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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 02/06/2026 has been entered. Claims 1-9, 14, 20, 26 and 28-29 are cancelled. Claims 10, 15, 21 and 27 are amended. Claims 10-13, 15-19, 21-25 and 27 are currently pending in the application.
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 10-13, 15-19, 21-25 and 27 are rejected under 35 U.S.C. 101 because the claimed invention is directed to abstract idea without significantly more.
In regard to independent Claim 16, analyzed as representative claim:
Step 1: Statutory Category?
The preamble of independent Claim 16 recites “An assist method”. Independent Claim 16 falls within the “process” category of 35 U.S.C. § 101.
Step 2A – Prong 1: Judicial Exception Recited?
The Revised 2019 Memorandum is applied as shown in the Independent Claim 16/Revised 2019 Guidance Table below to identify in italics the specific claim limitations found to recite an abstract idea and in bold the additional (non-abstract) claim limitations.
Independent Claim 16
Revised 2019 Guidance
An assist method executable by an assist system comprising at least one processor, the method including:
A method falls under the statutory subject matter class of a process. See
35 U.S.C. § 101 (“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.”).
The assist system comprising at least one processor is a generic computer component.
[L1a] obtain coordinates of a target user's viewpoint on a screen displaying target content at a time interval based on target user's eye movement and
The screen is a generic computer component.
Obtaining data… is insignificant extra-solution activity (i.e., data gathering). See 2019 Memorandum, 84 Fed. Reg. at 55 n.31; see also MPEP § 2106.05(g).
[L1b] generate target data indicating a target user viewpoint movement on the screen the target user's eye movement captured by a camera;
The screen and camera are generic computer components.
Generat[ing] target data… on the screen is insignificant extra-solution activity (i.e., data presentation). See 2019 Memorandum, 84 Fed. Reg. at 55 n.31; see also MPEP § 2106.05(g).
[L2a] referring to a storage unit storing correlation data and assist information, the correlation data indicating a correlation between a user viewpoint movement and a user understanding level for content, the assist information corresponding to the user understanding level for the content,
Referring to data is analyzing data which is an abstract idea, mental process (including an observation, evaluation, judgment, opinion). See 2019 Memorandum 52.
The storage unit is a generic computer component.
[L2b] wherein the correlation data is obtained through statistical processing of a plurality of sets of sample data,
Obtaining the correlation data through statistical processing of a plurality of sets of sample data is extra-solution data processing.
Alternatively, obtaining data through statistical processing of data is an abstract idea, mental process (including an observation, evaluation, judgment, opinion). See 2019 Memorandum 52.
[L3] estimating a target user understanding level for the target content based on the target data and the correlation data; and
Estimating data is an abstract idea, method of organizing human activity— i.e., managing personal behavior or relationships or interactions between people (including social activities, teaching, and following rules or instructions and mental process (including an observation, evaluation, judgment, opinion). See 2019 Memorandum 52.
[L4] outputting the assist information corresponding to the target user understanding level estimated.
Outputting information is insignificant extra-solution activity (i.e., data presentation). See 2019 Memorandum, 84 Fed. Reg. at 55 n.31; see also MPEP § 2106.05(g).
[L5] wherein the correlation data includes: generalized correlation data obtained by performing the statistical processing on a plurality of sets of first sample data including the sample data obtained from the sample users having visually recognized the sample content different from the target content;
Obtaining the correlation data by performing the statistical processing on a plurality of sets of first sample data is extra-solution activity (i.e., data gathering). See 2019 Memorandum, 84 Fed. Reg. at 55 n.31; see also MPEP § 2106.05(g).
[L6] and content-specific correlation data obtained by performing the statistical processing on a plurality of sets of second sample data obtained from a plurality of sample users having visually recognized the target content as sample content;
Obtaining the correlation data by performing the statistical processing on a plurality of sets of first sample data is extra-solution activity (i.e., data gathering). See 2019 Memorandum, 84 Fed. Reg. at 55 n.31; see also MPEP § 2106.05(g).
[L7] and the at least one processor is configured to: estimate a first understanding level of the target user for the target content based on the target data and the generalized correlation data;
Estimating data is an abstract idea, method of organizing human activity— i.e., managing personal behavior or relationships or interactions between people (including social activities, teaching, and following rules or instructions and mental process (including an observation, evaluation, judgment, opinion). See 2019 Memorandum 52.
The at least one processor is a generic computer component.
[L8] output the assist information corresponding to the estimated first understanding level of the target user;
Outputting information is insignificant extra-solution activity (i.e., data presentation). See 2019 Memorandum, 84 Fed. Reg. at 55 n.31; see also MPEP § 2106.05(g).
[L9] estimate a second understanding level of the target user for the target content based on the target data and the content-specific correlation data;
Estimating data is an abstract idea, method of organizing human activity— i.e., managing personal behavior or relationships or interactions between people (including social activities, teaching, and following rules or instructions and mental process (including an observation, evaluation, judgment, opinion). See 2019 Memorandum 52.
[L10] and output the assist information corresponding to the estimated second understanding level of the target user.
Outputting information is insignificant extra-solution activity (i.e., data presentation). See 2019 Memorandum, 84 Fed. Reg. at 55 n.31; see also MPEP § 2106.05(g).
The published Specification discloses “[A] technique for assisting a user who visually recognizes content is known …” (¶ 2), and “[A] method that can appropriately assist users in viewing content is desired” (¶ 9). It is common practice for an educator monitoring student activity, for example by looking over the worksheet of a student, to determine that the student is struggling with a particular task/content and subsequently provide the student with assistance corresponding to the particular task/content. Humans have also long correlated data through statistical analysis, and have also long estimated which information to provide based on associated circumstances. Based at least on the above, it is apparent that, other than reciting the additional non-abstract limitations of the at least one processor, screen, camera, and storage unit noted in the Independent Claim 16/Revised 2019 Guidance Table above, nothing in the claim precludes the steps from practically being performed by a human, in the mind, and/or using pen and paper. The mere nominal recitation of the at least one processor, screen, camera, and storage unit does not take the claim out of the method of organizing human activity and mental processes groupings. Accordingly, the claim recites an abstract idea under Step 2A: Prong 1.
Step 2A – Prong 2: Integrated into a Practical Application?
The body of the claim, as noted in bold in the Independent Claim 16/Revised 2019 Guidance Table above, recites the additional limitations of the at least one processor, screen, camera, and storage unit which are recited at a high level of generality. The published Specification provides supporting exemplary descriptions of generic computer components: at least ¶ 35: … the assist system 1 includes a server 10. The server 10 is connected to and in communication with a user terminal 20 and a database 30 via a communication network N. The configuration of the communication network N is not limited. For example, the communication network N may include the Internet or an intranet; ¶ 36: The server 10 is a computer that distributes content to the user terminal 20 and provides assist information to the user terminal 20 as needed. The server 10 may be configured by one or more computers; ¶ 37: The user terminal 20 is a computer used by a user … The type of the user terminal 20 is not limited, and may be, for example, a mobile terminal such as a high-function mobile phone (smartphone), a tablet terminal, a wearable terminal (e.g., a head-mounted display (HMD), smart glasses, or the like), a laptop personal computer, or a mobile phone. Alternatively, the user terminal 20 may be a stationary terminal such as a desktop personal computer; ¶ 38: The database 30 is a non-transitory storage device that stores data used by the assist system 1. In the present embodiment, the database 30 stores content data, sample data, correlation data, and assist information. The database 30 may be a single database or a collection of multiple databases; ¶ 40: the server computer 100 includes a processor 101, a main storage 102, an auxiliary storage 103, and a communication unit 104 as hardware components; ¶ 41: The processor 101 is a computing device that executes an operating system and application programs. Examples of the processor include a central processing unit (CPU) and a graphics processing unit (GPU). However, the type of the processor 101 is not limited to these; ¶ 42: The main storage 102 is a device that stores a program for achieving the server 10, computation results output from the processor 101, and the like. The main storage 102 is configured by, for example, at least one of a read-only memory (ROM) or random access memory (RAM); ¶ 43: The auxiliary storage 103 is generally a device capable of storing a larger amount of data than the main storage 102. The auxiliary storage 103 is configured by a non-volatile storage medium such as a hard disk or a flash memory. The auxiliary storage 103 stores a server program P1 that causes the server computer 100 to function as the server 10 and stores various types of data. In the present embodiment, the assist program is implemented as a server program P); ¶ 44: The communication unit 104 is a device that executes data communication with another computer via the communication network N. The communication unit 104 is configured by, for example, a network card or a wireless communication module; ¶ 46: The server 10 may be configured by one or more computers. In a case of using a plurality of computers, the computers are connected to each other via the communication network N, thereby logically configuring single server 10; ¶ 47: In one example, the terminal computer 200 includes, as hardware components, a processor 201, a main storage 202, an auxiliary storage 203, a communication unit 204, an input interface 205, an output interface 206, and an imaging unit 207; ¶ 48: The processor 201 is a computing device that executes an operating system and application programs. The processor 201 may be, for example, a CPU or a GPU, but the type of the processor 201 is not limited to these; ¶ 49: The main storage 202 is a device that stores a program for achieving the user terminal 20, computation results output from the processor 201, and the like. The main storage 202 is configured by, for example, at least one of ROM or RAM; ¶ 50: The auxiliary storage 203 is generally a device capable of storing a larger amount of data than the main storage 202. The auxiliary storage 203 is configured by a non-volatile storage medium such as a hard disk or a flash memory. The auxiliary storage 203 stores a client program P2 for causing the terminal computer 200 to function as the user terminal 20, and various data; ¶ 52: … For example, the input interface 205 is configured by at least one of a keyboard, an operation button, a pointing device, a touch panel, a microphone, a sensor, or a camera; ¶ 53: … The output interface 206 is a device that outputs data processed by the terminal computer 200. For example, the output interface 206 is configured by at least one of a monitor, a touch panel, an HMD, or a speaker; ¶ 54: … The imaging unit 207 is a device that captures an image of the real world, and is a camera, specifically. The imaging unit 207 may capture a moving image (video) or a still image (photograph). The imaging unit 207 can also function as the input interface 205; ¶ 57: … The server 10 includes a content distributor 11, a statistical processor 12, an estimation unit 13, and an assist unit 14 as functional elements. The statistical processor 12 is a functional element that generates correlation data. The statistical processor 12 generates correlation data by performing statistical processing on the sample data stored in the database 30, and stores the correlation data in the database 30 …; ¶ 61: … a statistical processor 12 of a server 10 performs statistical processing on a plurality of sets of sample data to generate correlation data; ¶ 63: … The statistical processor 12 reads a plurality of sets of sample data from the database and performs statistical processing on the plurality of sets of sample data to generate correlation data. The method of the statistical processing by the statistical processor 12 and how the correlation data generated is expressed is not limited; ¶ 73: … The setting unit 21 sets the area coordinates of the guidance area using any given method; ¶¶ 99, 102: … The display controller 25 of the user terminal 20B outputs assist information to the screen of the user terminal 20B. The lack of details about the at least one processor, screen, camera, and storage unit indicates that the above-mentioned additional elements are generic, or part of generic computer elements performing or being used in performing the generic functions claimed. The claim does not change the way in which each of the recited at least one processor, screen, camera, and storage unit performs its tasks, the claim simply uses each component for its ordinary purpose to carry out the abstract idea of providing assist information corresponding to estimated understanding level of a target user. See Intellectual Ventures I LLC v. Erie Indem. Co., 850 F.3d 1315, 1331 (Fed. Cir. 2017) (“The claimed mobile interface is so lacking in implementation details that it amounts to merely a generic component (software, hardware, or firmware) that permits the performance of the abstract idea, i.e., to retrieve the user-specific resources.”), Alice, 573 U.S. at 225 (using a computer-implemented system “to obtain data, adjust account balances, and issue automated instructions” did not result in claim being non-abstract), Univ. of Fla. Rsch. Found., Inc. v. Gen. Elec. Co., 916 F.3d 1363, 1368 (Fed. Cir. 2019) (claims “directed to the abstract idea of ‘collecting, analyzing, manipulating, and displaying data’”), FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1093–94 (Fed. Cir. 2016) (determining “that the ‘realm of abstract ideas’ includes ‘collecting information, including when limited to particular content’” as well as analyzing and presenting information), Cyberfone Sys., LLC v. CNN Interactive Grp., Inc., 558 F. App’x 988, 992 (Fed. Cir. 2014) (claims directed to organizing, storing, and transmitting information determined to be directed to an abstract idea). The claim does not recite (i) an improvement to the functionality of a computer or other technology or technical field (see MPEP § 2106.05(a)); (ii) a “particular machine” to apply or use the judicial exception (see MPEP § 2106.05(b)); (iii) a particular transformation of an article to a different thing or state (see MPEP § 2106.05(c)); or (iv) any other meaningful limitation (see MPEP § 2106.05(e)). See 84 Fed. Reg. at 55. The claimed invention merely implements the abstract idea using instructions executed on generic computer components, as shown in bold above, and as supported in the above noted pertinent portions of the originally filed Specification. The instant claim merely uses a programmed computer as a tool to perform an abstract idea. See MPEP § 2106.05(f). The additional limitations noted above in the Independent Claim 16/Revised 2019 Guidance Table, [L1a] “obtain[ing] coordinates …” (i.e., data gathering), [L1b] “generat[ing] target data …on the screen” (i.e., data presentation), [L4] “output[ting] the assist information” (i.e., data presentation), [L5] “generalized correlation data obtained by performing … statistical processing” (i.e., data gathering), [L8] “output[ting] the assist information” (i.e., data presentation), and [L10] (“output[ting] the assist information” (i.e., data presentation) reflect the type of extra-solution activity (i.e., activities in addition to the judicial exception) the courts have determined insufficient to transform judicially excepted subject matter into a patent-eligible application when they are claimed in a merely generic manner. See MPEP § 2106.05(g); see, e.g., CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1370 (Fed. Cir. 2011) (“We have held that mere ‘[data-gathering] step[s] cannot make an otherwise nonstatutory claim statutory.”’ (alterations in original) (quoting In re Grams, 888 F.2d 835, 840 (Fed. Cir. 1989))); see buySafe, Inc. v. Google, Inc., 765 F.3d 1350 (Fed. Cir. 2014) (stating “That a computer receives and sends information over a network — with no further specification — is not even arguably inventive”); see also BSG Tech LLC v. BuySeasons, Inc., 899 F.3d 1281, 1288 (Fed. Cir. 2018) (“[A]n improvement to the information stored by a database is not equivalent to an improvement in the database’s functionality.”); further see Versata Dev. Grp., Inc. v. SAP Am., Inc., 793 F.3d 1306, 1335 (Fed. Cir. 2015) (“Courts have examined claims that required the use of a computer and still found that the underlying, patent-ineligible invention could be performed via pen and paper or in a person’s mind.”).).
The instant claim as a whole merely uses computer instructions to implement the abstract idea on a computer or, alternatively, merely uses a computer as a tool to perform the abstract idea. The claim limitations amount to merely indicating a field of use or technological environment (a computer) in which to apply a judicial exception and, as such, cannot integrate the judicial exception into a practical application. See MPEP § 2106.05(h). Hence, as per MPEP §§ 2106.05(a)–(c), (e)–(h), the additional elements in claim 16, namely the at least one processor, screen, camera, and storage unit do not, either individually or in combination, integrate the abstract idea into a practical application. Because the abstract idea is not integrated into a practical application, the claim is directed to the judicial exception. (Step 2A, Prong 2: NO).
Step 2B: Claim provides an Inventive Concept?
As discussed with respect to Step 2A Prong Two, the additional element(s) in the claim amount to no more than mere instructions to apply the exception using generic computer components. The same analysis applies here in Step 2B, i.e., mere instructions to apply an exception using generic computer components cannot integrate a judicial exception into a practical application at Step 2A or provide an inventive concept in Step 2B.
Because the published Specification, as noted above (¶¶ 35, 36, 37, 38, 40, 41, 42, 43, 44, 46, 47, 48, 49, 50, 52, 53, 54, 57, 61, 63, 73, 99, 102) describes the at least one processor, screen, camera, and storage unit in general terms, without describing the particulars, the recited claim element(s) and functions may be broadly but reasonably construed as reciting conventional computer component(s) and technique(s), particularly in light of the published Specification sufficiently well-known that the specification does not need to describe the particulars of such additional element(s) to satisfy 35 U.S.C. § 112(a). See MPEP 2106.05(d), as modified by the USPTO Berkheimer Memorandum. Furthermore, the Berkheimer Memorandum, Section III (A)(1) explains that a specification that describes additional elements “in a manner that indicates that the additional elements are sufficiently well-known that the specification does not need to describe the particulars of such additional elements to satisfy 35 U.S.C. § 112(a)” can show that the elements are well understood, routine, and conventional); Intellectual Ventures I LLC v. Erie Indem. Co., 850 F.3d 1315, 1331 (Fed. Cir. 2017) (“The claimed mobile interface is so lacking in implementation details that it amounts to merely a generic component (software, hardware, or firmware) that permits the performance of the abstract idea, i.e., to retrieve the user-specific resources.”; Content Extraction and Transmission LLC v. Wells Fargo Bank, Nat’l Ass’n, 776 F.3d 1343, 1347–48 (Fed. Cir. 2014) (claims to extracting data from documents, recognizing information in the extracted data, and storing recognized data provided data collection, recognition, and storage that humans always have performed and doing so with conventional, generic computer technology did not provide an inventive concept).
Hence, the additional element(s) is/are generic, well-known, and conventional computing element(s). The use of the additional element(s) either alone or in combination amounts to no more than mere instructions to apply the judicial exception using generic computer components. Mere instructions to apply an exception using generic computer components cannot provide an inventive concept. Therefore, the judicially excepted subject matter cannot be transformed into a patent-eligible application, and thus the claims are patent ineligible. (Step 2B: NO).
In regard to independent Claim 10:
Independent claim 10 is an assist system, comprising at least one processor, the at least one processor configured to: preform steps comparable to those of representative claim 16, performed by elements comparable to those of representative claim 16. Accordingly, independent claim 10 is rejected similarly to representative claim 16.
In regard to independent Claim 22:
Independent claim 22 is a non-transitory computer-readable medium storing a program that, when executed, causes a computer to execute the assist method of claim 16. Accordingly, independent claim 22 is rejected similarly to representative claim 16.
In regard to independent Claim 28:
Independent claim 28 is an assist system, comprising at least one processor, the at least one processor configured to: preform steps comparable to those of representative claim 16, performed by elements comparable to those of representative claim 16. Accordingly, independent claim 28 is rejected similarly to representative claim 16.
In regard to the dependent claims:
Dependent claims 11-13, 15, 17-18, 21, 23-25 and 27 include all the limitations of respective independent claims 10, 16, and 22 from which they depend and, as such, recite the same abstract idea(s) noted above for respective claims 10, 16, and 22. Any additional claim element is recited as being used according to its conventional purpose in a conventional manner. The Examiner fails to see any claim activity used in some unconventional manner nor does any produce some unexpected result. An invocation to use known technology in the manner it is intended to be used for its ordinary purpose is both generic and conventional. As per MPEP §§ 2106.05(a)–(c), (e)–(h), none of the limitations of claims 11-13, 15, 17-18, 21, 23-25 and 27 integrates the judicial exception into a practical application. While dependent claims 11-13, 15, 17-18, 21, 23-25 and 27 may have a narrower scope than the representative claims, no claim contains an “inventive concept” that transforms the corresponding claim into a patent-eligible application of the otherwise ineligible abstract idea(s). Therefore, dependent claims 11-13, 15, 17-18, 21, 23-25 and 27 are not drawn to patent eligible subject matter as they are directed to (an) abstract idea(s) without significantly more.
Response to Arguments
35 U.S.C. § 112(b) Rejections
The previous rejections under 35 U.S.C. § 112(b) are withdrawn in view of Applicant’s amendment.
35 U.S.C. § 101 Rejections
Referring to the “wherein the correlation data includes” limitations, Applicant first argues that “It is clear that claim 16 recites not merely "obtaining" or "estimating" data, but rather the creation and use of a specifically structured correlation dataset generated through statistical processing of multiple sets of sample data having different semantic relationships to the target content. This certainly is not simple 'data gathering' (page 5, ibid.) or 'managing personal behavior or relationships or interactions between people' (page 6, ibid.)” and that “the Examiner has simplified the above claim limitations to merely "obtaining data" and "estimating data" and has omitted each and every detail clearly recited by representative claim 16. While the Examiner refers to the 2019 Memorandum and the MPEP, neither of them stipulates or supports such reduction of the detailed claim limitations to a broader sense in determining Step 2A, Prong One and Prong Two”, that “[T]his dataset is not generic data, but rather a defined data structure that is generated through statistical processing and is expressly configured for use by the processor in estimating a target user's understanding level”, that “By using this specifically structured correlation dataset, the processor operates in a
technically different manner than a conventional processor that merely gathers or analyzes unstructured data … enabling the estimation to be performed with reduced processing power and increased processing speed”, that “[T]he claimed operations cannot be practically performed in the human mind or by using a pen”, that “all of the claim limitations are interconnected and, when considered as a whole, contribute to and achieve improvements to the functionality of a computer” and that “characterizing these limitations at a high level as mere "obtaining data," "estimating data," or "statistical processing" disconnects the analysis from the claimed data structure and processor interaction that give rise to the identified technical improvements”. Applicant’s arguments have been fully considered but they are not persuasive.
Applicant’s remarks do not identify any persuasive support for the above assertions, such as in the Specification. For example, the instant Specification does not provide any reference to performing steps “with reduced processing power and increased processing speed”. Appellant's contentions are unsubstantiated by any persuasive evidence on this record and, therefore, are mere lawyer argument and conclusory statements that are entitled to little probative value. See In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); see also Enzo Biochem, Inc. v. Gen Probe, Inc., 424 F.3d 1276, 1284 (Fed. Cir. 2005) ("Attorney argument is no substitute for evidence."). As shown above, the fact that the claimed invention provides for automating the process of providing assist information corresponding to estimated understanding level of a target user is a result of the capabilities of the generic computer components—not the recited process itself. See FairWarning IP, LLC v. Iatric Systems, Inc., 839 F.3d 1089, 1095 (Fed. Cir. 2016) (citing Bancorp Services, LLC v. Sun Life Assurance Co., 687 F.3d 1266, 1278 (Fed. Cir. 2012) (“[T]he fact that the required calculations could be performed more efficiently via a computer does not materially alter the patent eligibility of the claimed subject matter.”)); see also Intellectual Ventures I LLC v. Erie Indemnity Co., 711 F. App’x 1012, 1017 (Fed. Cir. 2017) (“Though the claims purport to accelerate the process of finding errant files and to reduce error, we have held that speed and accuracy increases stemming from the ordinary capabilities of a general-purpose computer do not materially alter the patent eligibility of the claimed subject matter.”). Like the claims in FairWarning, the focus of claim 1 is not on an improvement in computer processors as tools, but on certain independently abstract ideas that use generic computing components as tools. See FairWarning, 839 F.3d at 1095. The following is nonetheless provided to further address Applicant’s remarks.
Applicant’s “improvements to the functionality of a computer or other technology or technical field” assertion appears to essentially rely on “specifically structured and interrelated dataset”. By definition1:
Data are observations or measurements (unprocessed or processed) represented as text, numbers, or multimedia.
A dataset is a structured collection of data generally associated with a unique body of work.
A database is an organized collection of data stored as multiple datasets. Those datasets are generally stored and accessed electronically from a computer system that allows the data to be easily accessed, manipulated, and updated.
As per the instant published Specification, “correlation data is generated for each set of content. This correlation data is hereinafter referred to as “content-specific correlation data”.” While the “plurality of sets of sample data” implies a dataset, there is no explicit claim recitation of multiple datasets to suggest a database. Representative claim 16 fails to recite “a specific type of data structure designed to improve the way a computer stores and retrieves data in memory” as in Enfish, 822 F.3d at 1339.
The Examiner finds no indication in the Specification, nor does Applicant provide any indication therein, that the operations recited in independent representative claim 16 require any specialized computer hardware or software or that the claimed invention is implemented using other than generic computer components to perform generic computer functions. To the contrary, the Specification describes the additional elements generically throughout (¶¶ 35, 36, 37, 38, 40, 41, 42, 43, 44, 46, 47, 48, 49, 50, 52, 53, 54, 57, 61, 63, 73, 99, 102), indicating that the statistical processor 12 generates correlation data by performing statistical processing on the sample data stored in the database 30, and stores the correlation data in the database 30 (¶¶ 38, 57, 61), the database 30 is a non-transitory storage device that stores data used by the assist system 1, the database 30 stores content data, sample data, correlation data, and assist information, that the content [is] displayed on the screen of the user terminal 20 (¶ 58), that [T]he imaging unit 207 is a device that captures an image of the real world, and is a camera (¶ 54), … the user terminal 20 may include an infrared emitting device and an infrared camera as a hardware configuration (¶¶ 38, 42, 52, 54), and that the storage unit is a non-transitory storage device that stores data used by the assist system (¶¶ 38, 42). There can be no dispute that the computer elements recited are not of a particular machine, but rather generic computer elements performing generic computer functions. Representative claim 16 is not focused on a specific means or method to improve the claimed computer elements but merely recites utilizing the recited computer elements to perform the claim steps. There is no indication in the instant published Specification that any of the claimed activities is used in some non-generic, unconventional manner nor does that any produces some unexpected result. See In re Gopalan, 809 F. App’x 942, 943-44, 946 (Fed. Cir. 2020) (the placement of sensors to allow spectrally based measurement in nucleic acid sequencing and high spatial density spectral measurements of fluorescence signals using scanners and cameras lacked specificity regarding the placement and design of the sensors and lacked “‘the specificity required to transform a claim from one claiming only a result to one claiming a way of achieving it.”’) (citation omitted); TDE Petroleum Data Solutions, Inc. v. AKM Enterprise, Inc., 657 F. App’x 991, 992–93 (Fed. Cir. 2016) (claim to determining well operation states by receiving mechanical and hydraulic sensor data from plural systems, determining if some data is valid compared to a limit/threshold, and selecting a well operation state by data gathering and processing is directed to an abstract idea); Automated Tracking Sols., 723 F. App’x at 992 94 (locating and tracking objects using radio frequency signals from transponders in a coverage area by collecting data from sensors, analyzing that data, and determining results based on the data analysis without any particular configuration of RFID system components is an abstract idea). Additionally, in Yu v. Apple Inc., 1 F.4th 1040 (Fed. Cir. 2021) the court held ineligible a claimed digital camera with two image sensors, two lenses, A/D converting circuitry, image memory, and a digital image processor. See id. at 1041–45. The court noted that not only did the claim merely recite conventional camera components to effectuate the resulting enhanced image, these conventional components performed only their basic functions. See id. at 1043. That is the case here given the added limitation of a camera capturing the target user's eye movement at a high level of generality.
Applicant additionally argues that the rejections determination of “[S]uch abstraction of the processor's estimation and output operations ignores that these limitations define a specific machine workflow that applies the claimed
correlation dataset to produce the technical improvements discussed above”, that “the
Examiner has reduced the detailed claim limitations of "the plurality of sets of first sample data including the sample data obtained from the sample users having visually recognized the sample content different from the target content" and "a plurality of sets of second sample data obtained from a plurality of sample users having visually recognized the target content as sample content", on which the processor performs statistical processing, to mere "data", effectively giving no weight to the explicit data structure and functional distinctions”, that “If such approach were permitted, any claim limitations specifically reciting particular data structures and processing operations performed on such dataset could be dismissed at a high level of abstraction”, that “the Examiner relies on alleged human performance to support an abstract-idea
characterization, the absence of evidence supporting such characterization further
underscores the analytical deficiency”, that “[A]s such, the Examiner's analysis gives no meaningful weight to the expressly recited data structure and functional distinctions that are central to the claims”, that “[T]his amendment clarifies that the target data used for estimating the target user's first and second understating levels, in combination with the generalized correlation data and the content-specific correlation data, is generated from the target user's actual eye movement captured by a camera while the target user views the target content on the screen” and that “[T]his further reinforces that the claimed estimation is grounded in machine-generated input data and applied through the claimed correlation dataset, rather than a mental or human activity, and constitutes a concrete technical or technological implementation”. Applicant’s arguments have been fully considered but they are not persuasive.
As noted earlier, Applicant’s remarks do not identify any persuasive support for the above assertions, such as in the Specification. Appellant's contentions are unsubstantiated by any persuasive evidence on this record and, therefore, are mere lawyer argument and conclusory statements that are entitled to little probative value. See In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); see also Enzo Biochem, Inc. v. Gen Probe, Inc., 424 F.3d 1276, 1284 (Fed. Cir. 2005) ("Attorney argument is no substitute for evidence."). Nonetheless, the following is provided to further address Applicant’s remarks.
Applicant fails to indicate and the Examiner fails to see how “the claim limitations define a specific machine workflow that applies the claimed correlation dataset to produce the technical improvements” and the asserted “particular manner in which statistical processing is applied to the claimed structured correlation dataset within a computer system”. As noted earlier, it is common practice for an educator monitoring student activity, for example by looking over the worksheet of a student, to determine that the student is struggling with a particular task/content and subsequently provide the student with assistance corresponding to the particular task/content. Humans have also long correlated data through statistical analysis, and have also long estimated which information to provide based on associated circumstances. It is also important to note, addressing Applicant’s “level of abstraction” remarks, that “an abstract idea can generally be described at different levels of abstraction.” Apple, Inc. v. Ameranth, Inc., 842 F.3d 1229, 1240 (Fed. Cir. 2016). The level of abstraction an examiner uses to describe an abstract idea need not “impact the patentability analysis.” Apple, 842 F.3d at 1241. That is true here. Regardless of the level of generality used to describe the abstract idea recited, the claims are directed to an abstract idea. Cf. Accenture Glob. Servs., GmbH v. Guidewire Software, Inc., 728 F.3d 1336, 1344–45 (Fed. Cir. 2013) (“Although not as broad as the district court’s abstract idea of organizing data, it is nonetheless an abstract concept.”). Additionally,
Furthermore, Applicant is respectfully reminded that the abstract idea alone cannot integrate itself into a practical application and “[t]he abstract idea itself cannot supply the inventive concept.” Trading Techs. Int’l, Inc. v. IBG LLC, 921 F.3d 1378, 1385 (Fed. Cir. 2019); see also Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d 1138, 1151 (Fed. Cir. 2016) (“[A] claim for a new abstract idea is still an abstract idea.”). As shown earlier, the instant Specification supports a finding that the recited computer elements (e.g., at least one processor, screen, camera, and storage unit), are not utilized differently than employed by ordinarily skilled artisans and, as such, are not of a particular machine, but rather generic computer elements performing generic computer functions. The claims are not necessarily rooted in computer technology in order to solve a specific problem in the realm of computing, but rather directed to the abstract idea of providing assist information corresponding to estimated understanding level of a target user.
Applicant is additionally reminded that automating a mental process does not confer patent eligibility. PersonalWeb Techs. LLC v. Google LLC, 8 F.4th 1310, 1319 (Fed. Cir. 2021) (“[M]erely adding computer functionality to increase the speed or efficiency of the process does not confer patent eligibility on an otherwise abstract idea.”); “the mere recitation of a generic computer cannot transform a patent ineligible abstract idea into a patent-eligible invention.” Alice, 573 U.S. at 223. The additional claim limitations (e.g., at least one processor, screen, camera, and storage unit), individually or in combination, do not provide an improvement in the functioning of a computer, other technology, or technical field or otherwise demonstrate the claims are directed to patent-eligible subject matter.
In light of the foregoing, the Examiner maintains that each of Applicant’s pending claims 10-13, 15-19, 21-25 and 27 considered as a whole, is directed to a patent-ineligible abstract idea that is not integrated into a practical application, and does not include an inventive concept.
Conclusion
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/EDDY SAINT-VIL/Primary Examiner, Art Unit 3715
1 https://www.bing.com/ck/a?!&&p=e5c468ea413ab4061eeab72b55eb434bb9dfdf10ca0c66dc38ac74964b945ed8JmltdHM9MTc3NTAwMTYwMA&ptn=3&ver=2&hsh=4&fclid=2881774c-1d79-6a6f-3066-606a1cd86bd5&psq=data+vs+dataset+vs+database&u=a1aHR0cHM6Ly93d3cudXNncy5nb3YvZmFxcy93aGF0LWFyZS1kaWZmZXJlbmNlcy1iZXR3ZWVuLWRhdGEtYS1kYXRhc2V0LWFuZC1hLWRhdGFiYXNl