DETAILED ACTION
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 .
Prosecution Status
Applicant’s amendments dated 10/15/2025 have been received and reviewed. The status of the claims is as follows:
Claims 4-23 are pending.
Election/Restrictions
Newly submitted claims 16-23 are directed to an invention that is independent or distinct from the invention originally claimed for the following reasons:
Inventions in claims 4-15 and in claims 16-22 are directed to related inventions. The related inventions are distinct if: (1) the inventions as claimed are either not capable of use together or can have a materially different design, mode of operation, function, or effect; (2) the inventions do not overlap in scope, i.e., are mutually exclusive; and (3) the inventions as claimed are not obvious variants. See MPEP § 806.05(j). In the instant case, the inventions as claimed can have materially different function, such as the invention in claims 4-15 functioning to determine, based at least in part on third sensor data captured by the third sensor, that an item was located proximate to a location of the third sensor at a second time, wherein the third sensor data is associated with one or more item characteristics of the item, and wherein the second time is later than the first time; and the invention in claims 16-22 functioning to capture, by at least one of the plurality of cameras, first image data over at least a period of time; determine, based at least in part on the first image data, a plurality of locations of a user within the facility during at least a portion of the period of time; and identify the user based at least in part on at least some of the first image data. Furthermore, the inventions as claimed do not encompass overlapping subject matter and there is nothing of record to show them to be obvious variants.
Inventions in claims 4-15 and in claim 23 are directed to related inventions. The related inventions are distinct if: (1) the inventions as claimed are either not capable of use together or can have a materially different design, mode of operation, function, or effect; (2) the inventions do not overlap in scope, i.e., are mutually exclusive; and (3) the inventions as claimed are not obvious variants. See MPEP § 806.05(j). In the instant case, the inventions as claimed can have materially different functions, such as the invention in claims 4-15 functioning to determine, based at least in part on third sensor data captured by the third sensor, that an item was located proximate to a location of the third sensor at a second time, wherein the third sensor data is associated with one or more item characteristics of the item, and wherein the second time is later than the first time; and the invention in claim 23 functioning to calculate a probability that the user is associated with the item within the zone based at least in part on the first data and the second data; determine that the probability satisfies a predetermined threshold; in response to determining that the probability satisfies the predetermined threshold, associate an identifier of the item with an account of the user; and charge a payment instrument associated with the account of the user for at least a price of the item. Furthermore, the inventions as claimed do not encompass overlapping subject matter and there is nothing of record to show them to be obvious variants.
Inventions in claims 16-22 and in claim 23 are directed to related inventions. The related inventions are distinct if: (1) the inventions as claimed are either not capable of use together or can have a materially different design, mode of operation, function, or effect; (2) the inventions do not overlap in scope, i.e., are mutually exclusive; and (3) the inventions as claimed are not obvious variants. See MPEP § 806.05(j). In the instant case, the inventions as claimed can have materially different function, such as the invention in claims 16-22 functioning to capture, by at least one of the plurality of cameras, first image data over at least a period of time; determine, based at least in part on the first image data, a plurality of locations of a user within the facility during at least a portion of the period of time; and identify the user based at least in part on at least some of the first image data, and the invention in claim 23 functioning to calculate a probability that the user is associated with the item within the zone based at least in part on the first data and the second data; determine that the probability satisfies a predetermined threshold; in response to determining that the probability satisfies the predetermined threshold, associate an identifier of the item with an account of the user; and charge a payment instrument associated with the account of the user for at least a price of the item. Furthermore, the inventions as claimed do not encompass overlapping subject matter and there is nothing of record to show them to be obvious variants.
Since applicant has received an action on the merits for the originally presented invention, this invention has been constructively elected by original presentation for prosecution on the merits. Accordingly, claims 16-23 are withdrawn from consideration as being directed to a non-elected invention. See 37 CFR 1.142(b) and MPEP § 821.03.
To preserve a right to petition, the reply to this action must distinctly and specifically point out supposed errors in the restriction requirement. Otherwise, the election shall be treated as a final election without traverse. Traversal must be timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are subsequently added, applicant must indicate which of the subsequently added claims are readable upon the elected invention.
Should applicant traverse on the ground that the inventions are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing the inventions to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the inventions unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other invention.
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.
1. Claims 4-9, 11, 13-15 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
Claims 4-9, 11, 13-15 are directed to facilitating retail payment, which is considered a commercial interaction. Commercial interactions fall within a subject matter grouping of abstract ideas which the Courts have considered ineligible (Certain methods of organizing human activity). The claims do not integrate the abstract idea into a practical application, and do not include additional elements that provide an inventive concept (are sufficient to amount to significantly more than the abstract idea).
Under step 1 of the Alice/Mayo framework, it must be considered whether the claims are directed to one of the four statutory classes of invention. In the instant case, claim 4-15 recite a method and at least one step. Therefore, the claims are each directed to one of the four statutory categories of invention (process).
Under step 2A of the Alice/Mayo framework, it must be considered whether the claims are “directed to” an abstract idea. That is, whether the claims recite an abstract idea and fail to integrate the abstract idea into a practical application.
Regarding representative independent claim 4, the claim sets forth a process in payment for products in a retail environment is facilitated, including through the facilitation of consumer-to-business interaction, in the following limitations:
determining, based at least in part on first sensor data captured by at least a first sensor, that a first user was located at a first location within a facility at a first time
determining, based at least in part on second sensor data captured by a second sensor, that the first user entered a sensor zone, wherein the sensor zone comprises a first region within the facility associated with at least a third sensor;
determining, based at least in part on third sensor data captured by the third sensor, that an item was located proximate to a location of the third sensor at a second time, wherein the third sensor data is associated with one or more item characteristics of the item, and wherein the second time is later than the first time;
in response to determining at least that the item was located proximate to the location of the third sensor at the second time, associating an identifier associated with the item with an account of the first user;
determining, based at least in part on fourth sensor data captured by one of the first sensor, the second sensor or the third sensor, that that first user exited the facility; and
charging a payment instrument associated with the account of the user for at least a price of the item.
The above-recited limitations establish a commercial interaction with a consumer to determine products in the consumer’s possession and between a consumer and business to facilitate payment for the products. This arrangement amounts to both a sales activity or behavior; and business relations. Such concepts have been considered ineligible certain methods of organizing human activity by the Courts (See MPEP 2106.04(a)).
Claim 4 does recite additional elements:
in response to determining that the first user entered the sensor zone,
activating the third sensor based at least in part on the second sensor data;
These additional elements are recited at a high level of generality and merely amount to the general application of the abstract idea to a technological environment. The specification repeatedly makes clear the general-purpose nature of the technological environment (see at least ¶44, 55, 47, 50, 54, 115, 150-159). Paragraphs 185-187 indicate that while exemplary general-purpose systems may be specific for descriptive purposes, any elements or combinations of elements capable of implementing the claimed invention are acceptable. That is, the technology used to implement the invention is not specific or integral to the claim.
Therefore, considered both individually and as an ordered combination, the additional elements do no more than generally link the use of the abstract idea to a particular technological environment or field of use. That is, given the generality with which the additional limitations are recited, the limitations do not implement the abstract idea with, or use the abstract idea in conjunction with, a particular machine or manufacture that is integral to the claim. Additionally, the claims do not reflect an improvement in the functioning of a computer, or an improvement to other technology or technical field, do not effect a transformation or reduction of a particular article to a different state or thing; and do not apply or use the abstract idea in some other meaningful way beyond generally linking the use of the abstract idea to a particular technological environment, such that the claim as a whole is more than a drafting effort designed to monopolize the abstract idea. Accordingly, the Examiner concludes that the claim fails to integrate the abstract idea into a practical application, and is therefore “directed to” the abstract idea.
Under step 2B of the Alice/Mayo framework, it must finally be considered whether the claim includes any additional element or combination of elements that provide an inventive concept (i.e., whether the additional element or elements are sufficient to amount to significantly more than the abstract idea). In the instant case, the additional elements (recited above) simply append well-understood, routine, conventional activities previously known to the industry, specified at a high level of generality, to the judicial exception. Communicating information (i.e., receiving or transmitting data over a network) has been repeatedly considered well-understood, routine, and conventional activity by the Courts (See MPEP 2106.05(d)). Accordingly, the Examiner asserts that the additional elements, considered both individually, and as an ordered combination, do not provide an inventive concept, and the claim is ineligible for patent.
Regarding Claims 5-7, 9, 11, 14, 15
Dependent claims 5-7, 9, 11, 14, 15 merely set forth further embellishments to the abstract idea (i.e., they serve to further limit practically performable determining and associating functions), and therefore do not confer eligibility on the claimed invention and are ineligible for similar reasons to claims 4 and 16.
Regarding Claim 8
While the claim does set forth the additional limitation of “wherein the first sensor comprises one or more image sensors within the facility and wherein the third sensor comprises an RFID sensor activated based at least in part on the second sensor data”, this recitation is similar to the additional limitations in claim 4, as it does no more than generally link the use of the abstract idea to a particular technological environment. As such, it does not integrate the abstract idea into a practical application, and does not provide an inventive concept. Accordingly, the claim does not confer eligibility on the claimed invention and is ineligible for similar reasons to claim 4.
Regarding Claim 13
While claim 13 sets forth significant technological details, these details do not apply the abstract idea to a technological environment, as none of the sensors is actively used in the claimed process (other than the activation of the third sensor, which is addressed above. The specific limitation of the sensor environment merely further specifies the environment from which data was gathered at some point prior to the active determinations. Neither the determinations, nor the associating, nor the charging of a payment instrument are dependent upon the specific configuration of the sensors, rather, they are dependent on interpretation of sensor data (i.e., “based at least in part on”) previously gathered. Accordingly, claim 13 does not integrate the abstract idea into a practical application, and does not provide an inventive concept. Accordingly, the claim does not confer eligibility on the claimed invention and is ineligible for similar reasons to claim 4.
Response to Arguments
Applicant’s arguments with respect to the 35 USC 101 rejection have been fully considered, but they are not persuasive. As an initial matter, applicant’s arguments are generally directed towards claim 16, which has been withdrawn above as a result of significant amendments that render claim 16 (and its dependents) divergent in scope, and patentably distinguishable from claims 4-15. Applicant generally asserts that the claims usage of sensor data amounts to a practical application of the abstract idea. However, in claim 4, usage of disembodied sensor data in mentally-performable determinations does not amount to any application of the abstract idea to a technological environment, let alone a practical application. The Examiner emphasizes that no technological element is recited as performing any steps of the claimed method. While the claim does recite activation of a sensor, this recitation amounts to the general application of the abstract idea to a generic environment. No specific technological actor, mechanism, or technological process for activating the sensor is recited that transforms such a step into a practical application. Rather, such a step amounts to another step of human activity of turning on an element of a generic technological environment.
Applicant further asserts that amended claims 5-7, 9, 11, 13-15 have not received analysis under 101. However, each dependent claim has been analyzed, and the result of the analysis of claims 5-7, 9, 11, and 14-15 is the same: that each claim sets forth an embellishment to the abstract idea that merely serves to further limit practically performable determining and associating functions. Such embellishments to the abstract idea do not confer eligibility to the claimed invention. Regarding Claim 13, the Examiner directs applicant to the rejection above, which indicates why claim 13 does not render the claimed invention eligible.
Applicant’s arguments with respect to the prior art rejections have been considered, and are persuasive in light of the present amendments. Accordingly, the rejections have been withdrawn.
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 MICHAEL A MISIASZEK whose telephone number is (571)272-6961. The examiner can normally be reached Monday-Thursday. 8:00 AM - 5:30 PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Jeffrey Smith can be reached at 571272-6763. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MICHAEL MISIASZEK/Primary Examiner, Art Unit 3688