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 .
DETAILED ACTION
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 1-10, 13-21 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more. The claims are directed to the abstract idea of mental processes and/ or certain methods of organizing human activity. The claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception as discussed below.
Step 1 of the 2019 Revised Patent Subject Matter
More specifically, regarding Step 1, of the 2019 Revised Patent Subject Matter Eligibility Guidance, the claims are directed to a machine, process, and/or an article of manufacturer, which are statutory categories of invention.
Step 2a – Prong 1 of the 2019 Revised Patent Subject Matter Eligibility Guidance
Next, the claims are analyzed to determine whether it is directed to a judicial exception.
Claim 10 is exemplary to each of the independent claims, as claims 1 & 17 recite a device and a non-transitory computer-readable storage medium that store instructions to facilitate substantially the same functional steps as claim 10.
Claim 10 recites a process of launching a game, placing a user in a queue, receiving wait information, scraping it from a web page, and displaying it based on controller input can be characterized as a method of organizing human activity (queue management) and a mental process (observing wait times, evaluating controller actions, and displaying results). The use of a browser and cloud streaming service aligns with conventional data collection and display, which courts have found abstract absent a specific technological improvement. See Intellectual Ventures I LLC v. Capital One Bank (USA), 792 F.3d 1363 (Fed. Cir. 2015) (collecting and analyzing data via generic computer functions is abstract).
Dependent Claims: These refine the abstract idea by specifying dynamic updates, game identification, wait info details, display formats, and implementation details (e.g., embedded code, single/event-based payloads). However, these are enhancements to the core abstract process of queue management and data presentation, not a departure from it. Courts have held that adding specificity to an abstract idea (e.g., particular data types or display methods) does not inherently make it non-abstract. See RecogniCorp, LLC v. Nintendo Co., Ltd., 855 F.3d 1322 (Fed. Cir. 2017).
The claims appear directed to an abstract idea—specifically, a method of managing a user’s wait in a queue and displaying related information—executed using generic computing components (processors, non-transitory medium, browser, controller). There is no indication of a specific improvement to computer technology itself (e.g., a new way to process data or enhance browser functionality beyond conventional use).
Step 2a – Prong 2 of the 2019 Revised Patent Subject Matter Eligibility Guidance
The second prong of step 2a is the consideration if the claim limitations are directed to a practical application.
Limitations that are indicative of integration into a practical application:
-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)
Claims 1-10, 13-21 do not improve the functioning of a computer, as they only incorporate generic computing elements, do not effect a particular treatment, and do not transform or reduce a particular article to a different state or thing. Similarly, there is no improvement to a technical field. In addition, the claims do not apply the judicial exception with, or by use of a particular machine. The claims do not apply or use the judicial exception in a meaningful way. The claimed invention does not suggest improvements to the functioning of a computer or to any other technology or technical field (see MPEP 2106.05 (a)).
This judicial exception is not integrated into a practical application because the claimed invention merely applies the judicial exception, or mere instructions to implement an abstract idea on a computer, or merely uses a computer as a tool to perform the abstract idea (MPEP 2106.05 (f)) and/ or generally links the use of the judicial exception to a particular technology or field of use (MPEP 2106.05 (h)). The claimed computer components are recited at a level of generality and are merely invoked as tool to perform the abstract idea. Simply implementing the abstract idea on a generic computer is not a practical application of the abstract idea.
For the reasons as discussed above, the claim limitations are not integrated to a practical application.
Step 2b of the 2019 Revised Patent Subject Matter Eligibility Guidance
Next, the claims as a whole are analyzed to determine whether any element, or combination of elements, is sufficient to ensure that the claim amounts to significantly more than the exception.
The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because no element or combination of elements is sufficient to ensure any claim of the present application as a whole amounts to significantly more than one or more judicial exceptions, as described above. The claims rely on: a computing device with processors and a non-transitory medium (generic hardware), a browser for launching a cloud game and displaying a web page (conventional internet technology), program instructions to scrape data from an unknown location and process controller inputs (standard web scraping and input handling, e.g., using JavaScript or APIs) and dynamic updates and display adjustments (routine data processing and UI updates).
The claims do not appear to recite a specific technological improvement. For example: Scraping from an "unknown location" is addressed by generic web scraping techniques (e.g., DOM traversal). Hiding/re-displaying the browser based on controller input is a routine UI adjustment. The use of embedded code, single payloads, or event-based triggers is standard in web development (e.g., JavaScript event listeners).
The Federal Circuit has held that merely implementing an abstract idea on a generic computer, even with specific rules or data, does not suffice unless it improves the computer’s functionality or solves a technical problem in a non-conventional way. See Berkheimer v. HP Inc., 881 F.3d 1360 (Fed. Cir. 2018). Here, the claims use off-the-shelf technology (browsers, controllers, cloud servers) in a predictable manner to perform queue management, lacking a transformative inventive concept.
Consequently, consideration of each and every element of each and every claim, both individually and as an ordered combination, leads to the conclusion that the claims are not patent-eligible under 35 USC §101.
Filing of New or Amended Claims
The examiner has the initial burden of presenting evidence or reasoning to explain why persons skilled in the art would not recognize in the original disclosure a description of the invention defined by the claims. See Wertheim, 541 F.2d at 263, 191 USPQ at 97 (“[T]he PTO has the initial burden of presenting evidence or reasons why persons skilled in the art would not recognize in the disclosure a description of the invention defined by the claims.”). However, when filing an amendment an applicant should show support in the original disclosure for new or amended claims. See MPEP § 714.02 and § 2163.06 (“Applicant should specifically point out the support for any amendments made to the disclosure.”). Please see MPEP 2163 (II) 3. (b)
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 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.
Correspondence
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SENG H LIM whose telephone number is (571)270-3301. The examiner can normally be reached Monday-Friday (9-5).
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/Seng H Lim/Primary Examiner, Art Unit 3715