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 filed 11/21/2025 have been received and reviewed. The status of the claims is as follows:
Claims 1, 3-10, 12-20 are pending.
Claims 19-20 were previously withdrawn from consideration.
Claims 1, 3-10, 12-18 are rejected herein.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
1. Claims 5, 6, 10, 14, 15, 17 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claims 5, 6, 10, 14, 15, 17 recite the limitation "the entity". There is insufficient antecedent basis for this limitation in the claim.
For purposes of examination, and in line with the present amendments, the claims will be interpreted as if “the entity” read “the user”.
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.
2. Claims 1, 3-10, 12-18 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more.
Claims 1, 3-10, 12-18 are directed to recommending a product, 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 1, 3-9 recite a method and at least one step. Claims 10, 12-18 recite a system comprising a memory. Therefore, the claims are each directed to one of the four statutory categories of invention (process, apparatus).
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 independent claim 10, the claim sets forth a process in which product recommendations are determined for a consumer, including through the facilitation of consumer-to-business interaction, in the following limitations:
utilize a nodal model to determine a weighted likelihood that the user may purchase a second item based on the entity selecting the first item;
analyze the technological environment presented by the user…and determining from the signals at least one communication protocol available to provide the user with a recommendation;
employ the weighted likelihood and the at least one available communication protocol to select from the at least one communication protocol a most efficient format for providing the recommendation to the user to purchase the second item;
encode the recommendation within a message in the at least one format, which was selected; and
The above-recited limitations establish a commercial interaction with a consumer to make a product recommendation and between a consumer and business to aid in the determination of the recommendation. 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 10 does recite additional elements:
a memory;
positioning a plurality of devices at the point-of sale system to identify the
technological environment presented by a user of the point-of-sale system; and
at least one module stored in the memory and configured to:
receive input indicating that a user has selected a first item for purchase;
through using at least one transceiver to detect signals from at least one user device
transmit the message to the user.
These additional elements merely amount to the general application of the abstract idea to a technological environment (“a memory”, “positioning a plurality of devices to…”, “at least one module stored in the memory…”, “through using at elast one transceiver to detect…”) and insignificant pre-and-post solution activity (receiving, transmitting). The specification makes clear the general-purpose nature of the technological environment. Paragraphs [0030] - [0037] 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.
Independent Claim 1 is parallel in scope to claim 10 and ineligible for similar reasons.
Regarding Claims 2-4, 11-13
Claim 2-4 and 11-13 set forth:
wherein the input is received from a customer facing checkout system.
wherein the point-of-sale system is an on-site checkout kiosk.
wherein the input is received over a network from a user device.
These additional limitations are similar to the additional limitations in claims 1 and 10, as they do no more than generally link the use of the abstract idea to a particular technological environment. As such, they not integrate the abstract idea into a practical application, and does not provide an inventive concept. Accordingly, the claims do not confer eligibility on the claimed invention and is ineligible for similar reasons to claims 1 and 10.
Regarding Claims 5, 14
Claims 5, 14 set forth:
wherein the nodal model comprises: a plurality of nodes, wherein a first node represents the first item, and a second node comprises the second item; and a plurality of edges connecting the plurality of nodes, wherein a first edge comprises the likelihood the user would purchase the second item given selection of the first item and a second edge comprises the likelihood the user would purchase the first item given selection of the second item.
Such recitations merely embellish the abstract idea of determining products to recommend to a consumer. Accordingly, the claims do not confer eligibility on the claimed invention and is ineligible for similar reasons to claims 1 and 10.
Regarding Claims 6, 15
Claims 6, 15 set forth:
wherein employing comprises determining the format based on the user being likely to accept the recommendation and a type of device that the user has for receiving the recommendation.
Such recitations merely embellish the abstract idea of determining products to recommend to a consumer. Accordingly, the claims do not confer eligibility on the claimed invention and is ineligible for similar reasons to claims 1 and 10.
Regarding Claims 7, 16
Claim 7 and 16 set forth:
wherein encoding comprises embedding a link within the message that allows access to a system for fulfillment of a purchase corresponding to the recommendation.
These additional limitations are similar to the additional limitations in claims 1 and 10, as they do no more than generally link the use of the abstract idea to a particular technological environment. As such, they not integrate the abstract idea into a practical application, and does not provide an inventive concept. Accordingly, the claims do not confer eligibility on the claimed invention and is ineligible for similar reasons to claims 1 and 10.
Regarding Claims 8-9, 17-18
Claim 8-9 and 17-18 set forth:
an output device
wherein the message is sent to the user through the output device.
wherein the message is sent over a network to a device of the user.
.
These additional limitations are similar to the additional limitations in claims 1 and 10, as they do no more than generally link the use of the abstract idea to a particular technological environment. As such, they not integrate the abstract idea into a practical application, and does not provide an inventive concept. Accordingly, the claims do not confer eligibility on the claimed invention and is ineligible for similar reasons to claims 1 and 10.
Claim Rejections - 35 USC § 103
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 (i.e., changing from AIA to pre-AIA ) 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.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
3. Claim(s) 1, 4, 6, 7, 9-10, 13, 15, 16, 18 are rejected under 35 U.S.C. 103 as being unpatentable over Das Gupta (US 12211081 B1, hereinafter Gupta) in view of Dhawan et al. (US 20220256433 A1, hereinafter Dhawan) and Lee et al. (US 20170017951 A1, hereinafter Lee)
Regarding Claim 1
Gupta discloses a method, comprising:
receiving input indicating that a user has selected a first item (Gupta: col. 1, line 32-65; col. 7, line 32 - col. 8, line 32)
utilizing a nodal model to determine a weighted likelihood that the user may have interest in a second item based on the user selecting the first item; (Gupta: col. 1, line 32-65; col. 7, line 32 - col. 8, line 32; claim 1)
employing the weighted likelihood to select a format for providing a recommendation to the user for purchase of the second item (Gupta: see at least claim 1)
encoding the recommendation within a message in the format, which was selected; (Gupta: see at least col. 9: lines 42-65; claim 1)
transmitting the message to the user (Gupta: see at least col. 9: lines 42-65; claim 1)
Gupta does not explicitly disclose:
providing a point-of-sale system;
positioning a plurality of devices at the point-of sale system to identify the technological environment presented by a user of the point-of-sale system;
analyzing the technological environment presented by the user through using at least one transceiver to detect signals from at least one user device and determining from the signals at least one communication protocol available to provide the user with a recommendation;
employing at least one available communication protocol to select from the at least one communication protocol a most efficient format for providing the recommendation;
Dhawan teaches that it is known to positioning a plurality of devices to identify the technological environment presented by a user (see at least ¶39, 40, 45: sensors positioned in environment to determine technological context of customer) and employing at least one available communication protocol to select from the at least one communication protocol a most efficient format for providing the recommendation (see at least abstract, ¶18) in a similar environment. It would have been obvious to one of ordinary skill in the art at the time of filing to have modified the invention of Gupta with features taught by Dhawan, since such a modification would have provided an improved quality of communication between customers and agents. (Dhawan: see at least ¶4)
Lee teaches that it is known to include providing a point-of-sale system (see at least ¶52) and analyzing the technological environment presented by the user through using at least one transceiver to detect signals from at least one user device and determining from the signals at least one communication protocol available to provide the user with a recommendation (see at least ¶52) in a similar environment. It would have been obvious to one of ordinary skill in the art at the time of filing to have modified the invention of Gupta with features taught by Lee, since such a modification would have enabled merchant-specific features, such as merchant-specific offers, rewards, loyalty information, and other incentives that are applicable to the identified merchant (Lee: see at least ¶7)
Regarding Claim 10
Claim 10 is substantially similar in scope to claim 1 and is rejected on similar grounds.
Regarding Claims 4, 13
Gupta further discloses:
wherein the input is received over a network from a user device (Gupta: col. 1: line 32-65: online shopping cart)
Regarding Claims 6, 15
Gupta discloses:
wherein employing comprises determining the format based on the user being likely to accept the recommendation Gupta: col. 1, line 32-65; col. 7, line 32 - col. 8, line 32; claim 1)
Gupta does not explicitly disclose, but Lee teaches in a similar environment:
wherein employing comprises determining a type of device that the user has for receiving the recommendation. (Lee: see at least ¶52)
It would have been obvious to one of ordinary skill in the art at the time of filing to have modified the invention of Gupta with features taught by Lee, since such a modification would have enabled merchant-specific features, such as merchant-specific offers, rewards, loyalty information, and other incentives that are applicable to the identified merchant (Lee: see at least ¶7)
Regarding Claims 7, 16
Gupta further discloses:
wherein encoding comprises embedding a link within the message that allows access to a system for fulfillment of a purchase corresponding to the recommendation (Gupta: fig. 7; col. 9: 66 – co. 10: 19)
Regarding Claims 9, 18
Gupta further discloses:
wherein transmitting comprises sending the message over a network to a user device of the user (Gupta: fig. 7; col. 9: 66 – col. 10: 19)
4. Claim(s) 3, 8, 12, 17 are rejected under 35 U.S.C. 103 as being unpatentable over Gupta in view of Dhawan and Lee as applied above, and further in view of Tendulkar et al. (US 20230074782 A1, hereinafter Tendulkar).
Gupta in view of Dhawan and Lee does not explicitly disclose, but Tendulkar teaches, in a similar environment:
wherein the point-of-sale system is an on-site checkout kiosk (see at least ¶22)
wherein transmitting comprises sending the message to the user through an output device at the point-of-sale system (see at least ¶22)
It would have been obvious to one of ordinary skill in the art at the time of filing to have modified Gupta in view of Dhawan and Lee with the provision of product recommendations via an on-site checkout kiosk, as taught by Tendulkar, since such a modification would have provided a personalized, ranked recommendation of retail products to a customer (Tendulkar: see at least ¶21).
5. Claim(s) 5, 14 are rejected under 35 U.S.C. 103 as being unpatentable over Gupta in view of Dhawan and Lee as applied above, and further in view of Al-rfou’ et al. (US 11455512, hereinafter Al-rfou).
Regarding Claims 5, 14
Gupta in view of Dhawan and Lee discloses wherein the nodal model comprises:
a plurality of nodes, wherein a first node represents the first item, and a second node comprises the second node (Gupta: col. 7: 32 – col. 8: 32; claim 1); and
a plurality of edges connecting the plurality of nodes, wherein a first edge comprises the likelihood the user would purchase the second item given selection of the first item (Gupta: col. 7: 32 – col. 8: 32; claim 1)
Gupta in view of Dhawan and Lee does not explicitly disclose:
a second edge comprises the likelihood the user would purchase the first item given selection of the second item.
Al-rfou teaches that it is known to include such an edge structure (see at least col. 5: lines 5-19; col. 6: lines 24-47: asymmetric edges between product 1 and product 2 represent purchase likelihood can be different in each direction) in a similar environment. It would have been obvious to one of ordinary skill in the art at the time of filing to have modified the invention of Gupta in view of Dhawan and Lee with the edge structure of Al-rfou, since such a modification would have provided superior performance than conventional systems by generalizing beyond training data sets more readily than conventional systems (Al-rfou: col. 3: lines 43-64).
Response to Arguments
Applicant’s arguments with respect to the 35 USC 101 rejection have been fully considered, but they are not persuasive. Applicant argues:
The Applicant respectfully submits that the claims, as amended, provide an inventive concept. The technological environment presented by the user is analyzed through the use of at least one transceiver to detect signals from at least one user device. The signals are used to determine the available communication protocols available to provide the user with a recommendation. The recommendation is then sent sent to the user in the most efficient format. This solves the problem associated with conventional recommendations systems in that conventional systems are not efficient because users are bombarded with recommendations in manners and formats that are not optimal for the user. Such rote advertising is overcome by assessing available communication protocols and providing the user with a recommendation using an optimal communication format derived from identifying and analyzing the communication environment presented by the user to the system. For the claims recite significantly more than an abstract idea. Accordingly, the Applicant respectfully requests the withdrawal of the 35 U.S.C § 101 rejections.
The Examiner respectfully disagrees. While the amended claims do set forth a more specific technological operating environment, the claimed environment merely generally applies the abstract idea to a known technological environment. Such a general application does not amount to significantly more. Additionally, while applicant asserts the claims set forth a solution to an existing problem “that conventional systems are not efficient because users are bombarded with recommendations in manners and formats that are not optimal for the user”, the Examiner asserts that such a problem is a commercial problem, and not a technical one. The Examiner is aware of no judicial precedent for providing the solution to a commercial problem rendering an otherwise ineligible claim eligible. Accordingly, the claims are held to be ineligible, and the rejection is maintained.
Applicant’s arguments with respect to the prior art rejections have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
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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/MICHAEL MISIASZEK/Primary Examiner, Art Unit 3688