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 .
Change in Examiner
2. Katherine Barlow is no longer continuing prosecution on application number
17/814,554. It has been transferred to Examiner Jessica Lemieux.
DETAILED ACTION
3. This Non-Final Office action is in response to the application filed on July 25th, 2022 and in response to Applicant’s Arguments/Remarks filed on March 16th, 2026. Claims 225-244 are pending.
Priority
4. 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
5. 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
6. Applicant argues that amended claim 225 integrates any potential judicial exception into a practical application because it reflects improvements to the functioning of the computer itself, specifically related to the gesture recognition limitations. Examiner respectfully disagrees. The recited image processing unit merely analyzes additional images to detect a gesture and identify a shopper associated with a product. The claims do not improve gesture-recognition technology, image-processing technology, object-recognition techniques, image sensors, or computer functionality itself. Rather, the gesture information is used as an additional source of information for determining an association between a shopper and a pay-by-weight product so that a virtual shopping cart may be updated. Accordingly, the claimed gesture-recognition limitations merely use generic computer technology as a tool in carrying out the abstract idea and do not integrate the judicial exception into a practical application. Increasing productivity of a store and improving product placement are not computer- specific problems; rather, they are problems that exist in the business realm. The claims of the instant invention do not identify a specific improvement to the computer capabilities themselves, rather, the instant claims are directed to improving the commercial and mental task of tracking items for purchase by applying the abstract idea to a generic computing environment.
Examiner further disagrees that the claims solve a technological image-processing problem. The claims do not improve image quality, image acquisition, image analysis algorithms, gesture-recognition technology, or computer vision techniques. Rather, the claims obtain supplemental information from a store associate and use that information including a detected gesture, to resolve ambiguity regarding which shopper should be associated with a product. Resolving such ambiguity pertains to the underlying commercial transaction rather than an improvement in computer technology.
Further examiner notes that the notification and display limitations merely present information to a user and receive information from a user for use in the claimed determination process. Such limitations do not improve the operation of the display device, user interface technology, or computer system itself. Although Applicant characterizes the gesture-recognition limitations as a technical solution, the claims merely employ known image-analysis techniques to obtain information regarding which shopper should be associated with a product. The claims do not recite any improvement in the manner by which gestures are detected, images are processed, or computer vision operations are performed. Instead, the detected gesture is used in furtherance of the commercial objective of associating a product with a shopper and updating a virtual shopping cart.
Applicant argues that the claim recites a combination of features that are not well-understood, routine, conventional activity in the field because the combination of the steps operates in a non-conventional and non-generic way to update the user’s shopping cart with a pay-by-weight product. Even assuming the claimed association of a detected gesture with shopper identification was not previously known, novelty of the abstract idea does not provide an inventive concept. Rather, in step 2B, the rejection asserts that the additional elements, both individually and in combination, amount to no more than tools to perform the abstract idea.
Applicant argues that the claim is eligible due to the incorporation of the use of the gesture in combination with the shopper identification. Examiner disagrees. The recited use of a detected gesture in combination with shopper identification does not improve computer functionality, image processing technology, gesture-recognition technology, or computer vision operations. Rather the gesture serves as an additional source of information used to determine which shopper should be associated with a pay-by-weight product. As discussed above, the claims merely employ generic computing components to gather, analyze and present information in furtherance of the abstract commercial objective of associating products with shoppers and updating a virtual shopping cart. Accordingly, the incorporation of a detected gesture into the determination process does not integrate the judicial exception into a practical application. Considered individually and as an ordered combination, the additional elements merely use generic computing components as tools for implementing the abstract idea and do not amount to significantly more than the judicial exception itself.
Accordingly, Applicant’s arguments have been fully considered but are not persuasive. The amendments and arguments do not demonstrate that the claims improve computer technology or otherwise integrate the judicial exception into a practical application. The additional elements do not amount to significantly more than the abstract idea itself. Therefore, the rejection of claims 225-244 under 35 USC § 101 is maintained.
Applicant’s arguments, with respect to 35 USC § 103 have been fully considered and are persuasive in view of the claim amendment and applicant’s remarks. The 35 USC § 103 has been withdrawn.
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.
7. 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;
with a store associate different from the customer, providing a notification to the store associate 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 identify the product interactions and to associate the at least one pay-by-weight product involved with each product interaction with a particular shopper and 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 are sales activities. Thus, representative claim 225 recites an abstract idea.
The recited limitations of representative claim 225 also recite an abstract idea because they are considered to be mental processes. As described in the MPEP, mental processes are “concepts performed in the human mind (including an observation, evaluation, judgment, opinion)”. MPEP §2106.04(a)(2) subsection III. In this case, displaying contents of a shopping cart associated with a particular shopper of a plurality of shoppers; with a store associate different from the customer, providing a notification to the store associate 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; using 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 are types of judgment. Additionally, 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; and receiving the requested supplemental information from the store associate are types of observation. Furthermore, analyzing the one or more images to identify the product interactions and to associate the at least one pay-by-weight product involved with each product interaction with a particular shopper among the plurality of shoppers is a type of evaluation. 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. 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 do not add anything that is not already present when they considered individually. 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 241-244 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
8. 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 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).
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
9. Any inquiry concerning this communication or earlier communications from the examiner should be directed to JESSICA LEMIEUX whose telephone number is (571)270-3445. The examiner can normally be reached Monday-Friday 7AM-3PM.
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/JESSICA LEMIEUX/Supervisory Patent Examiner, Art Unit 3626
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