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 .
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-21 are rejected under 35 U.S.C. 101 because the claimed invention as a whole, considering all claim elements both individually and in combination, is directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more.
As summarized in MPEP § 2106, subject matter eligibility is determined based on a Two-Part Analysis for Judicial Exceptions. In Step 1, it must be determined whether the claimed invention is directed to a process, machine, manufacture or composition of matter. The instant application includes claims concerning a computer device (i.e., a machine) in claims 10-19, 21, and a method for generating (i.e., a process) in claims 1-9, 20.
In Prong 1 of Step 2A, it must be determined whether the claimed invention recites an Abstract Idea, Law of Nature or a Natural Phenomenon.
In particular exemplary presented claim 1 includes the following underlined claim elements:
1. A computer-implemented method for generating a biome within a virtual landscape of a video game, wherein the biome comprises at least two layers, wherein the method comprises:
executing by at least one processor of a computing system configured to render a virtual environment, programmatic instructions that:
create a first visual layer, wherein the first visual layer is defined by a set of first rules comprising a first plurality of visual characteristics; and
add one or more second visual layers, wherein each of the one or more second visual layers is programmatically distinct from the first visual layer such that it is separately programmatically defined with its own set of rules while still automatically abiding by each of the set of first rules and, automatically adopting each of the first plurality of visual characteristics,
wherein the set of first rules propagates attributes across the biome to maintain consistency between different terrains of a game space,
wherein at least one of the one or more second visual layers is a clutter layer adapted to cause clutter to be placed at one or more randomly distributed points, wherein said randomly distributed points are modified based on said set of first rules to generate one or more modified randomly distributed points,
wherein clutter is placed at one or more of the modified randomly distributed points only if a value associated with each of the one or more modified randomly distributed points satisfies a predetermined threshold value, and
wherein the biome is made of a combination of the first layer and the one or more second visual layers; and
generate and render, by the computing system, the biome for display within the virtual landscape of the video game using a combination of the first visual layer and the one or more second visual layers.
The claim elements underlined above, concern the court enumerated abstract ideas of Mental Processes including observation, evaluation, and judgement because the claims are directed to series of steps for portraying information in a graphical representation according to rules and previous incorporated elements as well as Certain Methods of Organizing Human Activity including managing personal behavior including interactions between people including social activities and following rules or instructions because the claims set forth the generation of a game interface/world for a player based on a defined set of rules.
As the exemplary claim recites an Abstract Idea, Law of Nature or a Natural Phenomenon it is further considered under Prong 2 of Step 2A to determine if the claim recites additional elements that would integrate the judicial exception into a practical application. Wherein the practical applications are set forth by MPEP §2106.05(a-c,e) are broadly directed to: the improvement in technology, use of a particular machine and applying or using the judicial exception in a meaningful way beyond generally linking the use thereof to a technology environment. Limitations that explicitly do not support the integration of the judicial exception in to a practical application are defined by MPEP 2106.05(f-h) and include merely using a computer to implement the abstract idea, insignificant extra solution activity, and generally linking the use of the judicial exception to a particular technology environment or field of use.
With respect to the above the claimed invention is not integrated into a practical application because it does not meet the criteria of MPEP §2106.05(a-c,e) and although it is performed on at least one processor and a computing device/system (in certain claims), it is not directed to a particular machine because the hardware elements are not linked to a specific device/machine and would reasonably include other devices such as generic computers, smart phones, game consoles, and the like. Accordingly, the claims limitations are not indicative of the integration of the identified judicial exception into a practical application, and the consideration of patent eligibility continues to step 2B.
Step 2B requires that if the claim encompasses a judicially recognized exception, it must be determined whether the claimed invention recites additional elements that amount to significantly more than the judicial exception. The additional element(s) or combination of elements in the claim(s) other than the abstract idea(s) per se including at least one processor and a computing device/system (in certain claims) amount(s) to no more than: (i) mere instructions to implement the idea on a computer, and/or (ii) recitation of generic computer structures that serves to perform generic computer functions that are well-understood, routine, and conventional activities previously known to the pertinent industry per the applicant’s description (Applicant’s specification Paragraphs [0048]-[0051]). Viewed as a whole, these additional claim element(s) do not provide meaningful limitation(s) to transform the abstract idea into a patent eligible application of the abstract idea such that the claim(s) amounts to significantly more than the abstract idea itself.
Accordingly, as presented the claimed invention when considered as a whole, amounts to the mere instructions to implement an abstract idea [i.e. software or equivalent process steps] on a generic computer [i.e. controller or processor] without causing the improvement of the generic computer or another technology field.
The applicant’s specification is further noted as supporting the above rejection wherein neither the abstract idea nor the associated generic computer structure as claimed are disclosed as improving another technological field, improvements to the function of the computer itself, or meaningfully linking the use of an abstract idea to a particular technological environment (Applicant’s specification Paragraphs [0048]-[0051]). In particular the applicant’s specification only contains computing elements which are conventional and generally widely known in the field of the invention described, and accordingly their exact nature or type is not necessary for an understanding and use of the invention by a person skilled in the art per the requirements of 37 CFR 1.71. Were these elements of the applicant’s invention to be presented in the future as non-conventional and non-generic involvement of a computing structure, such would stand at odds with the disclosure of the applicant's invention as found in their specification as originally filed.
“[I]f a patent’s recitation of a computer amounts to a mere instruction to ‘implemen[t]’ an abstract idea ‘on . . .a computer,’ . . . that addition cannot impart patent eligibility.” Alice, 134 S. Ct. at 2358 (quoting Mayo, 132S. Ct. at 1301). In this case, the claims recite a generic computer implementation of the covered abstract idea.
The remaining presented claims 2-21 incorporate substantially similar abstract concepts as noted with respect to the exemplary claim 1, while the additional elements recited by the additional claims including one or more of at least one processor and a computing device/system (in certain claims) as respectively presented that when considered both individually and as a whole in the respective combinations of the additional claims are not sufficient to support patent eligibility under prong 2 of step 2A or step 2B for the reasons set forth above with respect to the exemplary claim 1 and further present substantially similar abstract concepts as noted with reflection to exemplary claim 1 above and therefore are similarly directed to or otherwise include abstract ideas.
Therefore, the listed claim(s) are rejected under 35 U.S.C. 101 as being directed to non-statutory subject matter.
Claim Rejections - 35 USC § 103
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.
Claims 1-21 are rejected under 35 U.S.C. 103 as being unpatentable over Sommers (US 8,368,686) in view of Street et al (US 2007/0206023).
Claim 1: The combination of Sommers & Street teaches a computer-implemented method for generating a biome within a virtual landscape of a video game, wherein the biome comprises at least two layers (Sommers Abstract; Figure 1A; Col 5:36-6:53; 8:58-9:28), wherein the method comprises:
executing by at least one processor of a computing system configured to render a virtual environment, programmatic instructions (Sommers Abstract; Figure 1; Col 2:42-54, 8:18-27, 8:58-9:28) that:
create a first visual layer, wherein the first visual layer is defined by a set of first rules comprising a first plurality of visual characteristics (-Layer 1- Sommers Abstract; Col 5:36-53, 6:3-44); and
add one or more second visual layers, wherein each of the one or more second visual layers is programmatically distinct from the first visual layer such that it is separately programmatically defined with its own set of rules while still automatically abiding, by each of the set of first rules and, automatically adopts each of the first plurality of visual characteristics (-Layers 2 & 3 related in hierarchy parent-child or tree-leaf relationship between layers- Sommers Abstract; Col 5:36-53, 6:3-44, 7:34-43, 27:50-29:29),
wherein the set of first rules propagates attributes across the biome to maintain consistency between different terrains of a game space (-referencing a layer including ‘Layer 1’ without a defined boundary that effects the entire landscape - Col 6:3-44),
wherein at least one of the one or more second visual layers is a clutter layer adapted to cause clutter to be placed at one or more randomly distributed points, wherein said randomly distributed points are modified based on said set of first rules to generate one or more modified randomly distributed points (Street Paragraphs [0007], [0051]-[0052], [0056]),
wherein clutter is placed at one or more of the modified randomly distributed points only if a value associated with each of the one or more modified randomly distributed points satisfies a predetermined threshold value (-weight values- Street Paragraphs [0007], [0051]-[0052], [0056]), and
wherein the biome is made of a combination of the first layer and the one or more second visual layers (-Layers 2 & 3 related in hierarchy parent-child or tree-leaf relationship between layers- Sommers Abstract; Col 5:36-53, 6:3-44, 7:34-43) and
generate and render, by the computing system, the biome for display within the virtual landscape of the video game using a combination of the first visual layer and the one or more second visual layers (Sommers Abstract; Figures 25-29; Col 5:36-53, 6:10-44, 7:34-43).
Sommers teaches the invention including the layer-based generation of biomes within a virtual landscape including various clutter features such as rocks and flora (Sommers Abstract; Col 1:29-37; 5:36-53, 6:3-44; 28:62). While Sommers does not explicitly teach that the clutter/rocks are randomly placed at one or more randomly distributed points, wherein said randomly distributed points are modified based on said set of first rules, wherein clutter is placed at one or more of the modified randomly distributed points only if a value associated with each of the one or more modified randomly distributed points satisfies a threshold value, Street teaches that this feature was known in an analogous prior art invention (Street Paragraphs [0007], [0051], [0056]). It would have been obvious to one of ordinary skill in the art before the earliest effective filing date of the claimed invention to have incorporated the random placement of rock clutter based on the use of randomly determined points meeting a threshold value as taught by Street with the placement of clutter objects including rocks and/or flora in Sommers because such would have provided the predictable and expected result of improving terrain appearance by enabling the addition of detail elements without the use of predefined arrangements or patterns.
Claim 2: The combination of Sommers & Street teaches the computer-implemented method of claim 1, wherein one of the set of first rules defines a location of the first visual layer (-Layer 1 AffectorHeightConstant, 10- Sommers Col 5:36-53, 6:3-44).
Claim 3: The combination of Sommers & Street teaches the computer-implemented method of claim 1, wherein one of the set of first rules defines at least one of material, height, or clutter of the first visual layer (-Layer 1 AffectorShaderConstant, Rock- Sommers Col 5:36-53, 6:3-44).
Claim 4: The combination of Sommers & Street teaches the computer-implemented method of claim 1, wherein each of the one or more second visual layers is defined by a set of second rules, wherein the set of second rules is based upon and includes the set of first rules, wherein the second set of rules comprises a second plurality of visual characteristics and wherein the second plurality of visual characteristics is different from, but does not contradict, the first plurality of visual characteristics (-Layer 2 describing Mud applied cumulatively to other layers- Sommers Col 5:36-53, 6:3-44).
Claim 5: The combination of Sommers & Street teaches the computer-implemented method of claim 4, wherein the biome further comprises one or more third visual layers, wherein each of the one or more third visual layers is programmatically distinct from the first visual layer and the one or more second visual layers and wherein each of the one or more third visual layers automatically abides by each of the set of first rules and each of the set of second rules (-Layer 3 describing Flora- Sommers Col 5:36-53, 6:3-44).
Claim 6: The combination of Sommers & Street teaches the computer-implemented method of claim 5, wherein each of the one or more third visual layers automatically adopts each of the first plurality of visual characteristics and the second plurality of visual characteristics and wherein the biome is made of a combination of the first layer, the one or more second visual layers, and the one or more third visual layers (-describing the co-presentation of the layers- Sommers Col 5:36-53, 6:3-44).
Claim 7: The combination of Sommers & Street teaches the computer-implemented method of claim 4, wherein the programmatic instructions further combine each of the set of first rules and each of the set of second rules using one or more functions (-describing the adding of layers to one another- Sommers Col 6:45-53).
Claim 8: The combination of Sommers & Street teaches the computer-implemented method of claim 7, wherein the one or more functions comprises addition and/or multiplication (-describing the adding of layers to one another- Sommers Col 6:45-53).
Claim 9: The combination of Sommers & Street teaches the computer-implemented method of claim 1, wherein the programmatic instructions further adjust the first plurality of visual characteristics by performing at least one of a blurring function, an adjust brightness function and a contrast function, an invert function, or an edge detect function (-Wherein blurring is understood as equivalent to the disclosed feathering/blending of boundary edges- Sommers Col 17:1-16).
Claim 10: The combination of Sommers & Street teaches a system for generating a biome within a virtual landscape of a video game, wherein the biome comprises at least two layers (Sommers Abstract; Figure 1A; Col 5:36-6:53; 8:58-9:28), the system comprising a computing device configured to render a virtual environment and having a processor programmed to execute a plurality of programmatic instructions (Sommers Abstract; Figure 1; Col 2:42-54, 8:18-27, 8:58-9:28) that, when executed:
create a first visual layer, wherein the first visual layer is defined by a set of first rules comprising a first plurality of visual characteristics (-Layer 1- Sommers Abstract; Col 5:36-53, 6:3-44);
add one or more second visual layers, wherein each of the one or more second visual layers is programmatically distinct from the first visual layer such that it is separately programmatically defined with its own set of rules while still automatically abiding by each of the set of first rules, and automatically adopting each of the first plurality of visual characteristics, (-Layers 2 & 3 related in hierarchy parent-child or tree-leaf relationship between layers- Sommers Abstract; Col 5:36-53, 6:3-44, 7:34-43, 27:50-29:29),
wherein the set of first rules propagates attributes across the biome to maintain consistency between different terrains of a game space (-referencing a layer including ‘Layer 1’ without a defined boundary that effects the entire landscape- Col 6:3-44),
wherein at least one of the one or more second visual layers is a clutter layer adapted to cause clutter to be placed at one or more randomly distributed points, wherein said randomly distributed points are modified based on said set of first rules, to generate one or more modified randomly distributed points (Street Paragraphs [0007], [0051]-[0052], [0056]),
wherein clutter is placed at one or more of the modified randomly distributed points only if a value associated with each of the one or more modified randomly distributed points satisfies a predetermined threshold value (-weight values- Street Paragraphs [0007], [0051], [0056]), and
wherein the biome is made of a combination of the first layer and the one or more second visual layers (-Layers 2 & 3 related in hierarchy parent-child or tree-leaf relationship between layers- Sommers Abstract; Col 5:36-53, 6:3-44, 7:34-43) and
generate and render, by the computing system, the biome for display within the virtual landscape of the video game using a combination of the first visual layer and the one or more second visual layers (Sommers Abstract; Figures 25-29; Col 5:36-53, 6:3-44, 7:34-43).
Sommers teaches the invention including the layer-based generation of biomes within a virtual landscape including various clutter features such as rocks and flora (Sommers Abstract; Col 1:29-37; 5:36-53, 6:3-44; 28:62). While Sommers does not explicitly teach that the clutter/rocks are randomly placed at one or more randomly distributed points, wherein said randomly distributed points are modified based on said set of first rules, wherein clutter is placed at one or more of the modified randomly distributed points only if a value associated with each of the one or more modified randomly distributed points satisfies a threshold value, Street teaches that this feature was known in an analogous prior art invention (Street Paragraphs [0007], [0051], [0056]). It would have been obvious to one of ordinary skill in the art before the earliest effective filing date of the claimed invention to have incorporated the random placement of rock clutter based on the use of randomly determined points meeting a threshold value as taught by Street with the placement of clutter objects including rocks and/or flora in Sommers because such would have provided the predictable and expected result of improving terrain appearance by enabling the addition of detail elements without the use of predefined arrangements or patterns.
Claim 11: The combination of Sommers & Street teaches the system of claim 10, wherein one of the set of first rules defines a location of the first visual layer (-Layer 1 AffectorHeightConstant, 10- Sommers Col 5:36-53, 6:3-44).
Claim 12: The combination of Sommers & Street teaches the system of claim 10, wherein one of the set of first rules defines at least one of material, height, or clutter of the first visual layer (-Layer 1 AffectorShaderConstant, Rock- Sommers Col 5:36-53, 6:3-44).
Claim 13: The combination of Sommers & Street teaches the system of claim 10, wherein each of the one or more second visual layers is defined by a set of second rules, wherein the set of second rules is based upon and includes the set of first rules, wherein the second set of rules comprises a second plurality of visual characteristics and wherein the second plurality of visual characteristics is different from, but does not contradict, the first plurality of visual characteristics (-Layer 2 describing Mud applied cumulatively to other layers - Sommers Col 5:36-53, 6:3-44).
Claim 14: The combination of Sommers & Street teaches the system of claim 13, wherein the biome further comprises one or more third visual layers, wherein each of the one or more third visual layers is programmatically distinct from the first visual layer and the one or more second visual layers and wherein each of the one or more third visual layers automatically abides by each of the set of first rules and each of the set of second rules (-Layer 3 describing Flora- Sommers Col 5:36-53, 6:3-44).
Claim 15: The combination of Sommers & Street teaches the system of claim 14, wherein each of the one or more third visual layers automatically adopts each of the first plurality of visual characteristics and the second plurality of visual characteristics and wherein the biome is made of a combination of the first layer, the one or more second visual layers, and the one or more third visual layers (-describing the co-presentation of the layers- Sommers Col 5:36-53, 6:3-44).
Claim 16: The combination of Sommers & Street teaches the system of claim 13, wherein, when executed, the plurality of programmatic instructions combine each of the set of first rules and each of the set of second rules using one or more functions (-describing the adding of layers to one another- Sommers Col 6:45-53).
Claim 17: The combination of Sommers & Street teaches the system of claim 16, wherein the one or more functions comprises addition and/or multiplication (-describing the adding of layers to one another- Sommers Col 6:45-53).
Claim 18: The combination of Sommers & Street teaches the system of claim 11, wherein, when executed, the plurality of programmatic instructions adjust the first plurality of visual characteristics by performing at least one of a blurring function, an adjust brightness function and a contrast function, an invert function, or an edge detect function (-Wherein blurring is understood as equivalent to the disclosed feathering/blending of boundary edges- Sommers Col 17:1-16).
Claim 19: The combination of Sommers & Street teaches the system of claim 13, wherein, when executed, the plurality of programmatic instructions adjust the second plurality of visual characteristics by performing at least one of a blurring function, an adjust brightness function and a contrast function, an invert function, or an edge detect function (-Wherein blurring is understood as equivalent to the disclosed feathering/blending of boundary edges- Sommers Col 17:1-16).
Claim 20: The combination of Sommers & Street teaches the computer implemented method of claim 1, wherein the at least one of the one or more second visual layers filters the one or more randomly distributed points by programmatically querying the set of first rules to determine which randomly distributed points satisfy the first set of rules before applying the predetermined threshold value (Sommers Col 27:50-29:29 & Street Paragraphs [0007], [0051]-[0057]).
Claim 21: The combination of Sommers & Street teaches the system of claim 10, wherein the at least one of the one or more second visual layers is adapted to filter the one or more randomly distributed points by programmatically querying the set of first rules to determine which randomly distributed points satisfy the first set of rules before applying the predetermined threshold value (Sommers Col 27:50-29:29 & Street Paragraphs [0007], [0051]-[0057]).
Response to Arguments
Applicant's arguments filed March 25th, 2026 have been fully considered but they are not persuasive.
Commencing on pages 8 through 13 of the Applicant’s above dated response the Applicant presents various arguments against the rejection of claims as being directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more as defined under 35 U.S.C. 101 including:
i. that the claimed invention is not directed to the identified enumerated grouping of abstract idea of Mental Processes when considered under Prong One of Step 2A because the claims as amended recite specific steps for the placement of clutter(rocks foliage, debris) with a virtual landscape that defines algorithmic environment generation using processing performed by a processor that cannot be performed by a human mind and that the same is analogous to the court’s decision in McRO, Inc. dba Planet Blue v. Bandai Namco Games America Inc., 120 USPQ2d 1091 (Fed. Cir. 2016) , wherein the court found rule based automations to be patent-eligible (Applicant’s Remarks Page 9);
ii. that the claimed invention is not directed to the identified enumerated grouping of abstract idea of Certain Methods of Organizing Human Activity when considered under Prong One of Step 2A because they do not involve the interactions between humans but instead computation rules governing terrain synthesis within a rendering pipeline, that analogous to the court’s decision in DDR Holdings, LLC v. Hotels.com, L.P. 773 F.3d 1245, 113 U.S.P.Q.2d 1097 (Fed. Cir. 2014) address the problem unique to computer graphics of how to generate large scale terrain procedurally without redundancy or inconsistency (Applicant’s Remarks Page 10);
iii. That the court’s decision in Thales Visionix, Inc. v. United States, 850 F.3d 1343, 1348-49, 121 USPQ2d 1898, 1902 (Fed. Cir. 2017) supports the patent eligibility of steps when performed in a particular technological environment to improve its operation and is analogous to the improvement to a specific rendering environment as claimed (Applicant’s Remarks Page 10);
iv. that the claims are directed to a practical application of any recited abstract idea when considered under Prong Two of Step 2A because the claims improve the functioning of a computer as defined by MPEP 2106.05(a) through the proposed improvements in biome generation, reflects the use of a non-generic machine that imposes meaningful limitations of claimed scope, and is analogous to consideration relied upon in Enfish LLC v. Microsoft Corp. 822 F.3d 1327, 118 U.S.P.Q.2d 1684 (Fed. Cir. 2016) (Applicant’s Remarks Pages 10-11);
v. that the claimed invention represents the inclusion of significantly more than the recited abstract idea when considered under Step 2B because the recited steps in generating the visual presentation according to defined rules and threshold-value evaluation for providing a procedurally generated biome would support the presence of significantly more similar to the subject atter addressed in BASCOM Global Internet Services v. AT&TMobility LLC, 827 F .3d 1341 (Fed. Cir. 2016) (Applicant’s Remarks Pages 11-13).
Responsive to the preceding Applicant remarks, the following is respectfully noted in the respective corresponding order as summarized above:
i.a) The claimed invention recites the court enumerated abstract ideas of Mental Processes including observation, evaluation, and judgement because the claims are directed to series of steps for portraying information in a graphical representation according to rules and previous incorporated elements as well as Certain Methods of Organizing Human Activity including managing personal behavior including interactions between people including social activities and following rules or instructions because the claims set forth the generation of a game interface/world for a player based on a defined set of rules.
While the involvement of a computer merely as a tool is noted such in of itself does not render the claims patent eligible (See MPEP 2106.04(a)(2) Sub III.C & 2106.05(f)) and does not render the claimed invention unsuitable to be performed by a human mind with the benefit of pen and paper and similar to the human creation of an image through layers such as creation of a Bob Ross styled painting.
Response to the Applicant’s remarks of this section directed to McRO, Inc. dba Planet Blue v. Bandai Namco Games America Inc., it is noted that court relied upon a similar manner as was discussed in Enfish, LLC v. Microsoft Corp., insomuch as the court looked for “an improvement in computer-related technology”. Wherein an "improvement in computer-related technology" is not limited to improvements in the operation of a computer or a computer network per se, but may also be claimed as a set of "rules" (basically mathematical relationships) that improve computer-related technology by allowing computer performance of a function not previously performable by a computer. In McRO the court found that the claims were directed to an improvement in computer-related technology (allowing computers to produce "accurate and realistic lip synchronization and facial expressions in animated characters" that previously could only be produced by human animators), and thus did not recite a concept similar to previously identified abstract ideas. While the claims of the instant invention define a set of rules for generating a game related visual presentation, these rules do not improve the functionality of the computer by allowing computer performance of a function not previously performable by a computer in a manner similar to McRO. Proposed improvements to display content generation or even improvements to the algorithms themselves that do not result in an improvement of the hardware which they are practiced on are not sufficient to improve the functionality of the computer but instead result in the mere operation or practice of these rules and algorithms on a computer in a manner specifically caution against in Alice, “[I]f a patent’s recitation of a computer amounts to a mere instruction to ‘implemen[t]’ an abstract idea ‘on . . .a computer,’ . . . that addition cannot impart patent eligibility.” Alice, 134 S. Ct. at 2358 (quoting Mayo, 132S. Ct. at 1301). Accordingly, the decision in McRO does not support the presence of patent eligible subject matter in the claimed invention as proposed.;
ii.a) Response to the Applicant’s remarks of this section summarized above, it is noted that the number of people involved in the activity is not dispositive as to whether a claim limitation falls within the grouping Certain Methods of Organizing Human Activity (see MPEP 2106.04(a)(2) Sub II).
Intellectual Ventures I LLC v. Capital One Financial (Federal Circuit, 2015) clarifies the criteria as applied in DDR to require that the claimed invention would not foreclose other ways of solving the problem, depart from the routine and conventional sequence of events, and the problem being addressed must be unique to the Internet or at least computers as fairly understood. While the claimed invention does not foreclose other alternatives for generating terrain procedurally, the applied prior art references raise question if the inventions depart from the routine and conventional sequence of events while the applicability in the procedural generation of environments. Additionally, it is not immediately clear if the problem of generating terrain procedurally is unique to computer as proposed and wouldn’t have broader applicability to procedurally generated environments in other fields, including the generation of artwork depicting landscapes both on and distinct from computer environments.
iii.a) Response to the Applicant’s remarks of this section summarized above, it is noted that the claimed invention is not limited to a specific technological system including a plurality of sensors as was the case in Thales. Instead, the claimed invention is practiced on at least one processor of a computing system and utilized the same merely as a tool to implement the abstract act idea rather than in a manner that would increase the functionality of the underlying computer technology (See MPEP 2106.05(a) 2106.05(f)).
iv.a) Response to the Applicant’s remarks of this section summarized above, the claimed invention is practiced on a generic computing environment including at least one processor of a computing system and accordingly does not limit the invention to a particular machine within the meaning of MPEP 2106.05(b). Additionally, the utilization of a computer merely as a tool to implement the abstract act idea does not increase the functionality of the underlying computer technology as proposed and accordingly does not support the presence of an improvement in technology as (See MPEP 2106.05(a) 2106.05(f)).
Responsive to the applicant’s remarks of this section concerning Enfish, it is noted that the decision in Enfish, LLC v. Microsoft Corp. explicitly presents on page 12 of the decision “In this case, however, the plain focus of the claims is on an improvement to computer functionality itself, not on economic or other tasks for which a computer is used in its ordinary capacity…Rather, they are directed to a specific improvement to the way computers operate, embodied in the self-referential table” (emphasis added). Accordingly, the enhanced functionality that is referenced in Enfish is fairly understood to describe the functionality of the computer itself and a specific improvement to the way computers operate but would specifically not support other tasks for which a computer is used in its ordinary capacity. In the instant application the plain focus of the claim is on an improved algorithm and rules for determining a biome for which a computer is utilized in its ordinary capacity to enact and accordingly the claimed invention does not meet the eligibility criteria as discussed in Enfish, LLC v. Microsoft Corp. as presented.
v.a) In BASCOM Global Internet Services v. AT&TMobility LLC, the court agreed that the additional elements were generic computer, network, and Internet components that did not amount to significantly more when considered individually, but explained that the district court erred by failing to recognize that when combined, an inventive concept may be found in the non-conventional and non-generic arrangement of the additional elements. Specifically, when considered as an ordered combination the court identified the installation of a filtering tool at a specific location, remote from the end-users, with customizable filtering features specific to each end user as representing a non-conventional and non-generic arrangement of the additional elements wherein such merged the benefits of remote based filtering tools and personal based filtering tools to create a unique beneficial arrangement that was not separately available with either of these known arrangements for filter tools previously. With relation to the preceding the presented arguments do not identify how the claimed invention when considered as an ordered combination provides significantly more than a conventional or generic arrangement of known hardware elements executing algorithm or how such provide for a unique beneficial arrangement that was not separately available with the claimed elements previously and in a manner that would separate the claimed invention from the specific arrangement as cautioned against in Alice, “[I]f a patent’s recitation of a computer amounts to a mere instruction to ‘implemen[t]’ an abstract idea ‘on . . .a computer,’ . . . that addition cannot impart patent eligibility.” Alice, 134 S. Ct. at 2358 (quoting Mayo, 132S. Ct. at 1301).
Additionally, Applicant’s argument is not persuasive because the features Applicant identifies as the inventive concept are part of the abstract idea itself; as such, these features cannot constitute the “inventive concept.” See Berkheimer v. HP, Inc., 890 F.3d 1369, 1374 (Fed. Cir. 2018) (Moore, J., concurring) (“It is clear from Mayo that the ‘inventive concept’ cannot be the abstract idea itself, and Berkheimer . . . leave[s] untouched the numerous cases from this court which have held claims ineligible because the only alleged ‘inventive concept’ is the abstract idea.”); see also BSG Tech LLC v. BuySeasons, Inc., 899 F.3d 1281, 1290 (Fed. Cir. 2018) (“It has been clear since Alice that a claimed invention’s use of the ineligible concept to which it is directed cannot supply the inventive concept that renders the invention ‘significantly more’ than that ineligible concept.”).
Continuing on pages 13 through 16 of the Applicant’s above dated response the Applicant presents that the claimed invention as amended is distinct from the previously applied prior art combination of Sommers & Street because while Sommer’s teach the a random or noise-based layered creation of a video game environment, that Sommers is allegedly silent regarding the layers as being programmatically distinct and inheriting rules and visual characteristics from previous parent layer(s).
Responsive to the preceding previously presented arguments concerning the layer inheritance, the reference term “programmatic” is understood by common meaning to reference “the relating to or done according to a plan or using a particular method” and therewith is analogous to the rule-based procedural generation system taught by Sommers (Sommers Abstract). The argued inheritance and incorporating visual characteristics from previous parent layer(s) is understood to correlate to the claimed “abiding” of layers to the rules of existing layers reflected above including at least the example of Sommers (Sommers Col 6:3-44). While the inclusion of feathering or weights for combining different layers defined by the different rules applied in Sommer’s speaks to the blending method between different layers but would not impinge on the layers being distinct (programmatically distinct) from one another (such that they may be separately added and removed) or the ability of the same to inherit “abide” properties from previously layers while continuing to impart their own properties described as a hierarchy with a parent-child or tree-leaf relationship including creating surface features such as sand dunes and hills, and then changing the texture of the features based on the orientation and/or elevation of those surfaces without referencing the objects themselves (see Sommers Abstract Figures 25-29; Col 5:36-47, 6:3-44; 27:50-29:29). Alternatively stated, the argued use of layers that are pragmatically distinct from one another and yet contain properties that propagate across layers are essential elements to procedural generated terrain in order to prevent every additional layer from conflicting with any existing layer and is reflected in various examples in Sommers including changing the color of slopes beyond a certain height, or placing grass only on certain faces of terrain features (Sommers Col 27:50-29:29), wherein these layer do not define the terrain features themselves but instead build on to separately defined layers wherein the terrain features are added to the biome.
In view of the preceding the rejection of claims is respectfully maintained as presented herein above.
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.
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ROBERT E. MOSSER
Primary Examiner
Art Unit 3715
/ROBERT E MOSSER/Primary Examiner, Art Unit 3715
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