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 .
Status of Claims
Claims 2 remains cancelled.
Claims 1, 3, 12 and 15have been amended.
Claims 16 – 20 are newly added.
Claims 1, 3 – 20 are pending.
Claim Objections
Claim 16 is objected to because of the following informalities: Claims 16 has been newly added, however claim 16 as presented shows amendments by means of strikethrough and underlining as if claim 16 was an amended claim that was presented previously and not a newly added claim. Please present claim as newly added without edits denoting an amended claim. Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 16 – 20 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claims 16, 18 and 20 recite the limitation of “a second input emotion vector comprising values relating to a probability of different emotional states corresponding to the gain emotion descriptor of a game,”. The Examiner notes that the claims do not set forth or define what a “gain emotional descriptor” actually entails. The Examiner looks to the specification for a definition and/or description of the term and how it may be used in reference to the claims and the Examiner notes that the only reference in the specification is paragraph 0044 which states “Hence for example a trained machine learning system may receive as input one or more aspects of the user’s current emotional state (for example an input emotion vector comprising values relating to the probability of different emotional states, or alternatively or in addition just a flag for a particular emotion) and one or more aspects of the gain emotion descriptor (again for example an input emotion vector comprising values relating to the probability of different emotional states, or alternatively or in addition just a flag for a particular emotion)…” The Examiner notes that this is the only reference in the entire specification to this term and within that singular reference, the specification does not clearly define or explain what the “gain emotional descriptor” is or how it functionally relates or is used within the trained machine learning system. Clarification is needed as the metes and bounds of the claims cannot be adequately determined. Dependent claims 17 and 19, are rejected for similar reasoning as they depend on the claim, claims 15 and 18.
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 therefore, subject to the conditions and requirements of this title.
This subject matter eligibility analysis follows the latest guidance for Patent Subject Matter Eligibility Guidance.
Claims 1 and 3-20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter.
Step 1:
Claims 1, 3-11, 16, 17 are drawn to a system.
Claims 12 – 14, 18, 19 are drawn to a method.
Claims 15, 20 are drawn to a computer readable medium.
Thus, initially, under Step 1 of the analysis, it is noted that the claims are directed towards eligible categories of subject matter.
Step 2A:
Prong 1: Does the Claim recite an Abstract idea, Law of Nature, or Natural Phenomenon?
Claims 1, 3 – 11, 16 and 17 are exemplary because they require substantially the same operative limitations of the remaining claims (reproduced below.) Examiner has underlined the claim limitations which recite the abstract idea, discussed in detail in the paragraphs that follow.
1. (Currently Amended) A game selection system, comprising:
an emotion processor configured to obtain a current emotional state of a user of an entertainment device based on:
an indication of mood from a psychometric or behavioral test embedded within a game or other app executed by the user on the entertainment device within a predetermined prior period, wherein the psychometric or behavioral test comprises:
presenting, by the game or app through a display device connected to the entertainment device, game or app related content options to the user,
evaluating in-game choices made by the user comprising one or more of a choice between a peaceful or violent option, a response to one or more dialogue trees, or a selection of a character class, wherein a selection of each of the in-game user choices being indicative of a different emotional state, and
generating the indication of mood based on the selection of each of the in- game user choices made by the user among the presented game or app related content options within the predetermined prior period;
a descriptor processor configured to obtain one or more emotion descriptors associated with a plurality of games;
an evaluation processor configured to predict an emotion outcome for the user for each quest, level, or playing mode of the game of the plurality of games based upon the current emotional state of the user and the one or more emotion descriptors associated with each game of the plurality of games, wherein the one or more emotion descriptors assist with disambiguating an estimated emotional state of the user corresponding to the predicted emotion outcome; and
a selection processor configured to automatically launch a first game of the plurality of games on the entertainment device by automatically launching a specific quest or level within the first game in response to determining that the emotion outcome for the first game meets at least a first predetermined criterion set by a developer of the first game.
The claims recite italicized limitations that fall within at least one of the groupings of abstract ideas enumerated in the 2019 PEG, namely, Mental Processes and Certain Methods of Organizing Human Activity
More specifically, under this grouping, the italicized limitations represent managing interactions between people. For example, the italicized limitations are directed towards the selection of games responsive to a user’s emotional state based upon the actions of a player within the game. This falls under the grouping of concepts performed in the human mind (including an observation, evaluation, judgment, opinion)
Prong 2: Does the Claim recite additional elements that integrate the exception into a practical application of the exception?
Although the claims recite additional limitations, these limitations do not integrate the exception into a practical application of the exception. For example, the claims require additional limitations as follow, (emphasis added): processors, interfaces, input/entertainment devices and/or displays/graphical user interfaces
These additional limitations do not represent an improvement to the functioning of a computer, or to any other technology or technical field, (MPEP 2106.05(a)). Nor do they apply the exception using a particular machine, (MPEP 2106.05(b)). Furthermore, they do not effect a transformation. (MPEP 2106.05(c)). Rather, these additional limitations amount to an instruction to “apply” the judicial exception using a computer as a tool to perform the abstract idea. Therefore, since the additional limitations, individually or in combination, are indistinguishable from a computer used as a tool to perform the abstract idea, the analysis continues to Step 2B, below.
Step 2B:
Under Step 2B, the claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception because they amount to conventional and routine computer implementation and mere instructions for implementing the abstract idea on generic computing devices.
For example, the claimed invention recites additional elements facilitating implementation of the abstract idea. Applicant has claimed processors, interfaces, input/entertainment devices and/or displays/graphical user interfaces. However, all of these elements viewed individually and as a whole, are indistinguishable from conventional computing elements known in the art. Therefore, the additional elements fail to supply additional elements that yield significantly more than the underlying abstract idea.
As the Alice court cautioned, citing Flook, patent eligibility cannot depend simply on the draftsman’s art. Here, amending the claims with generic computing elements does not (in this Examiner’s opinion), confer eligibility.
Regarding the Berkheimer decision, Hutchinson-Kay (US 2008/0039207) establishes that these additional elements are generic:
[0017] The Figures illustrate examples of a system, a method and a computer program product in accordance with the invention. The system components are implemented by means of computer technology comprising data processors, memory means, data communications interfaces, control programs, input/output interfaces etc. in a per se well known manner. Different functions and features that are specific for the present invention are preferably realized by means of specific combinations and configurations of hardware components and/or computer program code executed on data processing means.
Regarding the Berkheimer decision, Applicant’s specification establishes that these additional elements are generic:
[0013] Referring now to the drawings, wherein like reference numerals designate identical or corresponding parts throughout the several views, Figure 1 shows an entertainment system 10, for example a computer or console such as the Sony ® PlayStation 5 ® (PS5), configurable as game launching system (and/or equally a game selection system) in accordance with embodiments of the present description.
Therefore, these elements fail to supply additional elements that yield significantly more than the underlying abstract idea. Thus, taken alone, the additional elements do not amount to significantly more than the above-identified judicial exception (the abstract idea).
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.
Moreover, the claims do not recite improvements to another technology or technical field. Nor, do the claims improve the functioning of the underlying computer itself -- they merely recite generic computing elements. Furthermore, they do not effect a transformation of a particular article to a different state or thing: the underlying computing elements remain the same.
Concerning preemption, the Federal Circuit has said in Ariosa Diagnostics, Inc., V. Sequenom, Inc., (Fed Cir. June 12, 2015):
The Supreme Court has made clear that the principle of preemption is the basis for the judicial exceptions to patentability. Alice, 134 S. Ct at 2354 (“We have described the concern that drives this exclusionary principal as one of pre-emption”). For this reason, questions on preemption are inherent in and resolved by the § 101 analysis. The concern is that “patent law not inhibit further discovery by improperly tying up the future use of these building blocks of human ingenuity.” Id. (internal quotations omitted). In other words, patent claims should not prevent the use of the basic building blocks of technology—abstract ideas, naturally occurring phenomena, and natural laws. While preemption may signal patent ineligible subject matter, the absence of complete preemption does not demonstrate patent eligibility. In this case, Sequenom’s attempt to limit the breadth of the claims by showing alternative uses of cffDNA outside of the scope of the claims does not change the conclusion that the claims are directed to patent ineligible subject matter. Where a patent’s claims are deemed only to disclose patent ineligible subject matter under the Mayo framework, as they are in this case, preemption concerns are fully addressed and made moot. (Emphasis added.)
For these reasons, it appears that the claims are not patent-eligible under 35 USC §101.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim(s) 1, 3 -15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Beisel et al (US 11,373,446) in view of Mostefai et al “A generic and efficient emotion-driven approach toward personalized assessment and adaptation in serious games” (2019), in view of Chung et al (US 2012/0143693)
As per claim 1, Beisel discloses:
an emotion processor configured to obtain a current emotional state of a user of an entertainment devices based on ; ( Beisel discloses at least a camera that is configured to capture the emotional state of a user and the device analyzes the captured images to determine the emotional state of the user) ( Beisel 15:34 – 51)
a descriptor processor configured to obtain one or more emotion descriptors associated with a plurality of games; ( Beisel discloses intended emotional states (I.e. emotional descriptors) associated with one or more contents. ( Beisel 16:8 – 13). Beisel further discloses that the content may be game that the user may interact with ( Beisel 9: 38 – 59, 15:36 – 46),wherein the content may be different types of content ( Beisel 10:8 – 14)).
an evaluation processor configured to predict an emotion outcome for the user for each of the plurality of games, based upon the current emotional state of the user and the one or more emotion descriptors associated with each game of the plurality of games and ( Beisel discloses the use of machine learning models to predict that a user will end up displaying a targeted emotion by utilizing a emotion profile that indicates the types of content that causes certain emotions in a user or groups of users ( Beisel 13:24 – 31), wherein the content at that is selected for the user is based upon how more or less likely the content will cause the user to display a targeted emotion based upon the users current emotional state and the emotional descriptor of the upcoming content) ( Beisel 13:31 – 53)
Beisel fails to specifically disclose:
based on one or more of:
an indication of mood from a psychometric or behavioral test embedded within a game or other app executed by the user on the entertainment device within a predetermined prior period; wherein the psychometric or behavioral test comprises:
presenting, by the game or app through a display device connected to the entertainment device, game or app related content options to the user,
evaluating in-game choices made by the user comprising one or more of a choice between a peaceful or violent option, a response to one or more dialogue trees, or a selection of a character class, where a selection of each of the in-game user choices being indicative of a different emotional state, and
generating the indication of mood based on the selection of each of the in-game user choices made by the user among the presented game or app related content options within the predetermined prior period;
…quest, level or playing mode of the game… wherein one or more emotion descriptors assist with disambiguating an estimated emotional stat of the user corresponding to the predicted emotion outcome; and
a selection processor configured to automatically launch a first game of the plurality of the games on the entertainment device by automatically launching a specific quest or level within the first game in response to determining that the emotion outcome for the first game meets at least a first predetermined criterion set by a developer of the first game.
In a similar field of endeavor, Mostefai teaches the monitoring of a user’s emotion in response to actions taken withing the game wherein the actions may be actions that are a tendency to move in an antagonistic way (i.e. violent vs peaceful actions) that may indicate a “frustration” emotional state (Mostefai 4.3.1, Table 1) or revenge actions that indicate an emotional state of “anger” (Mostefai 4.3.2, Table 2 , 4.3.3). Mostefai further teaches that in response to a user’s emotional state the system may choose game levels within the same game to further influence the emotional state of the user to a desired emotional state that is set by the designer of the game. “Managing game events to influence the current player's emotional state (lines 6 to 12): when an adaptation is necessary, the game calls event adaptation() a procedure that manage game events to influence the player's emotional state. This procedure may be defined by a game designer for a specific game. By regarding the transition matrices and taking into account the current emotional state, during gameplay, this procedure selects next events which can evoke positive emotion. Hence, it must be able to do smart management of next events (the upcoming events and their effects may be regulated in various ways) related to the current goal. To increase a positive emotions, this procedure orders the game mechanic to select and generate events that advance the player's progress towards achieving the current goal. So when the status of a goal is advanced, the next player's emotional state is felt as positive emotion. To avoid a negative emotion, this procedure orders the game mechanic to select and generate events that have no negative impact on the current goal. So when a goal is not at risk, the next player's emotional state remains as positive emotion. The emotion-driven adaptation algorithm will be performed at each significant time interval. Therefore, if the current goal is not achieved and the number of positive emotions is less than the number of negative emotions, then this algorithm will adapt next game events to induce positive emotions or to reduce negative ones.” (Mostefai 4.4.3).
It would be obvious to one of ordinary skill in the art, at the time of filing, to modify Beisel in view of Mostefai to use a known technique to modify similar systems by means of selecting new levels of a game in response to a players detected emotional, level that is determined by in game actions, when compared to the desired emotional level set by a game designer. This would be beneficial as a designer can encourage longer gameplay of the game by helping the player maintain a particular emotion level that is more conducive to gaming.
In a similar field of endeavor, Chung teaches the monitoring of a user’s activities, analyzing them to determine the users emotional context (i.e. behavioral test) and selecting advertisements (i.e. content) to be delivered and presented to the user based upon the user’s emotion level matching a criteria of emotion set by the advertiser that is associated with the advertisement to be selected and presented to the user (Chung 0005 – 0006, 0014, 0017, 0018, 0027, 0028, 0030 - 0032). Chung further teaches that the interactions that are monitored are interactions associated with app content such as news article selections or webpage selections etc. (Chung 0036 – 0041)
It would be obvious to one of ordinary skill in the art, at the time of filing, to modify Beisel in view of Chung to provide a means to provide content such as game that are executed using a known technique by analyzing a user’s interactions with content to test or determine a user’s emotional state and provided them with content that matches that user’s emotional state. In this way a user can be provided with tailored content that they are more likely to enjoy engaging with.
As per claim 3,
in which: the emotion processor is further configured to estimate the current emotional state of the user based upon one or more of: i. one or more physiological measurements of the user; ii. one or more behaviors of the user; iii. body language of the user; iv. one or more facial expressions of the user; v. one or more expressions spoken by the user; and vi. use by the user of a user input device relative to a baseline use. ( Beisel discloses estimating current emotional level based upon at least facial expressions and body language) ( Beisel 10:15 – 48)
As per claim 4, in which: the one or more emotion descriptors for each game of the plurality of games are associated with one or more of: i. the game; ii. respective quests or levels of the game; and iii. respective playing modes of the game. (Beisel discloses intended emotional states (I.e. emotional descriptors) associated with one or more contents. ( Beisel 16:8 – 13). Beisel further discloses that the content may be game that the user may interact with ( Beisel 9: 38 – 59, 15:36 – 46),wherein the content may be different types of content ( Beisel 10:8 – 14)).
As per claim 5, in which: the descriptor processor further configured to retrieve the one or more emotion descriptors associated with the plurality of games in response to determining that the plurality of games are currently accessible by the user. (Combination of Beisel in view of Chung, Beisel discloses intended emotional states (I.e. emotional descriptors) associated with one or more contents. ( Beisel 16:8 – 13). Beisel further discloses that the content may be game that the user may interact with ( Beisel 9: 38 – 59, 15:36 – 46),wherein the content may be different types of content that are accessible to the user ( Beisel 10:8 – 14)). Chung teaches the retrieving of emotion tags that are associated with a plurality of different content or advertisements that are accessible to the user upon presentation) (Chung Fig 2, 0005 – 0006, 0014, 0017, 0018, 0027, 0028, 0030 - 0032).
As per claim 6, in which: the evaluation processor is configured to predict emotion outcome for each game of the plurality of games based on a previously determined correlation between at least a first aspect of an emotion descriptor, at least a first aspect of the obtained current emotional state of the user, and a corresponding emotion outcome. ( Beisel discloses the use of machine learning models to predict that a user will end up displaying a targeted emotion by utilizing a emotion profile that indicates the types of content that causes certain emotions in a user or groups of users ( Beisel 13:24 – 31), wherein the content at that is selected for the user is based upon how more or less likely the content will cause the user to display a targeted emotion based upon the users current emotional state and the emotional descriptor of the upcoming content ( Beisel 13:31 – 53). Beisel discloses the utilization of historical user data that indicates how significant the transition (i.e. a correlation) from one emotion to a target emotion may be based on the current emotional state ( Beisel 17:5 – 8).
As per claim 7, wherein the previously determined correlation is based upon emotion data from a corpus of previous players. ( Beisel discloses that the correlation may be based upon a plurality of emotion profiles (i.e. corpus of players) ( Beisel 7:31-37, 17:5-8)
As per claim 8, in which: the predetermined criterion is one or more of: i. the predicted emotional outcome matching a desired emotional outcome indicated by the user; ii. the predicted emotional outcome being in a predetermined group of emotional outcomes that includes a desired emotional outcome indicated by the user; and iii. the predicted emotional outcome being in a predetermined group of emotional outcomes selected as being positive. ( Beisel discloses the system criterion that is based upon being more likely (i.e. positive) to cause desired emotional state ( Beisel 13:40 – 44)
As per claim 9, in which: the predetermined criterion is one or more of: i. the predicted emotional outcome matching a desired emotional outcome indicated by the game; and ii. the predicted emotional outcome being in a predetermined group of emotional outcomes that includes a desired emotional outcome indicated by the first game. ( Beisel discloses a criterion that that is determined indicated by the game wherein the game or content comprises targeted emotional states ( Beisel 13:31 – 40).
As per claim 10, in which: the selection processor is configured to select one of: a shortlist of game quests or levels currently accessible by the user; a shortlist of game quests or levels currently accessible by the user in respective play modes; and a shortlist of games currently accessible by the user. ( Beisel discloses the selection of content wherein the content may be a game that the use is interacting with( Beisel 9: 38 – 59, 15:36 – 46), wherein the content may be different types of content (i.e. different games) ( Beisel 10:8 – 14)).
As per claim 11, in which: the selection processor is configured to launch the first game in further response to determining that the first game is one of a: i. a quest or level of a game currently accessible by the user; ii. a game currently accessible by the user in a particular play mode; and iii. a game currently accessible by the user. ( Beisel discloses the launching and presentation of content wherein the content may be a game that the use is interacting with ( Beisel 9: 38 – 59, 15:36 – 46), wherein the content may be different types of content (i.e. different games) ( Beisel 10:8 – 14)).
Independent claim(s) 12 and 15 is/are obvious over Beisel and Chung based on the same analysis set forth for claim(s) 1, which are similar in claim scope.
Dependent claim(s) 13 is/are obvious over Beisel and Chung based on the same analysis set forth for claim(s) 6, which are similar in claim scope.
Dependent claim(s) 14 is/are obvious over Beisel and Chung based on the same analysis set forth for claim(s) 7, which are similar in claim scope.
Response to Arguments
Applicant’s arguments with respect to claim(s) 1, 3 - 15 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. Please see above rejection in view of Mostefai.
Regarding the rejection of the claims under 35 U.S.C. 101, the Applicant states that with regard to the claims the claims integrate any alleged exception into a practical application by providing an improvement to the functioning of an entertainment system (Remarks page 14). Applicant further states “Applicant submits that additional claim limitations further integrate the alleged "mental process" into a practical application that is significantly more than the abstract idea.” (Remarks page 14 – 15) and “Therefore, the claims do not merely automate a mental process. Rather, the claims construct a specific, technical feedback loop that directly improves the operational efficiency of a digital gaming machine and perceived user experience curated by the digital gaming machine by mitigating cognitive load and programmatic latency in application or game selection, amounting to a practical application that is significantly more than the underlying alleged abstract idea.” The Examiner notes that making a process faster or more efficient and/or making the process “easier” (i.e. lessening cognitive load) fails to provide support for an improvement to the functioning of computer or technology. Examiner notes that lessening the cognitive load is indicative to improving how information is understood or processed by a user rather than an improvement to the functioning of a computer or technological field. The allegation that it improves the operational efficiency…and programmatic latency in application or game selection...”is also not persuasive as the Applicant does not point out any concrete ways that that the operational efficiency of the functioning of the computer or technology is actually improved other than an improvement to the user experience with selecting a game. The Examiner maintains the rejection.
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.
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/RAW/ Examiner, Art Unit 3715
9/1/2026
/KANG HU/ Supervisory Patent Examiner, Art Unit 3715
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