Notice of Pre-AIA or AIA Status
1. The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
DETAILED ACTION
2. This Final Office action is in response to the application filed on July 25th, 2022 and in response to Applicant’s Arguments/Remarks filed on September 11th, 2026. Claims 225-244 are pending.
Priority
3. Application 17/814,554 was filed on July 25th, 2022 which is a continuation of 17/564,332 filed on December 29th, 2021 which has provisional applications 63/113,490 and 63/091,009 filed on November 13th, 2020 and October 13th, 2020 respectively.
Examiner Request
4. The Applicant is requested to indicate where in the specification there is support for amendments to claims should Applicant amend. The purpose of this is to reduce potential 35 U.S.C. §112(a) or §112 1st paragraph issues that can arise when claims are amended without support in the specification. The Examiner thanks the Applicant in advance.
Response to Arguments
5. Applicant’s arguments regarding the rejection of claims 225-244 under 35 U.S.C. § 101 have been fully considered but are not persuasive.
6. Applicant argues that amended claim 225 recites a specific improvement to an image-processing pipeline because the system evaluates an ambiguity level resulting from image analysis, compares the ambiguity level to a threshold determined based on a pending task of the store associate, and conditionally requests supplemental information when the ambiguity level exceeds the threshold. Applicant characterizes this functionality as a technical feedback loop that determines when human assistance should be invoked and argues that the claimed functionality is analogous to the technological improvements found eligible in Enfish and Finjan. Examiner respectfully disagrees. As set forth in the rejection under Step 2A, Prong 1, calculating an ambiguity level concerning the association of a pay-by-weight product with a shopper, comparing that ambiguity level against a predetermined threshold determined based on a pending task of the store associate, and determining whether supplemental information should be requested to assist in the product-to-shopper association are part of the recited commercial or sales activity. The claimed ambiguity level and threshold determine whether additional information should be obtained to complete the product-to-shopper association used in the shopper’s retail transaction. Further, the claim does not recite an improvement to the operation of the image-processing unit, image sensors, image-analysis techniques, or computer itself. The image analysis provides information used in determining the product-to-shopper association, while the pending task of the store associate is used in determining the threshold for requesting supplemental information. The claim does not recite a modification to an image-processing algorithm, an improvement in image acquisition or image quality, a new computer architecture, or another change in how the underlying computer or image-processing technology operates. Thus, characterizing the claimed decision process as a “technical feedback loop” does not establish that the claim improves the functioning of the computer or image-processing technology itself. Rather, the recited computer and image-processing components are used as tools in carrying out the claimed product-to-shopper association. Applicant’s reliance on Enfish and Finjan is therefore not persuasive. Those cases involved claims found to recite specific improvements in computer functionality or computer-related technology. Here, the claimed ambiguity determination and conditional solicitation of supplemental information determine when additional information should be obtained to resolve the product-to-shopper association underlying the retail transaction, and the claim does not recite a corresponding improvement to the operation of the computer or image-processing technology.
7. Applicant further argues that the conditional notification is not merely the presentation of information because the notification results from the claimed ambiguity determination and is triggered only when the ambiguity level exceeds the predetermined threshold. Applicant analogizes the claimed notification to the improved user interface considered in Core Wireless. Examiner respectfully disagrees. Although the condition for providing the notification is determined by the preceding claimed analysis, the notification itself communicates a request for supplemental information to the store associate for use in determining the product-to-shopper association. The claim does not recite an improvement to the operation of the display device or to user-interface technology. Accordingly, the fact that the notification is conditionally generated does not transform the display of the notification into an improvement to computer or user-interface technology.
8. Applicant also argues that the claimed combination cannot practically be performed in the human mind because a person could not simultaneously track computer image-analysis outputs, calculate ambiguity levels, monitor pending tasks, and make the claimed determinations in near-real time across multiple shoppers and product interactions. This argument does not overcome the rejection. As set forth in the revised rejection, representative claim 225 recites a certain method of organizing human activity, namely a commercial or sales activity. The rejection therefore does not depend upon characterizing the claimed invention as a mental process. The use of computer technology to perform the recited commercial or sales activity does not, by itself, remove the claim from the identified abstract-idea grouping or establish integration of the judicial exception into a practical application.
9. With respect to Step 2B, Applicant argues that the claimed combination is not well-understood, routine, and conventional because the Office previously indicated that prior art had not been identified teaching the particular combination of calculating an ambiguity threshold based on a pending task of a store associate and providing a notification when the threshold is met. Applicant further relies on Berkheimer and BASCOM and argues that the claimed arrangement provides an inventive concept.
Examiner respectfully disagrees that the absence of an identified prior-art teaching of the particular claimed combination establishes that the claim necessarily amounts to significantly more than the judicial exception. Novelty and nonobviousness are separate inquiries from subject matter eligibility. Moreover, as set forth in the rejection, the ambiguity calculation, threshold determination, and determination of whether supplemental information should be requested form part of the identified abstract commercial or sales activity. Accordingly, the fact that the particular abstract process may not have been identified in the prior art does not, by itself, establish that the additional elements supply an inventive concept. Under Step 2B, the additional elements are considered individually and as an ordered combination to determine whether they amount to significantly more than the judicial exception. As set forth in the rejection, the recited processor, image sensors, image-processing unit, database, image-analysis techniques, network, and display devices provide the technological tools used to implement the claimed product-to-shopper association and retail transaction. Considered individually and as an ordered combination, these additional elements do not provide an inventive concept beyond implementation of the identified abstract idea. Applicant’s reliance on BASCOM is therefore not persuasive because Applicant has not identified a non-conventional arrangement of the additional technological elements that changes how those elements operate; rather, the additional elements are used to obtain, analyze, communicate, and display information used in carrying out the claimed commercial process.
10. Independent claims 243 and 244 recite substantially corresponding functionality in method and system form, respectively, and Applicant’s arguments do not establish a different eligibility result for those claims. The dependent claims likewise do not alter the eligibility analysis for the reasons set forth in the rejection. In particular, claims 226-228 and 233-242 do not recite further additional elements that integrate the judicial exception into a practical application or amount to significantly more, while the further additional elements separately identified for claims 229-232, a service robot and associated sensors, a computing device, barcode scanning, and RFID-tag interrogation do not alter the analysis for the reasons specifically set forth in the rejection.
11. Accordingly, Applicant’s arguments have been fully considered but are not persuasive. The claims recite a judicial exception that is not integrated into a practical application, and the additional elements, considered individually and as an ordered combination, do not amount to significantly more than the judicial exception. Therefore, the rejection of claims 225-244 under 35 U.S.C. § 101 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.
12. Claims 225-244 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception without significantly more. The claims recite an abstract idea. This judicial exception is not integrated into a practical application. The claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception.
The steps for determining eligibility under 35 U.S.C. 101 can be found in the MPEP § 2106.03-2106.05.
Under Step 1, the claims are directed to statutory categories. Specifically, the non-transitory computer-readable medium, as claimed in claims 225-242, is directed to an article of manufacture. Additionally, the method, as claimed in claims 243, is directed to a process. Furthermore, the system, as claimed in claim 244, is directed to a machine.
While the claims fall within statutory categories, under Step 2A, Prong 1, the claimed invention recites the abstract idea of shopping for items by weight. Specifically, representative claim 225 recites the abstract idea of:
displaying contents of a shopping cart associated with a particular shopper of a plurality of shoppers;
receiving one or more images captured, wherein the one or more images depict product interactions between a store associate and a plurality of shoppers, wherein each of the product interactions involves at least one pay-by-weight product;
analyzing the one or more images to identify the product interactions to automatically recognize a size, shape, product label, logo, color, texture, location, or quantity of the at least one pay-by-weight product and to associate the at least one pay-by-weight product involved with each product interaction with the particular shopper among the plurality of shoppers;
calculates an ambiguity level based on the analysis of the one or more images with respect to the association of the at least one pay-by-weight product involved with each product interaction with the particular shopper among the plurality of shoppers, and wherein the ambiguity level is compared against a predetermined threshold, wherein the predetermined threshold is determined based on at least one pending task of the store associate;
with a store associate different from the customer, providing a notification to the store associate when the ambiguity level is greater than the predetermined threshold requesting supplemental information to assist in the association of the at least one pay-by-weight product involved with a selected product interaction with the particular shopper among the plurality of shoppers;
receiving the requested supplemental information from the store associate;
wherein the notification provided to the store associate includes a request to match the particular shopper to the at least one pay-by weight product, and wherein the supplemental information includes a detected gesture by the store associate represented in additional images, and analyzing the additional images to detect the detected gesture and identify a particular shopper that received the at least one pay-by-weight product based on the detected gesture;
using only the analysis of the one or more images and the requested supplemental information to determine the association of the at least one pay-by-weight product involved with the selected product interaction with the particular shopper among the plurality of shoppers;
based on the association, dynamically updating a shopping cart of the particular shopper among the plurality of shoppers with the at least one pay-by-weight product involved with the selected product interaction; and
with the customer, based on the updating, dynamically displaying the updated contents of the shopping cart.
Under Step 2A, Prong 1, it is necessary to evaluate whether the claim recites a judicial exception by referring to subject matter groupings articulated in the guidance. When considering MPEP §2106.04(a), the claims recite an abstract idea. For example, representative claim 225 recites the abstract idea of shopping for items by weight, as noted above. This concept is considered to be a certain method of organizing human activity. Certain methods of organizing human activity are defined in the MPEP as including “fundamental economic principles or practices (including hedging, insurance, mitigating risk); commercial or legal interactions (including agreements in the form of contracts; legal obligations; advertising, marketing or sales activities or behaviors; business relations); managing personal behavior or relationships or interactions between people (including social activities, teaching, and following rules or instructions).” MPEP §2106.04(a)(2) subsection II. In this case, the abstract idea recited in representative claim 225 is a certain method of organizing human activity because identifying a product interaction, associating a pay-by-weight product with a particular shopper, determining whether additional information from a store associate should be requested to assist that association, and updating the particular shopper’s shopping cart based on the association are part of the commercial or sales activity involved in completing the shopper’s retail transaction. Thus, representative claim 225 recites an abstract idea.
Under Step 2A, Prong 2, if it is determined that the claims recite a judicial exception, it is then necessary to evaluate whether the claims recite additional elements that integrate the judicial exception into a practical application of that exception. See MPEP §2106.04(d). In this case, representative claim 225 includes additional elements such as a non-transitory computer-readable medium including instructions that when executed by a processor cause the processor to perform a method in near-real time, a customer display device mounted to a physical shopping cart, a virtual shopping cart, a network, one or more image sensors, an image processing unit operatively connected to a database, one or more computer image analysis techniques selected from a list consisting of: object recognition, object detection, image segmentation, feature extraction, optical character recognition (OCR), object-based image analysis, shape region techniques, edge detection techniques, pixel-based detection, artificial neural networks, convolutional neural networks, and a mobile store associate display device different from the customer display device.
Although reciting additional elements, the additional elements do not integrate the abstract idea into a practical application because they merely amount to no more than an instruction to apply the abstract idea using a generic computer or merely use a computer as a tool to perform the abstract idea. These additional elements are described at a high level in Applicant’s specification without any meaningful detail about their structure or configuration. The claimed use of the image processing unit to perform the recited analysis does not improve the operation of the image processing unit, image sensors, or image analysis technology itself, but instead uses those technological elements to obtain and analyze information used in determining whether a store associate should be requested to assist in associating a product with a shopper. Similar to the limitations of Alice, representative claim 225 merely recites a commonplace business method (i.e., shopping for items by weight) being applied on a general purpose computer. See MPEP §§2106.04(d) and 2106.05(f). Thus, the claimed additional elements are merely generic elements and the implementation of the elements merely amounts to no more than an instruction to apply the abstract idea using a generic computer. Since the additional elements merely include instructions to implement the abstract idea on a generic computer or merely use a generic computer as a tool to perform an abstract idea, the abstract idea has not been integrated into a practical application. As such, representative claim 225 is directed to an abstract idea.
Under Step 2B, if it is determined that the claims recite a judicial exception that is not integrated into a practical application of that exception, it is then necessary to evaluate the additional elements individually and in combination to determine whether they provide an inventive concept (i.e., whether the additional elements amount to significantly more than the exception itself). See MPEP §2106.05.
In this case, as noted above, the additional elements recited in independent claim 225 are recited and described in a generic manner merely amount to no more than an instruction to apply the abstract idea using a generic computer or merely use a generic computer as a tool to perform an abstract idea.
Even when considered as an ordered combination, the additional elements of representative claim 225 merely provide the technological tools by which the recited abstract commercial process is carried out and do not provide an inventive concept beyond the judicial exception itself. In Alice, the court considered the additional elements “as an ordered combination,” and determined that “the computer components ... ‘ad[d] nothing ... that is not already present when the steps are considered separately’ and simply recite intermediated settlement as performed by a generic computer.” Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 573 U.S. 208, 224, 110 USPQ2d 1976, 1983-84 (2014). (citing Mayo, 566 U.S. at 79, 101 USPQ2d at 1972). Also see MPEP §2106.05(f). Similarly, when viewed as a whole, representative claim 225 simply conveys the abstract idea itself facilitated by generic computing components. Therefore, under Step 2B, there are no meaningful limitations in representative claim 225 that transforms the judicial exception into a patent eligible application such that the claims amount to significantly more than the judicial exception itself.
As such, representative claim 225 is ineligible.
Dependent claims 226-242 do not aid in the eligibility of independent claim 1. For example, claim 240 merely further define the abstract limitations of claim 1. Also, claims 226-239 and 241-242 merely provide further embellishments of the abstract limitations recited in independent claim 1.
Additionally, it is noted that claims 226-228 and 233-242 do not include further additional elements. Therefore, the claims do not integrate the abstract idea into a practical application because they merely amount to an instruction to apply the abstract idea using a generic computer or merely use a generic computer as a tool to perform an abstract idea. The claims also do not amount to significantly more than the abstract idea because they merely amount to an instruction to apply the abstract idea using a generic computer or merely use a generic computer as a tool to perform an abstract idea.
Furthermore, it is noted that claim 229 includes further additional elements of a service robot and one or more sensors associated with the service robot; claim 230 includes further additional elements of a computing device; claim 231 includes further additional elements of scanning of a barcode; and claim 232 includes further additional elements of interrogation of an RFID tag. However, these additional elements do not integrate the abstract idea into a practical application because they merely amount to an instruction to apply the abstract idea using a generic computer or merely use a generic computer as a tool to perform an abstract idea. These additional elements are merely generic elements and are likewise described in a generic manner in Applicant’s specification. Additionally, the additional elements do not amount to significantly more because they merely amount to an instruction to apply the abstract idea using a generic computer or merely use a generic computer as a tool to perform an abstract idea.
Thus, dependent claims 226-242 are also ineligible.
Lastly, the analysis above applies to all statutory categories of invention. Although literally invoking a method and system, respectively, claims 243 and 244 remain only broadly and generally defined, with the claimed functionality paralleling that of claim 225. It is noted that claim 244 includes further additional elements of a system comprising: a memory storing instructions; and at least one processor programmed to execute the stored instructions. However, these additional elements do not integrate the abstract idea into a practical application because they merely amount to an instruction to apply the abstract idea using a generic computer or merely use a generic computer as a tool to perform an abstract idea. These additional elements are merely generic elements and are likewise described in a generic manner in Applicant’s specification. Additionally, the additional elements do not amount to significantly more because they merely amount to an instruction to apply the abstract idea using a generic computer or merely use a generic computer as a tool to perform an abstract idea. As such, claims 243-244 are rejected for at least similar rationale as discussed above.
Subject Matter Free of Prior Art
13. The following is an examiner’s statement of reasons for indicating subject matter free of the prior art:
Claims 225, 243, and 244, and their respective dependent claims 226-242 are free of the prior art due to the combination of features.
The most relevant prior art includes Deyle et al (US 20200061839, herein referred to as Deyle), Enatsu et. al. (US 20210326828 A1, herein referred to as Enatsu), Hurewitz et. al. (US 20140365334 A1, herein referred to as Hurewitz), Glaser et. al. (US 10339595 B2, herein referred to as Glaser ‘595), Kraus et. al. (US 20170221130 A1, herein referred to as Kraus), and Krishnaiah (US 20170116589 A1, herein referred to as Krishnaiah).
Deyle discloses a robot operating in a retail environment, cameras/sensors capturing images, image processing of retail inventory, determining information about products from those images, network communications, a human operator, notifying or flagging something for human intervention and receiving instructions back from the human operator.
Enatsu discloses a pay-by-weight method and system for that analyzes images to determine products for a pay-by-weight purchase. The system and method can automatically add a pay-by-weight product to a virtual shopping cart based on identifying the product and the store employee confirming the addition to the user’s shopping list. Enatsu does not disclose calculating an ambiguity threshold based on a pending task list of a store associate and sending a notification to a store employee when the ambiguity threshold is met.
Hurewitz discloses a method and system for analyzing images to determine interactions customers have with products. Hurewitz does not disclose a pay-by-weight product, calculating an ambiguity threshold based on a pending task list of a store associate, nor sending a notification to a store employee when the ambiguity threshold is met.
Kraus discloses a method and system for tracking items in a shopping cart using a device mounted to a physical shopping cart. Kraus does not disclose a pay-by-weight item, calculating an ambiguity threshold based on a pending task list of a store associate, nor sending a notification to a store employee when the ambiguity threshold is met.
Glaser ‘595 discloses calculating a confidence level for items, and if a threshold is met, a store employee can confirm which product is in the images. Glaser does not disclose a pay-by-weight item, nor sending a notification to a store employee when the ambiguity threshold is met.
Krishnaiah discloses that a notification can be sent to a store employee if they are available or added to a queue until an employee is available to help the customer. Krishnaiah does not disclose a pay-by-weight item, nor calculating an ambiguity and determining whether an ambiguity threshold is met.
Although individually the references teach the individual claimed features, none of the cited references anticipate or render obvious the combination of features. While these references arguably may teach the claimed limitations using a piecemeal analysis, these references would only be combined and deemed obvious based on knowledge gleaned from the applicant's disclosure. Such a reconstruction is improper (i.e., hindsight reasoning). See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971). Accordingly, claim 228 taken as a whole, is indicated to be allowable over the cited prior art. The Examiner emphasizes that it is the interrelationship of limitations that renders this claim allowable over the prior art/additional art as the evidence at hand does not anticipate the claims and does not render obvious any further modification of the references to a person of ordinary skill in art.
Conclusion
14. 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.
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/JESSICA LEMIEUX/Supervisory Patent Examiner, Art Unit 3626
