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 1-4 and 6-20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more.
Claims 1-4 and 6-20 are directed to an abstract idea without significantly more. The claims recite a mental process that can be performed by a human being, and/or the rules of a game.
In regard to Claims 1 and 19-20, the following limitations can be performed as a mental process by a human being in terms of claiming collecting data, analyzing that data, and providing outputs based on that analysis which has been held by the CAFC to be an abstract idea in decisions such as, e.g., Electric Power Group, University of Florida Research Foundation, and Yousician v Ubisoft (non-precedential); and/or claim the rules of a game which has been identified by the CAFC as being an abstract ides in decisions such as, e.g., Savvy Dog Systems v. Pennsylvania Coin (non-precedential; 2023-1073; 3/21/24), in terms of the Applicant claiming:
[a] method for controlling opening operations in a [visual] scene […], comprising:
displaying a setting [visual display], the [first visual display] being for setting opening operations associated with an opening control;
displaying, in the setting [visual display], an adding control for adding the opening operations:
in response to [receiving data regarding] a trigger operation for the adding control, displaying an adding [visual display] of the [visual] scene, and displaying at least two interaction controls in the adding [visual display]:
receiving [data regarding] a selection operation for a target number of interaction controls; and
in response to [receiving data regarding] a save instruction for the selection operation, determining operations corresponding to the target number of interaction controls as at least two opening operations associated with the opening control;
displaying a target [visual] object and an opening control of the [visual] scene […], and the opening operations being interaction preparation operations before the target [visual] object interacts with another [visual] object;
in response to a trigger operation for the opening control, sequentially executing the at least two opening operations […] according to a predetermined operation order; and
in response to completion of execution of the at least two opening operations, canceling displaying of the opening control […], and displaying a battle interface […], the battle interface being for the target [visual] object to interact with the another [visual] object in a battle.
In regard to the dependent claims, they also claim an abstract idea to the extent that they merely claim further limitations that likewise could be performed as a mental process by a human being, and/or claim the rules of a game.
Furthermore, this judicial exception is not integrated into a practical application because to the extent that additional elements are claimed either alone or in combination such as, e.g., embodying Applicant’s abstract idea as computer code stored in a memory that executes on one or more computer processors, and/or employing user interfaces, these are merely claimed to add insignificant extra-solution activity to the judicial exception (e.g., data gathering), to embody the abstract idea on a general purpose computer, and/or do no more than generally link the use of a judicial exception to a particular technological environment or field of use. In this regard, see MPEP 2106.04(d)(I) in regard to “courts have also identified limitations that did not integrate a judicial exception into a practical application…”
Furthermore, the claims do not include additional elements that taken individually, and also taken as an ordered combination, are sufficient to amount to significantly more than the judicial exception because to the extent that, e.g., embodying Applicant’s abstract idea as computer code stored in a memory that executes on one or more computer processors, and/or employing user interfaces, these are well-understood, routine, and conventional elements and are claimed for the well-understood, routine, and conventional functions of collecting and processing data and/or providing an analysis/outputs based on that processing. To the extent that an apparatus is claimed as an additional element said apparatus fails to qualify as a “particular machine” to the extent that it is claimed generally, merely implements the steps of Applicant’s claimed method, and is claimed merely for purposes of extra-solution activity or field of use. See MPEP 2106.05(b). As evidence that these additional elements are well-understood, routine, and conventional, Applicant’s specification discloses the support for these 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). See, e.g., F2 in Applicant’s PGPUB and text regarding same.
Response to Arguments
Applicant argues on page 11 of its Remarks in regard to the rejections made under 35 USC 101:
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Applicant’s arguments are unpersuasive. Applicant’s claimed abstract idea may be characterized as gathering data regarding various hand gestures (e.g., trigger operation, selection operation, save instruction, opening control) used in the play of a game and then determining, in part, the outcome of the game based on those gestures. And the use of hand gestures as being part of the rules of various games (e.g., requesting cards in blackjack, moving pieces in RPG games, etc.) is well-known, routine, and conventional. The fact that Applicant’s has claimed its abstract idea embodied by employing, e.g., a generic user interface and computing device does not add “significantly more” to this.
Applicant argues on pages 11-12 of its Remarks in regard to the rejections made under 35 USC 101:
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Applicant’s arguments are unpersuasive because the claimed terminal device and user interface are not alleged in the 101 rejection made supra as being part of the abstract idea that can be performed mentally.
Applicant argues on pages 13 of its Remarks in regard to the rejections made under 35 USC 101:
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Applicant’s arguments are unpersuasive. Applicant’s claimed invention is not analogous to that of Core Wireless because it does not concern anything like a system of menus that as part of a user interface thereby optimized the use of a small mobile device screen. To the extent that Applicant alleges that the advantage of its claimed user interface is that it allows the human user to act more efficiently that does not claim patent eligible subject matter under the Mayo test. See in this regard, e.g., the CAFC’s opinion in Trading Tech v IBG LLC, slip. op., page 9 (“This invention makes the trader faster and more efficient, not the computer. This is not a technical solution to a technical problem,” emphasis original.)
Applicant argues on pages 13 of its Remarks in regard to the rejections made under 35 USC 101:
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Applicant’s arguments are unpersuasive. The CAFC in CQG did not hold that claiming a GUI that resolves any “identified problem” thereby renders patent eligible subject matter. Of course, the solution of the “problem” must be of a patent eligible nature. See from CQG:
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Id., slip. op., page 3.
The “problem” that Applicant’s claimed invention seeks to “resolve”, however, is not of a patent eligible nature. In terms of, it concerns the rules of a game and/or a mental process and not an improvement to computing technology analogous to that of CQG.
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.
Any inquiry concerning this communication or earlier communications from the Examiner should be directed to Mike Grant whose telephone number is 571-270-1545. The Examiner can normally be reached on Monday through Friday between 8:00 a.m. and 5:00 p.m., except on the first Friday of each bi-week.
If attempts to reach the Examiner by telephone are unsuccessful, the Examiner's Supervisory Primary Examiner, Peter Vasat can be reached at 571-270-7625. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MICHAEL C GRANT/Primary Examiner, Art Unit 3715
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