DETAILED ACTION
Status of Claims
• The following is an office action in response to the communication filed 12/04/2025.
• Claims 1 and 11 have been amended.
• Claim 10 has been canceled.
• Claims 1-9 and 11 are currently pending and have been examined.
Information Disclosure Statement
Information Disclosure Statement received 07/16/2025 has been reviewed and considered.
Priority
The applicant’s claim for benefit of Provisional Patent Application Serial No. 63/227,922 filed 07/30/2021 has been received and acknowledged.
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 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 1-9 and 11 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. The 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.
First, it is determined whether the claims are directed to a statutory category of invention. See MPEP 2106.03(II). In the instant case, claims 1-9 and 11 are directed to a process. Therefore, claims 1-9 and 11 are directed to statutory subject matter under Step 1 of the Alice/Mayo test (Step 1: YES).
The claims are then analyzed to determine if the claims are directed to a judicial exception. See MPEP 2106.04. In determining whether the claims are directed to a judicial exception, the claims are analyzed to evaluate whether the claims recite a judicial exception (Prong 1 of Step 2A), as well as analyzed to evaluate whether the claims recite additional elements that integrate the judicial exception into a practical application of the judicial exception (Prong 2 of Step 2A). See MPEP 2106.04.
Taking claim 1 as representative, claim 1 recites at least the following limitations that are believed to recite an abstract idea:
receiving a selection of a specified number of fragrances from a plurality of fragrances displayed;
prompting a consumer to experience a first fragrance of the specified number of fragrances through directions displayed;
scanning the consumer’s facial expressions to perform emotion sensing measuring how scent receptors of the consumer’s brain react to fragrance notes and ingredients while the consumer experiences the first fragrance and collecting consumer emotion results;
providing a custom profile based on the consumer emotion results to the consumer after experiencing the first fragrance, the custom profile including how high of a match the first fragrance is for the consumer, percentages of each emotion felt by the consumer when using the first fragrance, and a graphical depiction of where the emotions fall on a scent category wheel;
repeating the prompting and providing steps for each of the specified number of fragrances;
using subjective human data and objective OR data fragrance fingerprint associated with the consumer emotion results to evaluate fragrances;
processing fragrances identified to learn olfactory receptors activated in the brain by each of the fragrance, learn emotional patterns of the consumer when experiencing each fragrance, connect the emotion patterns to activated olfactory receptors, and providing data about the processed fragrances; and
combining the FER detections for each of the specified number of fragrances and recommending a fragrance that is right for the consumer based on emotion compatibility and olfactive family from the subjective human data and objective OR data fragrance fingerprint a unique profile of fragrance matches and recommendations for the consumer.
The above limitations recite the concept of observing a consumer’s facial expression while the consumer is experiencing a fragrance; providing a custom profile to the consumer that includes how high of a match the fragrance is for the consumer; and delivering a fragrance recommendation for the consumer. These limitations, under their broadest reasonable interpretation, fall within the “Certain Methods of Organizing Human Activity” grouping of abstract ideas, enumerated in the MPEP, in that they recite commercial or legal interactions such as advertising, marketing, or sales activities or behaviors. Specifically, the claims are related to sales activities and behaviors because recommending a fragrance to a consumer is a sales activity and relates to marketing. This is further illustrated in the Specification, paragraph [0022], describing that the fragrances are for purchase. Additionally, the claims fall within the “Mental Processes” grouping of abstract ideas, enumerated in the MPEP, in that they recite concepts performed in the human mind, such as observations, evaluations, judgments, and opinions. Specifically, observing a consumer’s facial expression while the consumer is experiencing a fragrance and then determining a fragrance match for the consumer is a process that can be performed in the human mind. They are similar to the concept of collecting information, analyzing it, and displaying certain results of the collection and analysis. Independent claim 11 recites similar limitations as claim 1, and additionally recites the abstract idea of delivering a unique profile based on the combined detections that recommends a fragrance that is right for the consumer based on emotion compatibility and olfactive family; and suggesting additional fragrances to the consumer, the additional fragrances identified based on a match with activated olfactory receptors in the recommended fragrance. As such, independent claim 11 falls within the same identified grouping of abstract ideas as claim 1. Accordingly, under Prong One of Step 2A of the MPEP, claims 1 and 11 recite an abstract idea (Step 2A, Prong One: YES).
Under Prong Two of Step 2A of the MPEP, claims 1 and 11 recite additional elements, such as an interactive device, facial emotion recognition (FER), scanning the consumer's facial expressions, emotion sensing facial recognition, a graphical depiction, a scent finder application programming interface (API), a pre-process API FER, one or more fragrance databases, and process[ing] through machine learning (ML) models. These additional elements are described at a high level in Applicant’s specification without any meaningful detail about their structure or configuration. As such, these computer-related limitations are not found to be sufficient to integrate the abstract idea into a practical application. Although these additional computer-related elements are recited, claims 1 and 11 merely invoke such additional elements as a tool to perform the abstract idea. Implementing an abstract idea on a generic computer is not indicative of integration into a practical application. Similar to the limitations of Alice, claims 1 and 11 merely recite a commonplace business method (i.e., observing a consumer’s facial expression while the consumer is experiencing a fragrance; providing a custom profile to the consumer that includes how high of a match the fragrance is for the consumer; and delivering a fragrance recommendation for the consumer) being applied on a general purpose computer. See MPEP 2106.05(f). Furthermore, claims 1 and 11 generally link the use of the abstract idea to a particular technological environment or field of use. The courts have identified various examples of limitations as merely indicating a field of use/technological environment in which to apply the abstract idea, such as specifying that the abstract idea of monitoring audit log data relates to transactions or activities that are executed in a computer environment, because this requirement merely limits the claims to the computer field, i.e., to execution on a generic computer (see FairWarning v. Iatric Sys.). Likewise, claims 1 and 11 specifying that the abstract idea of observing a consumer’s facial expression while the consumer is experiencing a fragrance; providing a custom profile to the consumer that includes how high of a match the fragrance is for the consumer; and delivering a fragrance recommendation for the consumer is executed in a computer environment merely indicates a field of use in which to apply the abstract idea because this requirement merely limits the claims to the computer field, i.e., to execution on a generic computer. As such, under Prong Two of Step 2A of the MPEP, when considered both individually and as a whole, the limitations of claims 1 and 11 are not indicative of integration into a practical application (Step 2A, Prong Two: NO).
Since claims 1 and 11 recite an abstract idea and fail to integrate the abstract idea into a practical application, claims 1 and 11 are “directed to” an abstract idea (Step 2A: YES).
Next, under Step 2B, the claims are analyzed to determine if there are additional claim limitations that individually, or as an ordered combination, ensure that the claim amounts to significantly more than the abstract idea. See MPEP 2106.05. The instant claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception for at least the following reasons.
Returning to independent claims 1 and 11, these claims recite additional elements, such as an interactive device, facial emotion recognition (FER), scanning the consumer's facial expressions, emotion sensing facial recognition, a graphical depiction, a scent finder application programming interface (API), a pre-process API FER, one or more fragrance databases, and process[ing] through machine learning (ML) models. As discussed above with respect to Prong Two of Step 2A, although additional computer-related elements are recited, the claim merely invokes such additional elements as a tool to perform the abstract idea. See MPEP 2106.05(f). Moreover, the limitations of claims 1 and 11 are manual processes, e.g., receiving information, analyzing information, sending information, etc. The courts have indicated that mere automation of manual processes is not sufficient to show an improvement in computer-functionality (see MPEP 2106.05(a)(I)). Furthermore, as discussed above with respect to Prong Two of Step 2A, claims 1 and 11 merely recite the additional elements in order to further define the field of use of the abstract idea, therein attempting to generally link the use of the abstract idea to a particular technological environment, such as the Internet or computing networks (see Ultramercial, Inc. v. Hulu, LLC. (Fed. Cir. 2014); Bilski v. Kappos (2010); MPEP 2106.05(h)). Similar to FairWarning v. Iatric Sys., claims 1 and 11 specifying that the abstract idea of observing a consumer’s facial expression while the consumer is experiencing a fragrance; providing a custom profile to the consumer that includes how high of a match the fragrance is for the consumer; and delivering a fragrance recommendation for the consumer is executed in a computer environment merely indicates a field of use in which to apply the abstract idea because this requirement merely limits the claim to the computer field, i.e., to execution on a generic computer.
Even when considered as an ordered combination, the additional elements do not add anything that is not already present when they are considered individually. In Alice Corp., the Court considered the additional elements “as an ordered combination,” and determined that “the computer components…‘[a]dd nothing…that is not already present when the steps are considered separately’ and simply recite intermediated settlement as performed by a generic computer.” Id. (citing Mayo, 566 U.S. at 79, 101 USPQ2d at 1972). Similarly, viewed as a whole, claims 1 and 11 simply convey the abstract idea itself facilitated by generic computing components. Therefore, under Step 2B of the Alice/Mayo test, there are no meaningful limitations in claims 1 and 11 that transform the judicial exception into a patent eligible application such that the claim amounts to significantly more than the judicial exception itself (Step 2B: NO).
Dependent claims 2-9, when analyzed as a whole, are held to be patent ineligible under 35 U.S.C. 101 because they recite an abstract idea, are not integrated into a practical application, and do not add “significantly more” to the abstract idea. More specifically, dependent claims 2-9 further fall within the “Certain Methods of Organizing Human Activity” grouping of abstract ideas, enumerated in the MPEP, in that they further recite commercial or legal interactions such as advertising, marketing, or sales activities or behaviors. Dependent claims 2-9 additionally fall within the “Mental Processes” grouping of abstract ideas, enumerated in the MPEP, in that they recite concepts performed in the human mind, such as observations, evaluations, judgments, and opinions. Dependent claims 3-9 fail to identify additional elements and as such, are not indicative of integration into a practical application. Dependent claim 2 further identifies the additional element of a native IOS application. Similar to discussion above the with respect to Prong Two of Step 2A, although additional computer-related elements are recited, the claims merely invoke such additional elements as a tool to perform the abstract idea. See MPEP 2106.05(f). As such, under Step 2A, dependent claims 2-9 are “directed to” an abstract idea. Similar to the discussion above with respect to claims 1 and 11, dependent claims 2-9 analyzed individually and as an ordered combination, invoke such additional elements as a tool to perform the abstract idea and merely indicate a field of use in which to apply the abstract idea because this requirement merely limits the claims to the computer field, i.e., to execution on a generic computer, and therefore, do not amount to significantly more than the abstract idea itself. See MPEP 2106.05(f)(2). Accordingly, under the Alice/Mayo test, claims 1-9 and 11 are ineligible.
Allowable Subject Matter Over the Prior Art
Claims 1-9 and 11 would be allowable if rewritten or amended to overcome the rejections under 35 U.S.C. 101, set forth in this Office action.
Independent claims 1 and 11 incorporate substantially the same allowable subject matter of claims 9 and 10 and are therefore indicated as containing allowable subject matter for the same reasons as discussed in the Office action dated 07/16/2024. For further discussion, see the Office action dated 07/16/2024.
Claims 2-9 depend from claim 1 and therefore the dependent claims are also indicated as containing allowable subject matter.
Response to Arguments
Applicant’s arguments, filed 12/04/2025, have been fully considered.
35 U.S.C. § 101
Applicant argues the claims are eligible because the claims “improve[] the technical field of digitizing fragrances and connecting emotion to activated OR receptors” (Remarks page 6). The examiner disagrees. The MPEP provides guidance on how to evaluate whether claims recite an improvement in the functioning of a computer or an improvement to other technology or technical field. For example, the MPEP states “the specification should be evaluated to determine if the disclosure provides sufficient details such that one of ordinary skill in the art would recognize the claimed invention as providing an improvement.” The MPEP further states that “[t]he specification need not explicitly set forth the improvement, but it must describe the invention such that the improvement would be apparent to one of ordinary skill in the art,” and that, “conversely, if the specification explicitly sets forth an improvement but in a conclusory manner…the examiner should not determine the claim improves technology” (see MPEP 2106.04). That is, the claim includes the components or steps of the invention that provide the improvement described in the specification. Looking to the specification is a standard that the courts have employed when analyzing claims as it relates to improvements in technology. For example, in Enfish, the specification provided teaching that the claimed invention achieves benefits over conventional databases, such as increased flexibility, faster search times, and smaller memory requirements. Enfish LLC v. Microsoft Corp., 822 F.3d 1327, 1335-36 (Fed. Cir. 2016). Additionally, in Core Wireless the specification noted deficiencies in prior art interfaces relating to efficient functioning of the computer. Core Wireless Licensing v. LG Elecs. Inc., 880 F.3d 1356 (Fed Cir. 2018). With respect to McRO, the claimed improvement, as confirmed by the originally filed specification, was “…allowing computers to produce ‘accurate and realistic lip synchronization and facial expressions in animated characters…’” and it was “…the incorporation of the claimed rules, not the use of the computer, that “improved [the] existing technological process” by allowing the automation of further tasks”. McRO, Inc. v. Bandai Namco Games America Inc., 837 F.3d 1299, (Fed. Cir. 2016).
While the examiner acknowledges that improvements to the functioning of a computer or to any other technology or technical field may constitute integration into a practical application (see MPEP 2106.05(a)), the instant claims do not provide a technical improvement. Rather, the claims provide an improvement to the abstract idea of observing a consumer’s facial expression while the consumer is experiencing a fragrance; providing a custom profile to the consumer that includes how high of a match the fragrance is for the consumer; and delivering a fragrance recommendation for the consumer. This is illustrated in specification paragraph [0004] which discusses that the invention relates to providing more accurate fragrance recommendations.
Although the claims include computer technology such as an interactive device, facial emotion recognition (FER), scanning the consumer's facial expressions, emotion sensing facial recognition, a graphical depiction, a scent finder application programming interface (API), a pre-process API FER, one or more fragrance databases, and process[ing] through machine learning (ML) models, such elements are merely peripherally incorporated in order to implement the abstract idea. Put another way, these additional elements are merely used to apply the abstract idea of providing fragrance recommendations in a technological environment without effectuating any improvement or change to the functioning of the additional elements or other technology. This is unlike the improvements recognized by the courts in cases such as Enfish, Core Wireless, and McRO. Unlike precedential cases, neither the specification nor the claims of the instant invention identify such a specific improvement to computer capabilities. The instant claims are not directed to technological improvements but are directed to improving the business method of providing fragrance recommendations. The claimed process, while arguably resulting in a more accurate process for providing fragrance recommendations, is not providing any improvement to another technology or technical field as the claimed process is not, for example, improving the server and/or computer components that operate the system. Rather, the claimed process is utilizing data sets related to humans and fragrances while still employing the same server and/or computer components used in conventional systems to improve fragrance recommendations, e.g. a business method, and therefore is merely applying the abstract idea using generic computing components. As such, the claims are not integrated into practical application.
With respect to Applicant’s arguments that the claims provide a technical solution similar to Examples 49 and 46 and Ex parte Desjardins (remarks pages 6-8), the examiner disagrees. The subject matter eligibility examples are hypothetical and only intended to be illustrative of the claim analysis under the MPEP. These examples are to be interpreted based on the fact patterns set forth in each example, as other fact patterns may have different eligibility outcomes. Example 49 relates to genotyping a sample from a glaucoma patient in order to provide eye drops and Example 46 pertains to monitoring health and activity in dairy livestock. Thus, examples 49 and 46 are dissimilar to the invention. Furthermore, Ex parte Desjardins pertained to an improvement to how the machine learning model operated. By contrast, the instant invention merely recites a generic machine learning model at a high level with no details regarding an improvement to machine learning technology. Accordingly, there is no evidence, short of attorney argument, that a technological improvement is provided.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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 ANNA MAE MITROS whose telephone number is (571)272-3969. The examiner can normally be reached Monday-Friday from 9:30-6.
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, Marissa Thein can be reached at 571-272-6764. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ANNA MAE MITROS/Examiner, Art Unit 3689
/MARISSA THEIN/Supervisory Patent Examiner, Art Unit 3689