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 .
Priority
This application claims priority to US Provisional Application No. 63/393,121 filed July 28, 2022.
Claims Status
Claims 1-20 are pending.
Claims 10-12 and 14-19 stand withdrawn without traverse as set forth previously.
Claims 1-9, 13, and 20 stand rejected.
Response to Arguments
I. Applicant’s arguments with respect to the rejection of claim 6 under 35 USC 112(b) have been fully considered and are persuasive in view of the accompanying amendments. The rejection is overcome.
II. Applicant’s arguments with respect to the rejection under 35 USC 101 have been fully considered but are not persuasive.
Applicant argues that the claimed invention sets forth a specific “computer-implemented remediation architecture” and is not directed to either organizing human activity or fundamental economic practices. Initially, the Examiner reminds Applicant that Step 2A is a two-prong inquiry, in which examiners determine in Prong One whether a claim recites a judicial exception, and if so, then determine in Prong Two if the recited judicial exception is integrated into a practical application of that exception.
The Examiner maintains that the claimed invention recites an abstract idea, such as by setting forth or describing remediating changes in item listing data. Under Prong One, a claim recites a judicial exception (i.e. a law of nature, natural phenomenon, or abstract idea) is set forth or described in the claim. The presence of additional elements does not negate the recitation of the abstract idea. Additional elements are evaluated in Prong Two and Step 2B.
Although the claim employs additional elements they are not sufficient to integrate the abstract idea in to a practical application. Although Applicant attempts to couch the claims in more technical terminology by referencing “bidirectional transmission”, the claims are nothing more than the mere instructions to implement or apply the abstract idea on generic computing hardware (or, merely uses a computer as a tool to perform an abstract idea). Furthermore, they represent the mere automation of manual processes and fail to go beyond the use of the judicial exception to a particular technological environment.
The Examiner draws Applicant’s attention to Recentive Analytics, Inc v. Fox Corp (Fed Cir, 2023-2437, 4/18/2025), which held claims to the use of machine learning for generation of network maps and schedules for television broadcasts and live events to be ineligible. The court affirmed the district court in upholding the determination the patents are directed to the abstract idea of using a generic machine learning technique in a particular environment. Similar to Recentive, the current claims seek to use machine learning concepts in a particular environment in an effort to improve the abstract idea of predicting intervention suggestions in order to shift preferences of a user based on information about that user. Notably, the circuit court maintained their finding despite the recitation of an “iterative” training process.
Lastly, if it is asserted that the invention improves upon conventional functioning of a computer, or upon conventional technology or technological processes, a technical explanation as to how to implement the invention should be present in the specification. That is, the disclosure must provide sufficient details such that one of ordinary skill in the art would recognize the claimed invention as providing an improvement. Although the specification need not explicitly set forth the improvement, it must describe the invention such that the improvement would be apparent to one of ordinary skill in the art. Conversely, if the specification explicitly sets forth an improvement but in a conclusory manner (i.e., a bare assertion of an improvement without the detail necessary to be apparent to a person of ordinary skill in the art), the examiner should not determine the claim improves technology (see MPEP 2106.05(a); MPEP 2106.04(d)(1)).
The Examiner disagrees that the claims provide an improvement to computing technology. This is because the claims, at best, provide an improvement to the abstract idea itself (i.e., remediating item listings), not the functioning of the computer itself or another technology or technical field. This is also because Applicant’s arguments – in view of the specification - fail to provide more than a bare assertion of such an improvement. For at least these reasons, the rejection under 35 USC 101 is maintained below.
III. Applicant’s arguments with respect to the rejection under 35 USC 103 have been fully considered and are persuasive in view of the accompanying amendment. Applicant’s arguments are incorporated herein. For further discussion, see below under the heading Subject Matter Allowable Over the Prior Art.
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 1-9, 13 and 20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception (abstract idea) without significantly more.
Regarding claims 1-9, 13 and 20, under Step 2A claims 1-9, 13 and 20 recite a judicial exception (abstract idea) that is not integrated into a practical application and does not provide significantly more.
Under Step 2A (prong 1), and taking claim 1 as representative, claim 1 recites a method for implementing remediations to item listing data,
receiving a topic for a change in item listing data;
inputting the item listing data associated with the topic as input to the at least one model;
receiving output from the at least one model indicating at least one suggestion to remediate the item listing data;
determining that the at least one suggestion satisfies auto- remediation criteria; and
auto-remediating, based on a determination that the at least one suggestion satisfies the auto-remediation criteria, the item listing data with the at least one suggestion;
in response to a suggested remediation (i) not satisfying the auto-remediation criteria and (ii) being rejected by a user, generating, by the computing system, an output to be presented indicating the suggested remediation; and,
receiving user input indicating a rejection of the suggested remediation and an identification of a user-defined remediation.
These limitations recite ‘certain methods of organizing human activity, such as by performing commercial interactions and/or fundamental economic principals or practices (see: MPEP 2106.04(a)(2)(II)). This is because the claim sets forth or describes remediating changes in item listing data. This represents the performance of a marketing or sales activities or behaviors, which is a commercial interaction. This also describes concepts relating to the economy and commerce that represent fundamental economic practices.
Accordingly, under step 2A (prong 1) claim 1 recites an abstract idea because claim 1 recites limitations that fall within the “Certain methods of organizing human activity” grouping of abstract ideas.
Under Step 2A (prong 2), the abstract idea is not integrated into a practical application. The Examiner acknowledges that representative claim 1 does recite additional elements, including:
an online retail environment,
a computing system,
a data management system, and,
retrieving, by the computing system from a data store, at least one model that was trained using machine learning techniques to (i) identify changes in other item listing data, (ii) determine at least one suggested remediation to the changes in the other item listing data to generate accurate item listing data, and (iii) determine at least one confidence metric indicating a likelihood that the at least one suggested remediation will result in generating the accurate item listing data;
a graphic user interface (GUI) display at a user device,
transmitting, by the computing system, to the user device, the generated output;
training, by the computing system, the at least one model using the user-defined remediation to identify remediations for other item listing data that does not satisfy the auto- remediation criteria.
Although reciting these additional elements, taken alone or in combination these elements are not sufficient to integrate the abstract idea into a practical application. This is because the additional elements of claim 1 are recited at a high level of generality (i.e. as generic computing hardware) such that they amount to nothing more than the mere instructions to implement or apply the abstract idea on generic computing hardware (or, merely uses a computer as a tool to perform an abstract idea). Moreover, the term “model” in general refers to “a system of postulates, data, and inferences presented as a mathematical description of an entity or state of affairs” (https://www.merriam-webster.com/dictionary/model). Similarly, it may refer to “a simplified representation of a system or phenomenon, as in the sciences or economics, with any hypotheses required to describe the system or explain the phenomenon, often mathematically” (https://www.dictionary.com/browse/model). Even presuming the model is implemented as software, it’s use remains nothing more than mere instructions to implement or apply the abstract idea on generic computing hardware. That is, even in light of training the model, the only thing the claims disclose about the use of machine learning technique is that the technique is used with respect to specific data (e.g., user defined remediations) to accomplish the abstract idea.
Further, the additional elements do no more than generally link the use of a judicial exception to a particular technological environment or field of use (such as the Internet or computing networks). This is notably true in relation to placing the listings within an online retail environment.
Secondly, the additional elements are insufficient to integrate the abstract idea into a practical application because the claim fails to (i) reflect an improvement in the functioning of a computer, or an improvement to other technology or technical field, (ii) implement the judicial exception with, or use the judicial exception in conjunction with, a particular machine or manufacture that is integral to the claim, (iii) effect a transformation or reduction of a particular article to a different state or thing, or (iv) applies or uses the judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment.
In addition to the above, retrieving, by the computing system from a data store, at least one model that was trained using machine learning techniques… and transmitting, by the computing system, to the user device, the generated output represent little more than extra-solution activity (e.g. data gathering and output) that contributes only nominally or insignificantly to the execution of the claimed method (see: MPEP 2106.05(g)).
In view of the above, under Step 2A (prong 2), claim 1 does not integrate the recited exception into a practical application.
Under Step 2B, examiners should evaluate additional elements individually and in combination to determine whether they provide an inventive concept (i.e., whether the additional elements amount to significantly more than the exception itself). In this case, the claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception.
Returning to representative claim 1, taken individually or as a whole the additional elements of claim 1 do not provide an inventive concept (i.e. they do not amount to “significantly more” than the exception itself). As discussed above with respect to the integration of the abstract idea into a practical application, the additional elements used to perform the claimed process amount to no more than the mere instructions to apply the exception using a generic computer and/or no more than a general link to a technological environment.
Furthermore, the additional elements fail to provide significantly more also because the claim simply appends well-understood, routine, conventional activities previously known to the industry, specified at a high level of generality, to the judicial exception. For example, the additional elements of claim 1 utilize operations the courts have held to be well-understood, routine, and conventional (see: MPEP 2106.05(d)(II)), including at least:
receiving or transmitting data over a network,
storing or retrieving information from memory,
presenting offers
The Examiner perceives nothing in the claims, whether considered individually or in their ordered combination, that would transform the training into something “significantly more” than the abstract idea of remediating changes in item listing data. Even considered as an ordered combination (as a whole), the additional elements of claim 1 do not add anything further than when they are considered individually.
In view of the above, representative claim 1 does not provide an inventive concept (“significantly more”) under Step 2B, and is therefore ineligible for patenting.
Regarding dependent claims 2-9 and 13, dependent claims 2-9 and 13 recite more complexities descriptive of the abstract idea itself, and at least inherit the abstract idea of claim 2-9 and 13. As such, claims 2-9 and 13 are understood to recite an abstract idea under step 2A (prong 1) for at least similar reasons as discussed above.
Under prong 2 of step 2A, the additional elements of dependent claims 2-9 and 13 also do not integrate the abstract idea into a practical application, considered both individually or as a whole. More specifically, claims 2-9 and 13 rely on at least similar additional elements recited only a t ahigh level of generality as addressed with respect to claim 1. Further additional elements such as a graphical user interface (e.g., claim 4) and training the model (claim 5) are also recited only at a high level of generality (i.e. as generic computing hardware) such that they amount to nothing more than the mere instructions to implement or apply the abstract idea on generic computing hardware (or, merely uses a computer as a tool to perform an abstract idea). Further, the additional elements do no more than generally link the use of a judicial exception to a particular technological environment or field of use (such as the Internet or computing networks).
Lastly, under step 2B, claims 2-9 and 13 also fail to result in “significantly more” than the abstract idea under step 2B. This is again because the claims merely apply the exception on generic computing hardware, generally link the exception to a technological environment, and append well-understood, routine, conventional activities previously known to the industry, specified at a high level of generality, to the judicial exception.
Even when viewed as an ordered combination (as a whole), the additional elements of the dependent claims do not add anything further than when they are considered individually.
In view of the above, claims 2-9 and 13 do not provide an inventive concept (“significantly more”) under Step 2B, and are therefore ineligible for patenting.
Regarding claim 20 (system), claim 20 recites at least substantially similar concepts and elements as recited in claim 1 such that similar analysis of the claims would be readily apparent to one of ordinary skill in the art. With respect to additional elements such as one or more processors and one or more computer-readable device including instructions, the Examiner reiterates the discussion under Step 2A (Prong 2) and Step 2B above. Accordingly, claim 20 is rejected under at least similar rationale as discussed above.
Subject Matter Allowable Over the Prior Art
Claims 1-9, 13, and 20 remain rejected on other grounds but contain subject matter allowable over the prior art. The following is an indication of that subject matter (emphasis added):
in response to a suggested remediation (i) not satisfying the auto-remediation criteria and (ii) being rejected by a user, generating, by the computing system, an output to be presented in a graphic user interface (GUI) display at a user device indicating the suggested remediation;
transmitting, by the computing system, to the user device, the generated output;
receiving, by the computing system from the user device via the GUI display, user input indicating a rejection of the suggested remediation and an identification of a user-defined remediation; and
training, by the computing system, the at least one model using the user-defined remediation to identify remediations for other item listing data that does not satisfy the auto- remediation criteria.
Notably, the amendment above draws from similar subject matter of claim 5, which was previously indicated as allowable over the prior art. Neither XU nor Singh, nor the other prior art available teaches or renders obvious to combination of features above, especially in view of the emphasized limitations (bold). The Examiner hereby asserts that the totality of the evidence neither anticipates nor renders obvious the particular combination of elements as claimed above. That is, the Examiner emphasizes the claims as a whole and hereby asserts that the totality of the evidence fails to set forth, either explicitly or implicitly, an appropriate rationale for combining or otherwise modifying the available prior art to arrive at the claimed invention. The combination of features as claimed would not have been obvious to one of ordinary skill in the art because any combination of the evidence at hand to reach the combination of features as claimed would require a substantial reconstruction of Applicant’s claimed invention relying on improper hindsight bias.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure:
PTO form 892-U discusses the use of reputation system in relation to fraud investigations on electronic marketplaces (see: Abstract, Section V).
Applicant's amendment necessitated any of the changes to the 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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to WILLIAM J ALLEN whose telephone number is (571)272-1443. The examiner can normally be reached Monday-Friday, 8:00-4:00.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Anita Coupe can be reached at 571-270-3614. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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WILLIAM J. ALLEN
Primary Examiner
Art Unit 3625
/WILLIAM J ALLEN/Primary Examiner, Art Unit 3619
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