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, 3 to 12, 14 to 19, and 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 drawn to a a method, a device, and a computer-readable medium, and so are statutory classes under 101. The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because of the following reasons. Independent Claim 1 is representative and is reproduced below; the abstract idea is underlined and the structural limitations are not. The dependent claims have no more structure than the independent claim and fail 101 for similar reasons.
An in-game interaction method, comprising: (processing data according to the rules of a game)
obtaining, by a terminal, position coordinates of a first controlled virtual object in a virtual scene, in response to a control instruction of a first user for a first virtual skill of the first controlled virtual object; (accepting input from a player, processing data according to the rules of a game)
obtaining, by the terminal, a second controlled virtual object within a preset range in accordance with the position coordinates as reference, wherein the second controlled virtual object is controlled by a second user; (accepting input from a player, processing data according to the rules of a game)
determining, by the terminal, whether initial appearance information of the second controlled virtual object is consistent with current appearance information; and (processing data according to the rules of a game)
displaying prompt information that the second controlled virtual object is a camouflaged object, in a graphical user interface of the first user, in response to determining that the initial appearance information is inconsistent with the current appearance information, wherein the prompt information comprises first prompt information, and wherein the method further comprises: (accepting input from a player, processing data according to the rules of a game)
obtaining current appearance information of the first controlled virtual object; (accepting input from a player, processing data according to the rules of a game)
determining whether the current appearance information of the first controlled virtual object is consistent with the current appearance information of the second controlled virtual object; and (accepting input from a player, processing data according to the rules of a game)
displaying the first prompt information for the second controlled virtual object, in the graphical user interface of the first user, in response to determining that the current appearance information of the first controlled virtual object is consistent with the current appearance information of the second controlled virtual object. (accepting input from a player, processing data according to the rules of a game, displaying the results to the player)
The claims taken together or individually do not represent an improvement to the abstract idea in an ordered combination. It is unclear what type of virtual objects are being manipulated in the claims—characters, sports implements, weapons, vehicles, equipment, etc. It is unclear how the different game objects interact with each other. Are the virtual game objects friends, foes, bystanders, etc.? Do the virtual objects work together, oppose each other, or merely coexist? It is unclear what type of game is being played—sports games, role-playing games, board games, action games, first-person shooter games, etc. The second and third clauses of Claim 1 only vaguely accepts input; it is not clear what type input is accepted, what its format is, or what type of input device is used. What is the current appearance information pertaining to the virtual object—size, shape, color, location, or other qualities? What is the displayed prompt information—instructions to move the virtual object, instructions to carry out an action via the virtual object, identification, score, location, virtual object attributes, etc.? The claims do not cite the results of the game play to the player via any specific type of output device. It is unclear how the virtual game object is camouflaged—via a camouflage pattern, via invisibility, via cover or concealment behind another object, virtual “jamming” of radar or sonar, etc. The claims as presently written are little more than manipulating data according to the rules of a game in a computer’s memory with little to no tangible result.
The claims do not cite specific processor or memory structures for processing data in memory according to the rules of a game. The claims do not cite specific input structures such as touchscreens, touchpads, directional pads, joysticks, trackballs, keyboards, mice, cameras, or microphones. The claims do not cite specific output structures such as screens, displays, or speakers. The claims do not represent an improvement in the functioning of a computing device or gaming device since they do not represent an improvement in processor speed, memory management, random number generation, thermal management, ergonomics, network speed and management (such as load balancing or rerouting of packets), bus speed and management, authentication, encryption, graphics rendering, or reduced instruction sets for carrying out complex operations (such as RISC processors). Applying an abstract idea to a computer is not patent-eligible (Alice, http://www.supremecourt.gov/opinions/13pdf/13-298_7lh8.pdf, page 12). Electronic recordkeeping, obtaining data, adjusting balances, issuing automated instructions, creating and maintaining accounts are typical computer functions (Alice, page 15). Requiring the use of a computer to implement the claim does not make it patent-eligible (pages 14 & 15). Communications controllers, data storage units, and data processing systems are typical computer structures (Alice, page 16). Calculation, storage, and transmission are basic computer functions (Alice, page 16). Claims cannot simply be a draftsman’s art (Alice, pages 14 & 16).
Cloud Satchel quoting Bancorp: “To salvage an otherwise patent-ineligible process, a computer must be integral to the claimed invention, facilitating the process in a way that a person making calculations or computations could not.” In Bancorp, the independent claims did not require a computer (at 1431). In Bancorp, the system and method claims were equivalent for patentability under 101 (at 1432). Bancorp’s method claims did not require a computer and were not 101-compliant (at 1433). A computer must be integral to the claimed invention (Bancorp at 1433). A computer used in the claim only for its most basic functions does not make the claim 101-eligible (Bancorp at 1433). Bancorp’s use of computers to track, reconcile, and administer insurance policies only used a computer’s most basic functions, adding nothing to 101 compliance (1434). Limiting the claims to a particular field of use, such as the insurance market, does not fail to preempt the abstract idea (Bancorp at 1434 & 1435). In Amdocs (113 USPQ2d 1565) at 1571, the fact that the claims cannot be carried out by a human being alone does not mean that they are not an abstract idea under 101 (citing Alice, 134 S.Ct. at 2359-60 and Digitech, 758 F.3d at 1351).
The examiner points the applicants to Claim 33 of U.S. patent 5,970,479 A which was the representative claim in the Alice decision. These claim limitations are carried out on presumably a general purpose computer although such is not explicitly cited. The claims are certainly not carried out by specific hardware.
A method of exchanging obligations as between parties, each party holding a credit record and a debit record with an exchange institution, the credit records and debit records for exchange of predetermined obligations, the method comprising the steps of:
(a) creating a shadow credit record and a shadow debit record for each stakeholder party to be held independently by a supervisory institution from the exchange institutions;
(b) obtaining from each exchange institution a start-of-day balance for each shadow credit record and shadow debit record;
(c) for every transaction resulting in an exchange obligation, the supervisory institution adjusting each respective party’s shadow credit record or shadow debit record, allowing only these transactions that do not result in the value of the shadow debit record being less than the value of the shadow credit record at any time, each said adjustment taking place in chronological order, and
(d) at the end-of-day, the supervisory institution instructing on[e] of the exchange institutions to exchange credits or debits to the credit record and debit record of the respective parties in accordance with the adjustments of the said permitted transactions, the credits and debits being irrevocable, time invariant obligations placed on the exchange institutions.
The examiner points the applicants to representative Claim 19 of U.S. patent 7,818,399 B1 which was at issue in the DDR Holdings case. This claim in the DDR Holdings case was 101-compliant because it improved the functioning of the computer itself, namely rendering web pages in a web browser. The claims in DDR Holdings cited what was done, and specific steps for how it was done, thus not invoking a judicial exception by preempting all possible ways of what the claim is trying to do. The claims met the second step of the Alice analysis by improving on how web page rendering transactions were carried out over a network such as the Internet, versus how such transactions had been done before.
A system useful in an outsource provider serving web pages offering commercial opportunities, the system comprising:
(a) a computer store containing data, for each of a plurality of first web pages, defining a plurality of visually perceptible elements, which visually perceptible elements correspond to the plurality of first web pages;
(i) wherein each of the first web pages belongs to one of a plurality of web page owners;
(ii) wherein each of the first web pages displays at least one active link associated with a commerce object associated with a buying opportunity of a selected one of a plurality of merchants; and
(iii) wherein the selected merchant, the outsource provider, and the owner of the first web page displaying the associated link are each third parties with respect to one other;
(b) a computer server at the outsource provider, which computer server is coupled to the computer store and programmed to:
(i) receive from the web browser of a computer user a signal indicating activation of one of the links displayed by one of the first web pages;
(ii) automatically identify as the source page the one of the first web pages on which the link has been activated;
(iii) in response to identification of the source page, automatically retrieve the stored data corresponding to the source page; and
(iv) using the data retrieved, automatically generate and transmit to the web browser a second web page that displays: (A) information associated with the commerce object associated with the link that has been activated, and (B) the plurality of visually perceptible elements visually corresponding to the source page.
The examiner finds that wagering games are all rather similar: accepting a wager, playing the game according to the rules comprising generating random outcomes according to rules, determining winning outcomes, determining how much is to be paid for a winning outcome, and paying out the winnings. This breakdown of the wagering claim language is similar to that in precedential case in re Smith (in re Smith (Fed. Cir. 2016), appeal 2015-1664, U.S. patent application 12/912,410).
Claim 1 at hand in in re Smith is as follows:
1. A method of conducting a wagering game comprising:
[a]) a dealer providing at least one deck of physical playing cards and shuffling the physical playing cards to form a random set of physical playing cards;
[b]) the dealer accepting at least one first wager from each participating player on a player game hand against a banker’s/dealer’s hand;
[c]) the dealer dealing only two cards from the random set of physical playing cards to each designated player and two cards to the banker/dealer such that the designated player and the banker/ dealer receive the same number of exactly two random physical playing cards;
[d]) the dealer examining respective hands to determine in any hand has a Natural 0 count from totaling count from cards, defined as the first two random physical playing cards in a hand being a pair of 5’s, 10’s, jacks, queens or kings;
[e]) the dealer resolving any player versus dealer wagers between each individual player hand that has a Natural 0 count and between the dealer hand and all player hands where a Natural 0 is present in the dealer hand, while the dealer exposes only a single card to the players;
[f]) as between each player and the dealer where neither hand has a Natural 0, the dealer allowing each player to elect to take a maximum of one additional card or standing pat on the initial two card player hand, while still having seen only one dealer card;
[g]) the dealer/banker remaining pat within a first certain predetermined total counts and being required to take a single hit within a second predetermined total counts, where the first total counts range does not overlap the second total counts range;
[h]) after all possible additional random physical playing cards have been dealt, the dealer comparing a value of each designated player’s hand to a final value of the banker’s/dealer’s hand wherein said value of the designated player’s hand and the banker’s/dealer’s hand is in a range of zero to nine points based on a pre-established scoring system wherein aces count as one point, tens and face cards count as zero points and all other cards count as their face value and wherein a two-digit hand total is deemed to have a value corresponding to the one’s digit of the two-digit total;
[i]) the dealer resolving the wagers based on whether the designated player’s hand or the banker’s/dealer’s hand is nearest to a value of 0.
Similarly to the present claims, the claim at hand in in re Smith accepted wagers from players (steps a & b), played the game according to the rules of the game comprising generating random outcomes (steps c to g), determining what the winning conditions are and how much to pay out (step h), and making the winning payouts (step i). The card game of in re Smith would be identical played in a card and table format or in an electronic format.
The examiner points the applicants to the representative claim at hand in non-precedential Planet Bingo. The hardware limitations of the CPU, memory, I/O terminal, and printer are only cited in clause (a). The rest of the claim is functional claim language describing a bingo game that would occur identically in paper ticket format or computerized format with the play of the game and the game results being identical in either format. The court held that the claims in Planet Bingo were ineligible under 101.
A method for playing a game of Bingo which comprises the steps of:
(a) providing a system for managing a game of Bingo which comprises: a computer with a central processing unit (CPU) and with a memory and with a printer connected to the CPU; an input and output terminal connected to the CPU and memory of the computer; and a program in the computer enabling:
(i) input of at least two sets of Bingo numbers which are preselected by a player for repetitive play in games of Bingo over a period of time;
(ii) storage of the sets of Bingo numbers which are preselected by the player as a group in the memory of the computer;
(iii) assignment of a player identifier unique to the player for the group having the sets of Bingo numbers which are preselected by the player wherein the player identifier is assigned to the group for multiple sessions of Bingo;
(iv) retrieval of the group using the player identifier;
(v) selection from the group by the player of at least one of the sets of Bingo numbers preselected by the player and stored in the memory of the computer as the group for play in a selected game of Bingo in a specific session of Bingo wherein a number of sets of Bingo numbers selected for play in the selected game of Bingo is less than a total number of sets of Bingo numbers in the group;
(vi) addition by the computer of a control number for the set of Bingo numbers which is selected by the player for play in the selected game of Bingo;
(vii) output of a receipt with the control number, the set of Bingo numbers which is selected for play in the selected game of Bingo, a price for the set of Bingo numbers which is selected for play in the selected game of Bingo, a date of the selected game of Bingo and optionally a computer identification number; and
(viii) output for verification of a winning set of Bingo numbers by means of the control number which is input into the computer by a manager of the game of Bingo;
(b) playing the game of Bingo using the set of Bingo numbers wherein the player signals a Bingo to indicate the set of Bingo numbers which is selected for play in the selected game of Bingo is the winning set of Bingo numbers; and
(c) verifying the winning set of Bingo numbers with the control number with the program.
The Bascom decision is relevant to the present claims (U.S. CAFC, 2015-1763, decided June 27th, 2016). The Bascom decision required that the ordered limitations of the claims taken together add something "significantly more" to the abstract idea even though the individual limitations were known in the prior art. The claim at hand in Bascom was found to comply with 101 in light of Alice. Page 15 of Bascom:
“However, we disagree with the district court’s analysis of the ordered combination of limitations. In light of Mayo and Alice, it is of course now standard for a § 101 inquiry to consider whether various claim elements simply recite “well-understood, routine, conventional activit[ies].” Alice, 134 S. Ct. at 2359. The district court’s analysis in this case, however, looks similar to an obviousness analysis under 35 U.S.C. § 103, except lacking an explanation of a reason to combine the limitations as claimed. The inventive concept inquiry requires more than recognizing that each claim element, by itself, was known in the art. As is the case here, an inventive concept can be found in the non-conventional and non-generic arrangement of known, conventional pieces.” Page 20 of Bascom: “While the claims of the ’606 patent are directed to the abstract idea of filtering content, BASCOM has adequately alleged that the claims pass step two of Alice’s two-part framework. BASCOM has alleged that an inventive concept can be found in the ordered combination of claim limitations that transform the abstract idea of filtering content into a particular, practical application of that abstract idea. We find nothing on this record that refutes those allegations as a matter of law or justifies dismissal under Rule 12(b)(6). We therefore vacate the district court’s order granting AT&T’s motion to dismiss under FRCP 12(b)(6) and remand so that the case may proceed.”
The McRO decision (U.S. CAFC, 2015-1080 to 2015-1101, decided Sept. 13th, 2016) is relevant to the present claims. The McRO decision stated that an ordered combination of claim limitations can meet the requirements of 101 in light of the Alice decision by improving over what has been already done in the prior art without preempting an abstract idea. Pages 25 and 26 of McRO: “The limitations in claim 1 prevent preemption of all processes for achieving automated lip-synchronization of 3-D characters. McRO has demonstrated that motion capture animation provides an alternative process for automatically animating lip synchronization and facial expressions. Even so, we have recognized that “the absence of complete preemption does not demonstrate patent eligibility.” Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015). The narrower concern here is whether the claimed genus of rules preempts all techniques for automating 3-D animation that rely on rules. Claim 1 requires that the rules be rendered in a specific way: as a relationship between subsequences of phonemes, timing, and the weight to which each phoneme is expressed visually at a particular timing (as represented by the morph weight set). The specific structure of the claimed rules would prevent broad preemption of all rules-based means of automating lip synchronization, unless the limits of the rules themselves are broad enough to cover all possible approaches. There has been no showing that any rules-based lip synchronization process must use rules with the specifically claimed characteristics.” Page 27 of McRO: “Here, the structure of the limited rules reflects a specific implementation not demonstrated as that which “any [animator] engaged in the search for [an automation process] would likely have utilized.” Myriad, 133 S. Ct. at 2119–20 (quotation marks omitted). By incorporating the specific features of the rules as claim limitations, claim 1 is limited to a specific process for automatically animating characters using particular information and techniques and does not preempt approaches that use rules of a different structure or different techniques. See Morse, 56 U.S. at 113. When looked at as a whole, claim 1 is directed to a patentable, technological improvement over the existing, manual 3-D animation techniques. The claim uses the limited rules in a process specifically designed to achieve an improved technological result in conventional industry practice. Alice, 134 S. Ct. at 2358 (citing Diehr, 450 U.S. at 177). Claim 1 of the ’576 patent, therefore, is not directed to an abstract idea.” The claim limitations individually or taken together add nothing significantly more in an ordered combination to the abstract idea.
Response to Arguments
Applicant’s arguments with respect to claim(s) 1, 3 to 12, 14 to 19, and 21 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument. The applicants have amended around the art, but a 101 rejection still applies. The applicants remarks on pages 9 to 11 (points 1. to 5.) do not cite how the claimed advantages are tied to the claim language. These remarks are basically a statement of intended use for the claims. The examiner respectfully disagrees with the applicants as to the claims’ present condition for allowance.
Conclusion
Applicant's amendment necessitated the new 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 MATTHEW D HOEL whose telephone number is (571)272-5961. The examiner can normally be reached M-F 8:00 A.M.-4:30 P.M..
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/M.D.H/Examiner, Art Unit 3715 /DAVID L LEWIS/Supervisory Patent Examiner, Art Unit 3715