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 .
Specification
The abstract of the disclosure does not commence on a separate sheet in accordance with 37 CFR 1.52(b)(4) and 1.72(b). A new abstract of the disclosure is required and must be presented on a separate sheet, apart from any other text.
Response to Arguments
Applicant's arguments filed with respect to the rejection made under § 101 have been fully considered but they are not persuasive.
Applicant argues that “the claims are directed to a practical application constituting a technical improvement for an e-commerce platform for skincare products” and that “the unique algorithm for generating a personalized avoid list of ingredients and a personalized recommended or okay to use list of ingredients that the user should consider when purchasing skincare products is a technical solution for a skincare e-commerce platform”.
This is a problem at the abstract layer of organizing human activities, not one borne out of technology. The problems noted in the Background do not highlight any failures of modern computers and instead highlight the problem that modern concepts of clean beauty do not address the whole person or take into account all medical conditions relevant to a consumer (¶ 0003). These are business implementation problems and do not set forth any deficiencies that are particular to computer capabilities or any other technology. "In sum, 'software can make non-abstract improvements to computer technology just as hardware improvements can.' Enfish, 822 F.3d at 1335. But to be directed to a patent-eligible improvement to computer functionality, the claims must be directed to an improvement to the functionality of the computer or network platform itself." Customedia Techs., LLC v. Dish Network Corp., 951 F.3d 1359, 1365 (Fed. Cir. 2020) (emphasis added).
These elements are all abstract and when viewed in combination only amount to applying the abstract idea on generic computers. "Examiners evaluate integration into a practical application by: (1) identifying whether there are any additional elements recited in the claim beyond the judicial exception(s); and (2) evaluating those additional elements individually and in combination to determine whether they integrate the exception into a practical application…" MPEP 2106.04(d) II. (emphasis added).
Accordingly, the rejection is maintained.
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 1-2, 5 and 7-29 are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter (a judicial exception without significantly more). Claims are eligible for patent protection under § 101 if they are in one of the four statutory categories and not directed to a judicial exception to patentability. Alice Corp. v. CLS Bank Int'l, 573 U.S. 208 (2014). Claims 1-2, 5 and 7-29, each considered as a whole and as an ordered combination, are directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more.
MPEP 2106 Step 2A – Prong 1:
The claims are directed to the abstract idea of recommending a personalized list of ingredients in a product. This is shown in the recited representative functions of the independent claim 1 — obtaining selected personal information from the user, determining an individualized set of user attributes for the user based at least in part on (i) the user’s personal information and (ii) an analysis or interpretation of one or more combinations or groupings of user inputs or user attributes derived from the user’s personal information; assigning one or more favorable correlations and one or more unfavorable correlations between (i) ingredients used in topical products and/or one or more effects or properties of the ingredients and (ii) one or more of the user attributes; obtaining determining a personalized preliminary avoid list of ingredients that the user should avoid when purchasing skincare products by referencing the assigned user attributes to the unfavorable correlations; and determining at least one cross reactor to at least one ingredient included within the personalized preliminary ingredient avoid list, wherein the at least one cross reactor includes an ingredient with a chemical structure similar to the at least one ingredient included within the personalized preliminary ingredient avoid list; determining an ingredient to conditionally avoid from the at least one ingredient included within the personalized preliminary ingredient avoid list, the ingredient to conditionally avoid corresponding to an ingredient that meets a specific condition related to a product attribute of a skincare product, creating a personalized avoid list of ingredients by adding the determined at least one cross reactor to the personalized preliminary ingredient avoid list and labeling the ingredient to conditionally avoid in addition to the related product attribute: generating a personalized recommended or okay to use list of ingredients that the user should consider when purchasing skincare products by referencing the assigned user attributes to the favorable correlations; and communicating the personalized avoid list and the personalized recommended or okay to use list.
The claims are directed to the abstract idea of recommending a personalized list of ingredients in a product. This is shown in the recited representative functions of the independent claim 5 — (a) receiving information about a user, wherein the information comprises (i) genetic data of the user, (ii) allergy information, (iii) user medical history, current medical diagnoses, prescriptions, and/or other information or data received from a data source; (iv) user responses to a health and profile survey, and (v) user inputs corresponding to one or more ingredients to avoid, (b) generating one or more user attributes based on (i) the information about the user and/or (ii) one or more inferences or other user attributes derivable from the information about the user; (c) correlating the one or more user attributes to one or more ingredient effects associated with one or more reference ingredients; and (d) using the correlations between the one or more user attributes and the one or more ingredient effects to generate a preliminary ingredient avoid list; (e) generating an ingredient avoid list by adding one or more cross reactors to the preliminary ingredient avoid list, wherein the one or more cross reactors comprise ingredients with a chemical structure similar to that of one or more ingredients in the preliminary ingredient avoid list; and (g) determining an ingredient to conditionally avoid from the ingredient avoid list, the ingredient to conditionally avoid corresponding to an ingredient that meets a specific condition related to a product attribute.
The limitations, as drafted and detailed above, falls within the “Certain Methods of Organizing Human Activity” grouping of abstract ideas because the limitations above are setting forth non-technical particulars of a commercial interactions (i.e., commercial interactions (including agreements in the form of contracts; sales activities or behaviors; business relations); managing personal behavior or relationships or interactions between people). Additionally, a human being could mentally or use pen and paper to perform the above process steps including determining an ingredient to conditionally avoid, determining a cross reactor to at least one ingredient included with the personalized preliminary ingredient avoid list (steps of observation and evaluation).
MPEP 2106 Step 2A – Prong 2:
This judicial exception is not integrated into a practical application because there are no meaningful limitations that transform the exception into a patent eligible application. The elements merely serve to provide a general link to a technological environment (e.g., computers and the Internet) in which to carry out the judicial exception ("host processor"— recited at a high level of generality). Although they have and execute instructions to perform the abstract idea itself (e.g., modules, program code, etc. to automate the abstract idea), this also does not serve to integrate the abstract idea into a practical application as it merely amounts to instructions to "apply it." Aside from such instructions to implement the abstract idea, they are solely used for generic computer operations (e.g., obtaining, determining, assigning, creating, generating, and transmitting data).
The claims only manipulate abstract data elements into another form. They do not set forth improvements to another technological field or the functioning of the computer itself and instead use computer elements as tools to improve the functioning of the abstract idea identified above. Looking at the additional limitations and abstract idea as an ordered combination and as a whole adds nothing that is not already present when looking at the elements taken individually. There is no indication that the combination of elements improves the functioning of a computer or improves any other technology. Rather than any meaningful limits, their collective functions merely provide generic computer implementation of the abstract idea identified in Prong One. None of the additional elements recited "offers a meaningful limitation beyond generally linking 'the use of the [method] to a particular technological environment,' that is, implementation via computers." Alice Corp., slip op. at 16 (citing Bilski v. Kappos, 561 U.S. 610, 611 (U.S. 2010)).
At the levels of abstraction described above, the claims do not readily lend themselves to a finding that they are directed to a nonabstract idea. Therefore, the analysis proceeds to step 2B. See BASCOM Global Internet v. AT&T Mobility LLC, 827 F.3d 1341, 1349 (Fed. Cir. 2016) ("The Enfish claims, understood in light of their specific limitations, were unambiguously directed to an improvement in computer capabilities. Here, in contrast, the claims and their specific limitations do not readily lend themselves to a step-one finding that they are directed to a nonabstract idea. We therefore defer our consideration of the specific claim limitations’ narrowing effect for step two.") (citations omitted).
MPEP 2106 Step 2B:
The claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception for the same reasons as presented in Step 2A Prong 2. Moreover, the additional elements recited are known and conventional generic computing elements ("host processor”—see Specification ¶¶ 0131 describing these variously as standard examples of the state of the art, and 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 the statutory disclosure requirements).
The Federal Circuit has recognized that "an invocation of already-available computers that are not themselves plausibly asserted to be an advance, for use in carrying out improved mathematical calculations, amounts to a recitation of what is 'well-understood, routine, [and] conventional.'" SAP Am., Inc. v. InvestPic, LLC, 890 F.3d 1016, 1023 (Fed. Cir. 2018) (alteration in original) (citing Mayo v. Prometheus, 566 U.S. 66, 73 (2012)). Apart from the instructions to implement the abstract idea, they only serve to perform well-understood functions (e.g., inputting, receiving, storing, retrieving, transmitting, and displaying data—see Specification above as well as Alice Corp.; Intellectual Ventures I LLC v. Symantec Corp., 838 F.3d 1307 (Fed. Cir. 2016); and Versata Dev. Group, Inc. v. SAP Am., Inc., 793 F.3d 1306, 1334 (Fed. Cir. 2015) covering the well-known nature of these computer functions).
Looking at the limitations as an ordered combination adds nothing that is not already present when looking at the elements taken individually. There is no indication that the combination of elements improves the functioning of a computer or improves any other technology. Their collective functions merely provide conventional computer implementation. The claims at no point go beyond merely "organizing [existing] information into a new form." Digitech Image Tech's v. Electronics for Imaging, 758 F.3d 1344, 1351 (2014). "The use and arrangement of conventional and generic computer components recited in the claims—such as a database, user terminal, and server— do not transform the claim, as a whole, into 'significantly more' than a claim to the abstract idea itself. We have repeatedly held that such invocations of computers and networks that are not even arguably inventive are insufficient to pass the test of an inventive concept in the application of an abstract idea." Credit Acceptance Corp. v. Westlake Services, 859 F.3d 1044, 1056 (Fed. Cir. 2017) (citations and quotation marks omitted).
Dependent Claims Step 2A:
The limitations of the dependent claims merely set forth further refinements of the abstract idea identified at step 2A—Prong One, without changing the analysis already presented. Additionally, for the same reasons as above, the limitations fail to integrate the abstract idea into a practical application because they use the same general technological environment and instructions to implement the abstract idea as the independent claims identified at step 2A—Prong Two.
Dependent Claims Step 2B:
The dependent claims merely use the same general technological environment and instructions to implement the abstract idea. These do not amount to significantly more for the same reasons they fail to integrate the abstract idea into a practical application. Moreover, the Specification also indicates this is the routine use of known components for the same reasons presented with respect to the elements in the independent claims above. Accordingly, they are not directed to significantly more than the exception itself, and are not eligible subject matter under § 101.
The analysis above applies to all statutory categories of invention.
Allowable Subject Matter
Claims 1-2, 5 and 7-26 remain allowable if rewritten or amended to overcome the rejection(s) under 35 U.S.C. 101, set forth in this Office action.
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.
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/MILA AIRAPETIAN/Primary Examiner, Art Unit 3688