DETAILED ACTION
This communication is a Final Rejection Office Action in response to the 7/9/2024 submission filed in Application 18/113,902. Claims 1, 4, 9, 12 have been amended. Claims 2-3, 10-11, 17 have been cancelled. Claim 18 has been added. Claims 1, 4-9, 12-16, 18 are now presented.
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Response to Arguments
Applicant’s arguments filed 7/9/2024, with respect to regarding the prior art have been fully considered and are persuasive. The prior art rejections have been withdrawn.
Applicant's remaining arguments have been fully considered but they are not persuasive.
Regarding the rejection under 101, the Applicant argues “The recited method relates to acquiring frequency response data from a wireless access point which is processed in dependence upon a radio map to establish both that one or more individuals of a set of individuals are present within the monitored space and the one or more corresponding locations of the one or more individuals of the set of individuals established as present within the monitored space. Based upon the establishment of the one or more individuals of the set of individuals as present within the monitored space and the one or more corresponding locations of the one or more individuals of the set of individuals a selected content file is established from a plurality of content files stored within a content file database wherein the selected content file is then rendered upon an Internet-enabled media display device associated with the monitored space…Accordingly, the process acquires data of physical wireless signals associated with a monitored area, processes the data to define a number of individuals and their locations within a monitored area and causes a content file to be rendered upon a display based upon the number of individuals and their locations where when multiple potential content files are identified the appropriate content file is established based upon an engagement level of the set of individuals.”
The Examiner is unpersuaded by the Applicants arguments that the claims are not directed to non-statutory subject matter. The Examiner asserts that “establishing a selected content file from a plurality of content files available from a content file database in dependence upon the establishment of the one or more individuals of the set of individuals as present within the monitored space and the one or more corresponding locations of the one or more individuals of the set of individuals; and rendering the selected content file on the Internet-connected media display device” is directed to sales and marketing activities. The 2019 PEG states that sales and marketing activities are abstract.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1, 8, 18 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1-3, 10-12, 17-18 of U.S. Patent No. 11,593,837. Although the claims at issue are not identical, they are not patentably distinct from each other because the claims in the instant application are broader that the claim in U.S. Patent No. 11,593,837.
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, 4-9, 12-16, 18 are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter.
When considering subject matter eligibility under 35 U.S.C. 101, in step 1 it must be determined whether the claim is directed to one of the four statutory categories of invention, i.e., process, machine, manufacture, or composition of matter. If the claim does fall within one of the statutory categories, in step 2A prong 1 it must then be determined whether the claim is recite a judicial exception (i.e., law of nature, natural phenomenon, and abstract idea). If the claim recites a judicial exception, under step 2A prong 2 it must additionally be determined whether the recites additional elements that integrate the judicial exception into a practical application. If a claim does not integrate the Abstract idea into a practical application, under step 2B it must then be determined if the claim provides an inventive concept.
In the Instant case Claims 1, 4-8, 18 are directed toward a method for filtering advertisements based on individuals in a monitored space. Claims 9, 12-16 are directed toward a system for filtering advertisements based on individuals in a monitored space. As such, each of the Claims is directed to one of the four statutory categories of invention.
The 2019 Preliminary Examination Guidance (2019 PEG), explains that in step 2A prong 1 examiners are to evaluate claims to determine if they recite an abstract idea. The guidance explains that claims that recite mathematical concepts, mental processes, and methods of organizing human activity recite abstract ideas. As per step 2A prong 1 of the eligibility analysis, claim 1 recites the abstract idea of identifying that a set of one or more individuals is present at one or more corresponding locations and filtering content files based on the individuals which falls into the abstract idea categories of certain methods of organizing human activity and mental processes. The elements of Claim 1 that represent the Abstract idea include:
A method for engagement-based targeting, the method comprising:
processing the acquired frequency response data in conjunction with a radio map to establish that one or more individuals of a set of individuals are present within the monitored space and one or more corresponding locations of the one or more individuals of the set of individuals where the radio map identifies wireless signal strengths associated with different locations within the monitored space;
establishing a selected content file from a plurality of content files available from a content file database in dependence upon the establishment of the one or more individuals of the set of individuals as present within the monitored space and the one or more corresponding locations of the one or more individuals of the set of individuals; and
rendering the selected content file on the Internet-connected media display device; wherein establishing the selected content file further comprises:
determining that two or more content files of the plurality of content files qualify to be the selected content file;
determining a current flag count for each of the two or more content files of the plurality of content files based on a respective engagement level where establishing the two or more content files of the plurality of content files is based upon a flag count of each of the two or more content files of the plurality of content files; and the selected content file based on a comparison of the flag count of each of the two or more content files of the plurality of content files; and
determining the flag count for each of the two or more content files of the plurality of content files comprises:
identifying a change in the engagement level based on a first size of the set of individuals being different than a second size of the set of individuals associated with a prior timestamp; and
adjusting a current flag count of the respective content file in accordance with the identified change in engagement level.
Claim 18 also recites “wherein the radio map further comprises metadata regarding at least one of frequency data of a channel, phase response data of the channel, and impulse response data of the channel that describe a wireless communication link between paired devices used to compare with a signal scan”. However, this limitations does not state how the data is acquired or what it is used for. The claim merely recites that the radio map comprises this data which further limits that abstract step of “processing the acquired frequency response data in conjunction with a radio map to establish that one or more individuals of a set of individuals are present within the monitored space and one or more corresponding locations of the one or more individuals of the set of individuals where the radio map identifies wireless signal strengths associated with different locations within the monitored space:.
The 2019 PEG states certain method of organizing human activity including commercial or legal interactions (including agreements in the form of contracts; legal obligations; advertising, marketing or sales activities or behaviors; business relations) are abstract. The instant claims are directed to marketing or sales activities or behaviors as identifying a set of individual present in a space and presenting content based on the determination is a sales and marketing activity. Further, the claim recites mental processes including observation, evaluation, judgment, opinion. For example, the comparing, identifying and filtering steps are drawn to judgment and evaluation. As such, the claim recites at least one abstract idea.
Under step 2A prong 2 the Examiner must then determine if the recited abstract idea is integrated into a judicial exception. The 2019 PEG states that additional elements that are indicative of integration into a practical application include:
Improvements to the functioning of a computer, or to any other technology or technical field - see MPEP 2106.05(a)
Applying or using a judicial exception to effect a particular treatment or prophylaxis for a disease or medical condition – see Vanda Memo
Applying the judicial exception with, or by use of, a particular machine - see MPEP 2106.05(b)
Effecting a transformation or reduction of a particular article to a different state or thing - see MPEP 2106.05(c)
Applying or using the judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment, such that the claim as a whole is more than a drafting effort designed to monopolize the exception - see MPEP 2106.05(e) and Vanda Memo
Limitations that are not indicative of integration into a practical application:
Adding the words “apply it” (or an equivalent) with the judicial exception, or mere instructions to implement an abstract idea on a computer, or merely uses a computer as a tool to perform an abstract idea - see MPEP 2106.05(f)
Adding insignificant extra-solution activity to the judicial exception - see MPEP 2106.05(g)
Generally linking the use of the judicial exception to a particular technological environment or field of use – see MPEP 2106.05(h)
In the instant case, this judicial exception is not integrated into a practical application. In particular, Claims 1 recites the additional elements of:
acquiring frequency response data of wireless signals received by a wireless access point associated with a monitored space which includes an Internet-connected media display device;
Claim 9 recites the additional elements of a wireless access point associated with a monitored space; and a cloud server that performs the recited abstract idea
Claim 18 recites the additional elements of acquiring frequency response data of wireless signals received by a wireless access point associated with a monitored space which includes an Internet-connected media display device;
However, the wireless access point associated with a monitored space which includes an Internet-connected media display device; is indicative of generally linking the use of the judicial exception to a particular technological environment. For example, the abstract idea of filtering content based on the set of individual viewing the content is linked to the particular technological environment that includes wireless access points located in a monitored space.
Further, MPEP 2105.05(g) explains that data gathering and data output can be considered pre-solution activity and post-solution activity. See MPEP 2106.05(g) that states:
An example of pre-solution activity is a step of gathering data for use in a claimed process, e.g., a step of obtaining information about credit card transactions, which is recited as part of a claimed process of analyzing and manipulating the gathered information by a series of steps in order to detect whether the transactions were fraudulent. An example of post-solution activity is an element that is not integrated into the claim as a whole, e.g., a printer that is used to output a report of fraudulent transactions, which is recited in a claim to a computer programmed to analyze and manipulate information about credit card transactions in order to detect whether the transactions were fraudulent.
In the instant case, acquiring frequency response data of wireless signals is considered mere data gathering which is incidental to the primary process in a similar way that obtaining information about credit card transactions to be analyzed was incidental to the primary process explained above.
When viewing the generally linking the use of the judicial exception to a particular technological environment in combination with the broadly recited acquiring does not add more than when viewing the elements individually. Accordingly, the additional elements do not integrate the abstract idea into a practical application because they do not impose any meaningful limits on practicing the abstract idea.
In step 2B, the examiner must be determine whether the claim adds a specific limitation other than what is well-understood, routine, conventional activity in the field - see MPEP 2106.05(d). As discussed with respect to Step 2A Prong Two, the additional elements in the claim amount to no more than mere instructions to apply the exception using a generic computer component. The same analysis applies here in 2B, i.e., mere instructions to apply an exception on a generic computer cannot integrate a judicial exception into a practical application at Step 2A or provide an inventive concept in Step 2B.
Similarly, generally linking the use of the judicial exception to a particular technological environment cannot integrate a judicial exception into a practical application at Step 2A or provide an inventive concept in Step 2B.
Further, the acquiring frequency response data of wireless signals is recited broadly in the claims. MPEP 2106.05(d) states receiving or transmitting data over a network, e.g., using the Internet to gather data is conventional when claimed generically (see Symantec, 838 F.3d at 1321, 120 USPQ2d at 1362 (utilizing an intermediary computer to forward information); TLI Communications LLC v. AV Auto. LLC, 823 F.3d 607, 610, 118 USPQ2d 1744, 1745 (Fed. Cir. 2016) (using a telephone for image transmission); OIP Techs., Inc., v. Amazon.com, Inc., 788 F.3d 1359, 1363, 115 USPQ2d 1090, 1093 (Fed. Cir. 2015) (sending messages over a network); buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355, 112 USPQ2d 1093, 1096 (Fed. Cir. 2014) (computer receives and sends information over a network)). As such, the broadly claimed monitoring can be considered the transmittal of data over a network and is considered well-known and conventional as established by the MPEP and relevant case law.
When viewing the generally linking the use of the judicial exception to a particular technological environment in combination with the broadly recited acquiring does not add more than when viewing the elements individually. Accordingly, the additional elements do not provide an inventive concept.
Further Claims 4-8 further limit the mental processes and advertising activities recited in the parent claim, but fail to remedy the deficiencies of the parent claim as they do not impose any additional elements that amount to significantly more than the abstract idea itself.
Accordingly, the Examiner concludes that there are no meaningful limitations in claims 1, 4--8 that transform the judicial exception into a patent eligible application such that the claim amounts to significantly more than the judicial exception itself.
The analysis above applies to all statutory categories of invention. The presentment of claim 1 otherwise styled as a computer program product or system, for example, would be subject to the same analysis. As such, claims 9, 12-16 and 18 are also rejected.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/DEIRDRE D HATCHER/Primary Examiner, Art Unit 3625
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