benefits relating to Applicant’s inventive concept. Applicant’s “memory” is recited at a high level of generality and amounts to no more than instructions to apply the exception using a general purpose computer memory.
Claim 16 recites a “distribution center computing device” and “retail store computing device”. Applicant does not appear to recite either of these elements in their specification. Applicant recites [61] “the fulfillment plan is sent to the facilities, where the order is picked and packed and shipped to the customer 467” and [62] “This notification to store is given by, e.g., a mobile app to fulfill the order”. Applicant does not specifically disclose a computing device in a distribution center or a computing device in a retail store. This element is assumed to be a general purpose computer without any detailed technical disclosure of any special features or benefits relating to Applicant’s inventive concept. Applicant recites in [36] that “the present invention is not limited to any computing device in a specific form factor… but can included all types of computing devices in various form factors” and lists multiple computer technologies. The distribution center computing device and retail store computing device are recited at a high level of generality and amount to no more than instructions to apply the exception using a general purpose computer.
MPEP 2106.05(f) states that merely adding a general purpose computer or computer components to an abstract idea does not amount to significantly more. Further, MPEP 2106.05(f)(2) states “Use of a computer or other machinery in its ordinary capacity for economic or other tasks (e.g., to receive, store, or transmit data) or simply adding a general purpose computer or computer components after the fact to an abstract idea (e.g., a fundamental economic practice or mathematical equation) does not integrate a judicial exception into a practical application”.
“Facility”, “facilities” and “particular facility” are also recited in Claims 1-4. “Retail store” is also recited in Claims 1, 6, 8-13 and 17. “Distribution Center” is also recited in Claims 1 and 8. “Order fulfillment server” is also recited in Claims 1, 8, 9, 17 and 18. “Website” is also recited in Claim 8. “Network” is also recited in Claims 1 and 8. “Memory” is also recited in Claims 1 and 17. “Distribution center computing device” or “retail store computing device” are not recited in any other claims. Claim 8 also recites “computing device of a customer” and this is described, as above, as a general purpose computer without any detailed technical disclosure of any special features or benefits relating to Applicant’s inventive concept. No other additional elements are claimed.
Applicant claims storing and retrieving data from general purpose computers and further claims the content of electronic messages (also data) that is manipulated and output by general purpose computers. Thus the facilities/retail store/distribution center, order fulfillment server, website, network, (server) memory, distribution center computing device and retail store computing device are not significantly more and they do not integrate the abstract idea into a practical application. The claims as a whole do not integrate the abstract idea into a practical application because they do not impose any meaningful limitations on practicing the abstract idea. Claims 1- 21 are therefore directed to an abstract idea.
Further, Claims 7 and 19 do not recite any additional elements thus Claims 7 and 19 are directed to an abstract idea in the category of Mathematical Concepts.
Step 2B: As discussed above, Applicant claims the abstract idea of the commercial interaction of a merchant sourcing products to fulfill an order and the merchant selecting a particular source or combination of sources to maximize the profits of their business. As discussed above, Applicant also recites the additional elements of: facilities/retail store/distribution center, order fulfillment server, website, network, (server) memory, distribution center/retail store/customer computing device.
As discussed above with respect to Step 2A, the claimed order fulfillment server, website, network, (server) memory, distribution center/retail store/customer computing device are recited at a high level of generality and amount to no more than instructions to apply the exception using general purpose computer systems. MPEP 2106.05(f) states that merely adding a general purpose computer or computer components to an abstract idea does not amount to significantly more, thus order fulfillment server, website, network, (server) memory, distribution center/retail store/customer computing device are not significantly more.
As discussed above with respect to Step 2A, the claimed additional elements of facilities/retail store/distribution center, order fulfillment server, website, network, (server) memory, distribution center/retail store/customer computing device, alone or in combination with the rest of the claim does not improve the functioning of a computer or any other technology or technological field. The additional element alone or in combination with the rest of the claim do not apply the judicial exception to a particular (non-general purpose) machine. The additional elements alone or in combination with the rest of the claim do not effect a transformation or reduction of a particular article to a different state or thing. Applicant does not claim or teach in their specification any special purpose hardware or improvements thereof. Therefore, the claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception.
Dependent Claims 2-7, 9-15 and 17-21 contain the same abstract idea by virtue of their dependency on Claims 1, 8 and 16, respectively and further limit the abstract idea. Claim 2 further limits the abstract idea by limiting the capacity and contains the same abstract idea by virtue of its dependency on Claim 1. Claims 3-4, 6-7, 13-15, and 17-21 further limit the abstract idea by limiting the inventory protection value and contain the same abstract idea by virtue of their dependency on Claims 1, 8 and 16, respectively. Claim 5 further limits the abstract idea by limiting the inventory and contains the same abstract idea by virtue of its dependency on Claim 1. Claim 9 further limits the abstract idea by limiting the location of facilities and contains the same abstract idea by virtue of its dependency on Claim 8. Claims 10 and 12 further limit the abstract idea by limiting the cost of goods sold and contain the same abstract idea by virtue of their dependency on Claim 1. Claim 11 further limits the abstract idea by limiting the selection and contains the same abstract idea by virtue of its dependency on Claim 8.
Further, Applicant does not recite additional elements or significantly more than the abstract idea of Mathematical Concepts in Claims 7 and 9 thus Claims 7 and 9 are not patent eligible.
Claims 1-21 are not patent eligible.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KIMBERLY S BURSUM whose telephone number is (571)272-8213. The examiner can normally be reached M-F 9:30 AM - 6:30 PM.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Florian (Ryan) m Zeender can be reached at 571-272-6790. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/KIMBERLY S. BURSUM/ Examiner, Art Unit 3627
/FLORIAN M ZEENDER/Supervisory Patent Examiner, Art Unit 3627