DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Notice for all US Patent Applications filed on or after March 16, 2013
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
Status of the Claims
This communication is in response to communications received on 3/23/26. Claim(s) 1, 4, 10, 15, and 19 has/have been amended, claim(s) none is/are cancelled, claim(s) none is/are new, and applicant states support can be found at instant specification [0029-0040]. Therefore, Claims 1, 3-10, 12-19, and 21-22 is/are pending and have been addressed below.
Response to Arguments
Applicant’s arguments, see applicant’s remarks, filed 3/23/26, with respect to rejections under 35 USC 101 for claim(s) 1, 3-10, 12-19, and 21-22 have been fully considered but they are not persuasive as far as they apply to the amended 101 rejection(s) below.
Applicant respectfully traversed the rejection on pg. 10-15.
The Examiner respectfully disagrees because while the amendment does further the101 discussions by further defining the testing method, the testing method could be done in the human mind sans the user interface. The last wherein limitation does further distinguish the user interfaces however it is still broad. The testing method is further defined via the first providing test, a second algorithm, second providing test, first wherein, third providing, and second wherein.
The claims here are not like those the Federal Circuit found patent eligible in Enfish because the claimed steps are a process that qualifies as an abstract idea for which computers are invoked merely as a tool, rather than being directed to a specific asserted improvement in computer capabilities.
The claims here are not like those the Federal Circuit (Court) found patent eligible in McRO because the patent claims here do not address problems unique to claimed rules that enable automation of specific animation tasks that previously could not be automated. Additionally, the McRO court discusses the absence of preemption in determining that the claimed invention was not "directed to" a judicial exception. Other decisions, however, do not consider the absence of preemption as conferring patent eligibility (e.g., Synopsys, Fair Warning, Intellectual Ventures v. Symantec, Sequenom, and OIP). Furthermore the test is not preemption but the two step alice test.
Regarding a) Desjardin and b) well-understood, routine, and conventional, while the claims do incorporate (as noted by the specification) unusual methods, there is still lack of an explanation on why the methods yield an improvement and/or why the specific approach is not a variation of current methods. Thus the improvements appears to be apply it.
Applicant is relying on 2106.05(d) “well understood, routine, and conventional” however Examiner is relying on 2106.05(f) “apply it.” Examiner relied on “apply it” because of item (2) Whether the claim invokes computers or other machinery merely as a tool to perform an existing process of 2106.05(f).
Thus, the argument(s) are unpersuasive.
Claims Without Prior Art Rejections
Closest prior art to the invention includes
Kulkarni et al. (US 2020/0342500 A1) for claim(s) 1, 3-10, 12-19, and 21-22.
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.
Claim(s) 1, 3-10, 12-19, and 21-22 is/are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter. The claim(s) does/do not fall within at least one of the four categories of patent eligible subject matter as noted below.
The limitation(s) below for representative claim(s) 1, 10, and 19 that, under its broadest reasonable interpretation, is directed to website experience testing.
Step 1: The claim(s) as drafted, is/are a process (claim(s) 1, 3-10, 12-19, and 21-22 recites a series of steps).
Step 2A – Prong 1: The claimed invention is directed to an abstract idea without significantly more. The claim(s) recite(s) (emphasis added):
Claim 1: generating at least two versions of the electronic user interface, each version of the electronic user interface comprising a respective set of parameters determined using a first algorithm;
defining a test period for testing the at least two or more versions of the electronic user interface;
receiving, from each of a plurality of first users during the test period, a respective request for the electronic user interface;
determining a respective version of the at least two versions of the electronic user interface to deliver to each of the plurality of first users over the test period based on applying the at least two versions to a second algorithm, wherein an output decision of the second algorithm is configured to maintain a user traffic split of the at least two versions of the electronic user interface provided to each of the plurality of first users at a certain split point during the defined test period by:
providing, during a first period of the defined test period, a minimum sample size of each of the at least two versions of the electronic user interface to one or more first users of the plurality of first users;
calculating, by the second algorithm during a second period of the defined test period after the first period, a first ratio of a total number of times each of the at least two versions of the electronic user interface has been provided to each of the plurality of first users;
calculating, by the second algorithm during the second period, a square root of a second ratio of cumulative rewards for each of the at least two versions of the electronic user interface based on feedback obtained from the plurality of first users, wherein the cumulative rewards for each of the at least two versions is calculated as a product of the cumulative reward of a version of the at least two versions and one-minus the cumulative reward of the version of the at least two versions;
comparing, by the second algorithm during the second period, the first ratio to the square root of the second ratio; and
providing, during the test period, the determined version of the at least two versions of the electronic user interface to the plurality of first users,
wherein which version of the at least two versions of the electronic user interface to deliver to each remaining first user of the plurality of first users during the second period is automatically determined based on the comparison so as to maintain user traffic split at the certain point that maximizes a test power and maintains a higher cumulative rewards during the test period relative to a uniform traffic split testing, and
providing, after the test period, the determined version of the at least two versions of the electronic user interface with the higher cumulative rewards to be displayed at a respective computing device of each of one or more second users in response to subsequent requests,
wherein the at least two versions of the electronic user interface include at least a first version having a first layout based on the algorithmically determined first set of parameters and a second version having a second layout based on the algorithmically determined second set of parameters that is different from the first layout.
Claim(s) 1 and 19: same analysis as claim 1.
Dependent claims 3-9, 12-18, and 21-22 recite the same or similar abstract idea(s) as independent claim(s) 1, 10, and 19 with merely a further narrowing of the abstract idea(s).
The identified limitations of the independent and dependent claims above fall well-within the groupings of subject matter identified by the courts as being abstract concepts of:
a method of organizing human activity (commercial or legal interactions including advertising, marketing or sales activities or behaviors, or business relations) because the invention is directed to economic and/or business relationships as they are associated with website experience testing, and
mental process (concepts performed in the human mind including an observation, evaluation, judgment, opinion) because the invention is directed to performing an evaluation (testing) of website experience (that could be done in the mind) to help companies determine the best website.
Step 2A – Prong 2: The claims are found to clearly be directed to the abstract idea identified above because the claims, as a whole, fail to integrate the claimed judicial exception into a practical application, specifically:
The additional elements encompassed by the abstract idea include user interface (claim(s) 1, 10, 19), user interface (claims(s) 4, 6-7, 9, 13, 15-16, 21).
The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the additional elements as described above with respect to Step 2A Prong 2 fails to describe:
Improvements to the functioning of a computer, or to any other technology or technical field - see MPEP 2106.05(a)
Applying or using a judicial exception to effect a particular treatment or prophylaxis for a disease or medical condition – see Vanda Memo
Applying the judicial exception with, or by use of, a particular machine – see MPEP 2106.05(b)
Effecting a transformation or reduction of a particular article to a different state or thing - see MPEP 2106.05(c)
Applying or using the judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment, such that the claim as a whole is more than a drafting effort designed to monopolize the exception - see MPEP 2106.05(e) and Vanda Memo.
Thus the additional elements as described above with respect to Step 2A Prong 2 are merely (as additionally noted by instant specification [0056-0058]) invoked as a tool and/or general purpose computer to apply instructions of an abstract idea in a particular technological environment, and/or mere application of an abstract idea in a particular technological environment and merely limiting the use of an abstract idea to a particular technological field do not integrate an abstract idea into a practical application (MPEP 2106.05(f)&(h)).
Step 2B: The claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception. Thus the additional elements as described above with respect to Step 2A Prong 2 are merely (as additionally noted by instant specification [0056-0058]) invoked as a tool and/or a general purpose computer to apply instructions of an abstract idea in a particular technological environment, and/or mere application of an abstract idea in a particular technological environment and merely limiting the use of an abstract idea to a particular technological field do not integrate an abstract idea into a practical application and thus similarly the combination and arrangement of the above identified additional elements when analyzed under Step 2B also fails to necessitate a conclusion that the claims amount to significantly more than the abstract idea for the same reasons as set forth above (MPEP 2106.05(f)&(h)).
Conclusion
When responding to the office action, any new claims and/or limitations should be accompanied by a reference as to where the new claims and/or limitations are supported in the original disclosure.
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 extension fee 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 date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JAMES WEBB whose telephone number is (313)446-6615. The examiner can normally be reached on M-F 10-3.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Jerry O’Connor can be reached on (571) 272-6787. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/J.W./Examiner, Art Unit 3624
/Jerry O'Connor/Supervisory Patent Examiner,Group Art Unit 3624
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