DETAILED ACTION
This Non-Final Office action is in response to Applicant’s RCE filing on 12/08/2025. Claims 1-20 are pending. The effective filing date of the claimed invention is 06/28/2022.
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 § 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 1-20 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.
Claim 1 (and similarly claim 18) line 28 and 30 recite “an exit” and “the exit.” However, prior to this in claim 1, line 8, Applicant already recited “an exit of the physical retail environment.” Accordingly, this renders the claim indefinite for lack of proper antecedent basis. Appropriate correction is required.
Claim 1 (and similarly claim 18) line 31 recites “item data” and “items identified as leaving the physical retail environment.” However, prior to this, claim 1 line 10 recites “item data” and claim 1 line 10 further recites items leaving the physical environment. This renders the claim indefinite for lack of proper antecedent basis. Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1-20 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claim 1 currently requires “correlating, based on the received digital, machine-readable item detection signals, first detections of item identification tags by a first RFID reader positioned inside the physical retail environment near an exit and second detections of the item identification tags by a second RFID reader positioned outside the physical retail environment near the exit to identify exit events for two or more items representative of item data for items identified as leaving the physical retail environment.” To be clear, referring to Fig. 5 and [0127] of Applicant’s Spec, Applicant does have support for where the retail environment has sensors and RFID readers, as now claimed. However, the language of “correlating, based on the received digital, machine-readable item detection signals, first detections of item identification tags by a first RFID. . . .” is not provided support in Applicant’s Specification. In other words, the correlation between the first and second RFID reader data, “based on the received digital, machine-readable item detection signals,” is not shown in Applicant’s disclosure. (emphasis added in underlining to show where the new matter exists. There is no support for this in Applicant’s Specification.
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 1-20 are rejected under 35 U.S.C. 101 because the claims are found to be directed to abstract idea.
Step 1 – Claims 1-20 pass step 1. Claims 1-17 relate to machine claims; claims 18-20 are process claims. Step 1 is satisfied.
Step 2A, Prong 1 – Exemplary claim 18 (and similarly claim 1) recites the abstract idea of:
A method for identifying items likely stolen from a physical retail environment in an online marketplace, the method comprising:
receiving, item data indicating the items detected by the item detection sensors/RFID readers as leaving the physical retail environment, (see e.g. MPEP 2106.04(a)(2)(III) receiving data can be done in human mind, pen/paper);
receiving more data (see e.g. MPEP 2106.04(a)(2)(III) receiving data can be done in human mind, pen/paper)
correlating, by a computer system, the first digital, machine-readable item detection signals and the digital, machine-readable second item detection signals to identify exit events of items from the retail environment (see MPEP 2106.04(a)(2)(I)(A) iv. organizing information and manipulating information through mathematical correlations, Digitech Image Techs., LLC v. Electronics for Imaging, Inc., 758 F.3d 1344, 1350, 111 USPQ2d 1717, 1721 (Fed. Cir. 2014). The patentee in Digitech claimed methods of generating first and second data by taking existing information, manipulating the data using mathematical functions, and organizing this information into a new form. The court explained that such claims were directed to an abstract idea because they described a process of organizing information through mathematical correlations, like Flook's method of calculating using a mathematical formula. 758 F.3d at 1350, 111 USPQ2d at 1721.; MPEP 2106.04(a)(2)(II)(C) citing Voter Verified correlating votes together when placed, comparing them, etc.)
receiving, from a checkout station configured to scan items during a checkout process and generate digital machine-readable signals representative of transaction data upon completion of the checkout process, the transaction data for checkout processes that have been completed at the checkout station (see e.g. MPEP 2106.04(a)(2)(III) receiving data can be done in human mind, pen/paper; see also MPEP 2106.04(a)(2)(II)(A-B));
identifying a subset of items in the item data that do not match items in the transaction data as an item shortage in the physical retail environment (see e.g. e.g. MPEP 2106.04(a)(2)(III)(A) receiving data can be done in human mind - claim to collecting and comparing known information (claim 1), which are steps that can be practically performed in the human mind, Classen Immunotherapies, Inc. v. Biogen IDEC, 659 F.3d 1057, 1067, 100 USPQ2d 1492, 1500 (Fed. Cir. 2011););
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grouping, by the computer system, items in the identified subset of two or more items into a cluster based on a determination that the grouped items have timestamps within a threshold amount of time from each other to define a theft event cluster comprising a plurality of items that have exited the physical retail environment and have timestamps within three minutes or less of each other (see e.g. IBM Corp. v. Zillow Grp., No. 2021-2350 (Fed. Cir. 10/17/2022)(to the left), decision at page 7-8 – “The district court concluded that “the ’789 Patent is directed to the abstract idea of responding to a user’s selection of a portion of a displayed map by simultaneously updating the map and a co-displayed list of items on the map.” Decision, 549 F. Supp. 3d at 1266–67. It reasoned that claim 8’s method “could be performed by hand, using a printed map and related list of items on the map, a transparent overlay, a wet-erase marker, a blank sheet of opaque paper, and a knife or scissors.” Id. at 1267. The district court explained that one could put the transparent overlay on the map, draw on it with the marker, and then block off the “unselected area” of the map and corresponding list items with the opaque paper. Id. To choose a different “selection area,” the user would erase the previous marking, remove the paper, and start over. The district court noted that “alterations to hardcopy materials were made or auditioned in this manner” long before the invention of the computer, and thus concluded that “[t]he ’789 patent merely contemplates automation using a computer.” Id. We agree that the claims here fail to “recite any assertedly inventive technology for improving computers as tools,” Interval Licensing LLC v. AOL, Inc., 896 F.3d 1335, 1344 (Fed. Cir. 2018), and are instead directed to “an abstract idea for which computers are invoked merely as a tool,” TecSec, 978 F.3d at 1293. The claims are directed to limiting and coordinating the display of information based on a user selection. IBM argues that the ’789 patent is directed to patent-eligible “specific asserted improvement[s] in computer capabilities,” specifically, “an improved [graphical user interface] for displaying, filtering, and Case: 21-2350 Document: 46 Page: 7 Filed: 10/17/2022 8 IBM v. ZILLOW GROUP, INC. interacting with geospatial data on a map and list display.” Appellant’s Br. at 39–40 (first alteration in original) (quoting CardioNet, LLC v. InfoBionic, Inc, 955 F.3d 1358, 1367 (Fed. Cir. 2020)). In particular, IBM asserts that the patent improves “the ability of users to identify and analyze relevant data in otherwise large data sets.” Id. at 40.1”);
retrieving, over a computer network from a server system hosting an online marketplace, seller listing data for the online marketplace, wherein the seller listing data comprises groups of items offered for sale in the online marketplace that are each associated with a different one of a plurality of online seller profiles (MPEP 2106.04(a)(2)(II)(B));
comparing the cluster to each of the groups of items associated with the plurality of online seller profiles to determine cluster similarity scores (MPEP 2106.04(a)(2)(I)) for each of the groups of items (see e.g. MPEP 2106.04(a)(2)(II)(C) An example of a claim reciting social activities is Voter Verified, Inc. v. Election Systems & Software, LLC, 887 F.3d 1376, 126 USPQ2d 1498 (Fed. Cir. 2018). The social activity at issue in Voter Verified was voting. The patentee claimed “[a] method for voting providing for self-verification of a ballot comprising the steps of” presenting an election ballot for voting, accepting input of the votes, storing the votes, printing out the votes, comparing the printed votes to votes stored in the computer, and determining whether the printed ballot is acceptable. 887 F.3d at 1384-85, 126 USPQ2d at 1503-04. The Federal Circuit found that the claims were directed to the abstract idea of “voting, verifying the vote, and submitting the vote for tabulation”, which is a “fundamental activity that forms the basis of our democracy” and has been performed by humans for hundreds of years. 887 F.3d at 1385-86, 126 USPQ2d at 1504-05.);
determining cluster similarity scores for each of the groups of items, wherein a cluster similarity score is generated for an online seller profile by aggregating a cluster match score, determined by a quantity of items from the unique theft event cluster offered for sale by the online seller profile, and a location score, determined by a geographic proximity of the online seller profile to the physical retail environment (see e.g. MPEP 2106.04(a)(2)(I)(A-B));
identifying, based on the cluster similarity scores, a particular group of items and a particular corresponding seller profile as having a greatest likelihood of listing the cluster of items in the online marketplace (see e.g. MPEP 2106.04(a)(2)(I)(A)); and
returning output in response to identifying the particular group of items and the particular corresponding seller profile that, when transmitted to a user computing device, causes the user computing device to display instructions to buy one or more of the items of the seller listing data based on the particular group of items as likely being stolen from the physical retail environment (see e.g. MPEP 2106.05(f)(1) Intellectual Ventures I v. Capital One Fin. Corp. - The claims were found to be directed to the abstract idea of “collecting, displaying, and manipulating data.” 850 F.3d at 1340; 121 USPQ2d at 1946.; MPEP 2106.04(a)(2)(II)(C) An example of a claim reciting managing personal behavior is Intellectual Ventures I LLC v. Capital One Bank (USA), 792 F.3d 1363, 115 USPQ2d 1636 (Fed. Cir. 2015). The patentee in this case claimed methods comprising storing user-selected pre-set limits on spending in a database, and when one of the limits is reached, communicating a notification to the user via a device. 792 F.3d. at 1367, 115 USPQ2d at 1639-40. The Federal Circuit determined that the claims were directed to the abstract idea).
When these abstract ideas are viewed alone and in ordered combination (i.e. as a whole), the examiner finds the exemplary claim 8 (and similarly claim 1) to recite abstract idea.
Step 2A, Prong 2 – Exemplary claim 1 (and similarly claim 18) does not integrate the underlying abstract idea with practical application. Claim 1 recites the following additional limitations:
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And a computer system, computer network, and user computing device to perform an action such as send notification based on the group of items. The examiner finds that these additional limitations are recited at a high level of generality and act as tools to implement the abstract idea. In particular, for the checkout station/computer system/computer network, the examiner refers to e.g. MPEP 2106.05(f), merely reciting the words “apply it” (or an equivalent) with the judicial exception, or merely including instructions to implement an abstract idea on a computer, or merely using a computer as a tool to perform an abstract idea. For the item detection sensors, see e.g. Yu v. Apple Inc., Appeal Nos. 2020-1760, 2020-1803 (Fed. Cir., Jule 11, 2021), finding sensors that act in standard manner to be directed to abstract idea. For the computer system, the examiner refers to e.g. MPEP 2106.05(f), merely reciting the words “apply it” (or an equivalent) with the judicial exception, or merely including instructions to implement an abstract idea on a computer, or merely using a computer as a tool to perform an abstract idea. For the user computing device that receives data and then performs an action, again, the examiner refers to e.g. MPEP 2106.05(f), merely reciting the words “apply it” (or an equivalent) with the judicial exception, or merely including instructions to implement an abstract idea on a computer, or merely using a computer as a tool to perform an abstract idea.
As for the use of the signals, the examiner refers to MPEP 2106.05(f)(3) citing O’Reilly v. Morse, 56 U.S. 62 (1854) (finding ineligible a claim for “the use of electromagnetism for transmitting signals at a distance”). The use of signals appears to indicate a field of use, or technological environment, in which to apply the abstract idea. When data is transmitted it is transmitted as a signal, and this has not been found to transform an otherwise ineligible claim to eligible. See MPEP 2106.05(a)(I) Examples that the courts have indicated may not be sufficient to show an improvement in computer-functionality: iv. Recording, transmitting, and archiving digital images by use of conventional or generic technology in a nascent but well-known environment, without any assertion that the invention reflects an inventive solution to any problem presented by combining a camera and a cellular telephone, TLI Communications, 823 F.3d at 611-12, 118 USPQ2d at 1747.
Claim 1 now recites where the item detection sensors (such as cameras) are found on both sides of the exit, and where RFID readers are placed on both sides of the exit point. The examiner does not find the fact that there are sensors on both sides of an exit to be an improvement to the technology. This is “apply it” and using broadly recited sensors as a tool to implement the abstract idea of receiving data, collecting data, analyzing, and the like, as shown above. See Electric Power Group.
Accordingly, when viewed alone and in ordered combination, these additional limitations are not found to integrate the abstract idea with practical application.
Step 2B – The findings under Step 2A, Prong 2 are equally applied to Step 2B. Another consideration when determining whether a claim recites significantly more than a judicial exception is whether the additional element(s) are well-understood, routine, conventional activities previously known to the industry. This consideration is only evaluated in Step 2B of the eligibility analysis. MPEP 2106.05(d). For the associated and required Berkheimer evidence, the examiner refers to MPEP 2106.05(d)(II) The courts have recognized the following computer functions as well‐understood, routine, and conventional functions when they are claimed in a merely generic manner (e.g., at a high level of generality) or as insignificant extra-solution activity. i. Receiving or transmitting data over a network, e.g., using the Internet to gather data, Symantec; buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355, 112 USPQ2d 1093, 1096 (Fed. Cir. 2014) (computer receives and sends information over a network); ii. Performing repetitive calculations, Flook, 437 U.S. at 594, 198 USPQ2d at 199 (recomputing or readjusting alarm limit values); Bancorp Services v. Sun Life, 687 F.3d 1266, 1278, 103 USPQ2d 1425, 1433 (Fed. Cir. 2012) (“The computer required by some of Bancorp’s claims is employed only for its most basic function, the performance of repetitive calculations, and as such does not impose meaningful limits on the scope of those claims.”); iv. Presenting offers and gathering statistics, OIP Techs., 788 F.3d at 1362-63, 115 USPQ2d at 1092-93.
Referring to Applicant’s originally-filed Specification, the examiner refers to
[0153] The mobile computing device 650 can communicate wirelessly through the communication interface 666, which can include digital signal processing circuitry where necessary. The communication interface 666 can provide for communications under various modes or protocols, such as GSM voice calls (Global System for Mobile communications), SMS (Short Message Service), EMS (Enhanced Messaging Service), or MMS messaging (Multimedia Messaging Service), CDMA (code division multiple access), TDMA (time division multiple access), PDC (Personal Digital Cellular), WCDMA (Wideband Code Division Multiple Access), CDMA2000, or GPRS (General Packet Radio Service), among others. Such communication can occur, for example, through the transceiver 668 using a radio-frequency. In addition, short-range communication can occur, such as using a Bluetooth, WiFi, or other such transceiver (not shown). In addition, a GPS (Global Positioning System) receiver module 670 can provide additional navigation- and location-related wireless data to the mobile computing device 650, which can be used as appropriate by applications running on the mobile computing device 650.
[0157] The term machine-readable signal refers to any signal used to provide machine instructions and/or data to a programmable processor.
See MPEP 2106.05(d)(I)(2) citing, Intellectual Ventures v. Symantec, 838 F.3d 1307, 1317; 120 USPQ2d 1353, 1359 (Fed. Cir. 2016) (“The written description is particularly useful in determining what is well-known or conventional”); Internet Patents Corp. v. Active Network, Inc., 790 F.3d 1343, 1348, 115 USPQ2d 1414, 1418 (Fed. Cir. 2015) (relying on specification’s description of additional elements as “well-known”, “common” and “conventional”); TLI Communications LLC v. AV Auto. LLC, 823 F.3d 607, 614, 118 USPQ2d 1744, 1748 (Fed. Cir. 2016) (Specification described additional elements as “either performing basic computer functions such as sending and receiving data, or performing functions ‘known’ in the art.”).
As far as the signal sending, receiving, and generating, the examiner notes that the specification appears to provide very broad support for such “signals” as claimed and when refers to signals, it refers to a generic, “The term machine-readable signal refers to any signal used to provide machine instructions and/or data to a programmable processor.” This weighs against a finding of significantly more.
When these additional limitations are viewed alone and in ordered combination (i.e. as a whole) the examiner finds that claim 18 (and similarly claim 1) are directed to abstract idea.
Dependent claims – Claim 2 recites more abstract idea. See e.g. MPEP 2106.04(a)(2)(II)(B). Claim 3 recites more abstract idea of receiving data in subsets. See e.g. MPEP 2106.04(a)(2)(III). Claim 4, 5 recites more abstract idea relating to what the data relates to. See e.g. MPEP 2106.04(a)(2)(II)(B). Claim 6 recites more abstract idea. See e.g. MPEP 2106.04(a)(2)(III). Claim 7 recites more abstract idea. See e.g. MPEP 2106.04(a)(2)(III). Claim 8, 20 recites more abstract idea. See e.g. MPEP 2106.04(a)(2)(III). Claim 9, 11 recites more abstract idea. See e.g. MPEP 2106.04(a)(2)(III). Claim 10 recites more abstract idea. See e.g. MPEP 2106.04(a)(2)(III); and MPEP 2106.04(a)(2)(I). Claim 12 recites more abstract idea of receiving data and then making a purchase. See e.g. MPEP 2106.04(a)(2)(II)(A) and (B). Claim 13, 19 recite more abstract idea. See e.g. MPEP 2106.04(a)(2)(III) associating data together. Claim 14 recites more abstract idea. See e.g. MPEP 2106.04(a)(2)(II)(C) managing personal behavior or relationships between people. Claim 15 recites more abstract idea of generating a report and transmitting for display to another device the report. See MPEP 2106.04(a)(2)(III)(A) In contrast, claims do recite a mental process when they contain limitations that can practically be performed in the human mind, including for example, observations, evaluations, judgments, and opinions. Examples of claims that recite mental processes include: a claim to “collecting information, analyzing it, and displaying certain results of the collection and analysis,” where the data analysis steps are recited at a high level of generality such that they could practically be performed in the human mind, Electric Power Group v. Alstom, S.A., 830 F.3d 1350, 1353-54, 119 USPQ2d 1739, 1741-42 (Fed. Cir. 2016). For claim 16, the sensors are addressed as additional limitations above, and having the sensors inside and outside near the exit does not change the determination found above relating to the sensors, and they are found to be directed to abstract idea. For claim 17, this is more abstract idea. See e.g. MPEP 2106.04(a)(2)(III).
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1-20 are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Pat. Pub. No. 2007/0182818 to Buehler (“Buehler”) in view of U.S. Pat. Pub. No. 2010/0012722 to Hall (“Hall”) in further view of U.S. Pat. Pub. No. 2013/0300584 to Morin (“Morin”).
With regard to claims 1 and 18, Buehler discloses the claimed system for identifying items likely stolen from a physical retail environment in an online marketplace, the system comprising:
a checkout station having at least one scanning device and a point of sale (POS) terminal, the checkout station being configured to scan items during a checkout process and generate digital, machine-readable signals representative of transaction data upon completion of the checkout process (Buehler - see e.g. [0006], Fig. 2 [0046-49], [0068]);
item detection sensors near an exit of a physical retail environment configured to detect item identification tags fixed to the items that leave the physical retail environment and provide item data representative of detected items as digital, machine-readable signals, wherein the item data includes at least for each item an item identifier, an item type, and a timestamp at which the time was detected (see e.g. [0011] The system includes cameras that produce video signals representing at least a portion of an environment and a video-processing module for analyzing the video signals and identifying objects within the environment.; [0015] The video surveillance subsystem includes a number of cameras and each camera's field of view includes multiple camera sub-regions. [0016] Data captured by the video surveillance subsystem can include visual representations of objects moving among the cameras and/or the sub-regions of the cameras. [0034-35] video metadata, “Examples of metadata used by the alarm module when processing the rules include object IDs, object type (e.g., person, product, etc.) date/time stamps, current camera location, previous camera locations, directional data, product cost, product shrinkage, as well as others.” [0036] [0038] etc.; [0046] video surveillance at exit point 230); and
a computer system in communication with the checkout station and the item detection sensors, the computer system configured to identify items likely stolen from the physical retail environment in an online marketplace (Buehler - see e.g. [0045] near real time events; [0053] RFID at exit, SKU/serial captured and checked against recent purchases; [0042] [0086-87]), the computer system configured to perform operations comprising:
receiving, from the item detection sensors, digital, machine-readable signals representative of item data indicating the items detected by the item detection sensors as leaving the physical retail environment (Buehler - see e.g. [0009-11]);
receiving, from the checkout station, [[the]] digital, machine-readable signals representative of transaction data for checkout processes that have been completed at the checkout station (Buehler - e.g. [0048-49]);
correlating, based on the received digital, machine readable item detection, first detections of item identification tags by a first RFID readers position inside the store (see Buehler, RFID station reader at [0048], and data correlation at “In some embodiments, the data can be further combined with point-of-sale data, such that products "seen" leaving through the exit (whether by video, RFID, or both) have been previously scanned by, for example, a SKU scanner at a checkout.” Showing an example of the correlation of POS transaction data, video surveillance data, and RFID tag read data, all same product tracking; [0010] concept of having video sensors and RFID readers in same embodiment is shown here, “For example, video images and location-specific data (based, for example, on RFID; [0016] The associations can be based, for example, on locational correspondences between the camera sub-regions and the operational radii, and in some embodiments may be inferred from data captured by the video surveillance subsystem, the RFID subsystem, or both) can be utilized to create a complete "timeline" tracking the passage of an object and/or person through a monitored area.”)
identifying a subset of two or more items in the transformed item data that do not match items in the transformed transaction data as an item shortage in the physical retail environment (Buehler - e.g. [0048-49] teaches rules that flag theft when an item is recognized at the exit without a corresponding checkout event i.e. a non-match to POS transactions);
grouping items in the identified subset of two or more items into a cluster based on a determination that the grouped items have timestamps within a threshold amount of time from each other to define a theft event cluster comprising a plurality of items that have exited the physical retail environment and have timestamps within three minutes or less of each other (Buehler - see e.g. [0046] [0049-53] Buehler tracks events over time, builds complete paths for people/items, and applies rules over time-adjacent events (near real-time representation; infers complete path using adjacencies, timestamps, and rule engine). While Buehler does disclose time-based association of multiple events into coherent episode, it does not expressly disclose “clustering multiple different items into a single cluster based on within with a short time window e.g. three minutes design choice. See secondary reference, Hall, for this. Hall teaches at Abstract, A method, activity monitoring station and system automatically track lost or stolen items. The method begins by searching a sales activity database for at least one sales data record containing information for items sold or offered for sale on at least one Internet site, and searching a loss database for at least one loss data record containing information relating to lost or stolen items. The at least one sales data record is compared to the at least one loss data record to discover at least one matching item. If at least one matching item is discovered, a suspicious activity report is generated. See Hall at [0012-13] [0020] The system of the present invention tracks patterns of theft and offers for sale on the Internet and correlates suspicious activity using cues such as geographic location of theft/sale, sale or offer for sale below typical market or wholesale price, quantity of items offered for sale similar to quantity stolen, date of offer for sale shortly after date stolen, etc. Other suspicious statistical properties may be considered as well, e.g., a new vendor offering a new item. In one embodiment, the system outputs a suspicious activity alert for loss prevention professionals and/or law enforcement personnel to help investigate and prosecute thieves and potentially recover losses. [0021-26] [0030-34] Hall explicitly computes a correlation value for an item or group of items, based on the number of matching parameters, and used a threshold to flag suspicious activity—i.e., grouping and scoring records; and time/date of loss is logged at e.g. [0028]. Therefore, adapting Hall’s “group of items + correlation/threshold” teaches, or at least renders obvious, to one of ordinary skill in the theft management art to group multiple shortage items detected around the same time into a cluster for downstream correlation, where the “within three minutes” is found to be an obvious design choice or grouping items within short period time to each other)
retrieving, over a computer network and from a server system hosting an online marketplace, seller listing data for the online marketplace, wherein the seller listing data comprises groups of items offered for sale in the online marketplace that are each associated with a different one of a plurality of online seller profiles (Buehler does not disclose online marketplaces. See Hall for this, as referred to above);
comparing the theft event cluster to each of the groups of items associated with the plurality of online seller profiles (see Hall for this, as referred to above);
determining, based on the comparing, cluster similarity scores for each of the groups of items, wherein a cluster similarity score is generated for an online seller profile by aggregating a cluster match score, determined by a quantity of items from the unique theft event cluster offered for sale by the online seller profile, and a location score, determined by a geographic proximity of the online seller profile to the physical retail environment (see Hall, as referred to above);
identifying, based on the cluster similarity scores, a particular group of items and a particular corresponding seller profile as having a greatest likelihood of listing the cluster of items in the online marketplace (See Hall, as referred to above, and [0012-13] discover matching items and generate report; [0026] compute correlation value, exceed threshold, then report; The correlation calculator 54 performs correlation searches between the sales activity database 14 and the loss database 16 to find matching items and calculates a correlation value based on the number of similar parameters found for the matching items. The report generator 56 generates a suspicious activity report 50 whenever the matching items found are so similar that the correlation value determined for that item, or group of items, exceeds a predetermined threshold.); and
returning output in response to identifying the particular group of items and the particular corresponding seller profile that, when transmitted to a user computing device, causes the user computing device to display instructions to buy one or more of the items of the seller listing data based on the particular group of items as likely being stolen from the physical retail environment (Buehler discloses generating real-time alerts to store security personnel via wireless devices (actionable output on a user device); Hall teaches at e.g. [0012-13] (suspicious activity report) [0020, 34] notify law enforcement; [0035] shows that the products can be purchased on the online marketplaces, and the examiner finds that actually purchasing the product, as claimed, is a design choice and an unrelated task. The examiner refers to Hall to show that the report could very easily direct the user to purchase the product, as the products can all be purchased, but Hall does not explicitly disclose that the report indicates to purchase the product.).
Therefore, it would have been obvious to one of ordinary skill in the theft management art before the effective filing date of the claimed invention to modify Buehler to include the teachings of Hall, as Buehler focused on in-store detection (EFID/EAS at exits and POS correlation and time-based event association, and then issues alerts. Hall addresses the downstream e-fencing problem by monitoring online marketplaces, harvesting sales/offers data, and correlating it against a loss database with numerical score/threshold for an item or group of items. Integrating Hall’s marketplace-monitoring correlation engine into Buehler’s instore shortage pipeline would have been a predictable beneficial enhancement to identify which online seller/listing is most likely fencing the shortage items, yielding the claimed cluster comparison/scoring and id of the seller profile with highest likelihood. See Hall, [0036] The present invention advantageously provides a method to detect sweet-hearting and to collect evidence of theft that may be used to build a case for future prosecution. The present invention can be realized in hardware, software, or a combination of hardware and software. Any kind of computing system, or other apparatus adapted for carrying out the methods described herein, is suited to perform the functions described herein.
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Buehler and Hall do not teach having a first and second item detection sensor on different sides of the exit, and further having a first and second RFID reader placed on different sides of the exit.
Morin teaches a portal (Fig. 1 to the left), which is commonly placed at the entrance/exit points of a retail physical store (see Morin teaching at [0003] entering/exiting the storefront), where the portal has at least a first motion sensor and first RFID reader on one side of the portal, and, on the other side of the portal, is a second motion sensor and a second RFID reader.
Morin [0015] - The exemplary motion sensors 141, 142, or motion detectors, may utilize a variety of methods for the electronic identification of the object 170, such as optical detection and/or acoustical detection. For example, infrared light or laser technology may be used for optical detection. In addition, the motion sensors may employ digital cameras connected to a computer network for storing and managing captured image
Morin [0033] - For example, one or more RFID readers may be positioned on each side of the RFID portal 110 (e.g., inside and outside the portal 110, to left and the right of the portal 110, etc.).
For the claimed “correlating, based on the received [data from item detection sensors]” the examiner refers to e.g. Morin abstract, “A system having a first motion sensor [the claimed “first sensor”] configured to sense movement of an object on a first side of a portal, the object including an RFID tag, a first RFID reader being activated by the first motion sensor when the first motion sensor senses movement of the object [the claimed “based on the received digital, . . . [from the at least first sensors] then performing an action such as starting the correlation process with the first RFID reader and second RFID reader], the first RFID reader reading the RFID tag, a second motion sensor configured to sense movement of the object on a second side of the portal and a second RFID reader being activated by the second motion sensor when the second motion sensor senses movement of the object, the second RFID reader reading the RFID tag, wherein, when one of the first and second motion sensors sense movement of the object, the other one of the first and second motion sensors is deactivated for a predetermined period of time.”
Accordingly, the examiner finds that one of ordinary skill in the retail art before the effective filing date of the claimed invention to modify Buehler’s scanning and event creation techniques to include not only sensor and RFID reader data from anywhere in the store, specific points on the retail floor etc., but also have the paired sensors and paired RFID readers at the exit portal of the store, as shown in Morin, where the advantage of this, as shown in Morin, is that [0038] The exemplary methods and systems described herein may allow for determining a direction of movement by the object 170 while detecting and identifying the RFID tag 171 on the object 170. In operation, the motion sensors 141, 142 may manage the activation of the RFID antennas, as well as visual cues from the light stacks 151, 152, in order to control the flow of traffic through the RFID portal 110. Accordingly, any reduction in the signal power of the RFID antennas may be avoided, thereby improving the overall percentage of successful reads (e.g., read rates) as the RFID tags travel through the RFID portal 110. Buehler, as shown before, teaches the creation of correlated events, such as such as shown at Buehler [0017], [0018] [0038-39]
With regard to claim 2, Buehler further discloses where the transaction data is received in real- time, as the checkout processes are completed at the checkout station (e.g. [0045]; [0004 [0009]).
With regard to claim 3, Buehler further discloses where the transaction data is received for a subset of checkout processes that are completed within a threshold amount of time from the timestamp for each item in the item data (Buehler – describes tying RFID EAS exit detections to contemporaneous POS events—i.e. matching against recent purchased—implying a time window [0004] [0008]. Hall teaches correlation is performed using correlation parameters, and a correlation threshold is applied Fig. 3, S106-108. See motivation above in claim 1).
With regard to claim 4, Buehler further discloses where the transaction data includes, for each completed checkout process, at least a timestamp at which the checkout process was completed and a list of item identifiers for items purchased during the checkout process (Buehler, [0045] [0004]).
With regard to claim 5, Buehler further discloses where the seller listing data further comprises, for each different one of the plurality of online seller profiles, a seller ID associated with the online seller profile, a list of item SKUs sold by the online seller profile, and a geographic location associated with the seller ID (Buehler discloses value of date, time and location information for evidence. Thus incorporating seller-location fields (as shown in Hall, above) into the sales-record schema is an obvious design choice within Hall’s correlation engine. See motivation above in claim 1).
With regard to claim 6, Buehler further discloses the identifying, based on the cluster similarity scores, a particular group of items and a particular corresponding seller profile as having a greatest likelihood of listing the cluster of items in the online marketplace comprises determining, based on the retrieved seller listing data, that the particular group of items was listed in the online marketplace by the particular seller profile within a threshold amount of time before the item shortage was identified in the physical retail environment (Buehler system fuses the multi-source event timelines (POS/EAS/RFID/video) based on timestamps [0004, 8, 9]. Hall teaches correlation using parameters/thresholds (Fig 3 S106-108). See motivation above.
With regard to claim 7, Buehler further discloses the identifying, based on the cluster similarity scores, a particular group of items and a particular corresponding seller profile as having a greatest likelihood of listing the cluster of items in the online marketplace comprises determining that the particular group of items was listed in the online marketplace by the particular seller profile within a threshold amount of time after the item shortage was identified in the physical retail environment (Buehler system fuses the multi-source event timelines (POS/EAS/RFID/video) based on timestamps [0004, 8, 9]. Hall teaches correlation using parameters/threhsolds (Fig 3 S106-108). See motivation above.
With regard to claim 8-9, 20, Buehler further discloses the identifying, based on the cluster similarity scores, a particular group of items and a particular corresponding seller profile as having a greatest likelihood of listing the cluster of items in the online marketplace comprises determining that a geographic location associated with the particular seller profile is within a threshold distance from the physical retail environment (Buehler emphasizes the evidentiary value of location metadata [0008] and integrates multiple security networks that inherently include site/location context; using geographic proximity (distance/radius) as a correlation parameter within Halls engine, as taught above, would have been ab obvious design choice, motivation above.).
With regard to claim 10, Buehler further discloses comparing the cluster to each of the groups of items associated with the plurality of online seller profiles to determine cluster similarity scores for each of the groups of items comprises: assigning a cluster match score to one of the plurality of online seller profiles above a first threshold value based on a determination that the online seller profile includes a threshold quantity of the cluster of items; assigning a location score to the online seller profile above a second threshold value based on a determination that a geographic location of the online seller profile is within a threshold distance from a geographic location of the physical retail environment; and generating a cluster similarity score for the online seller profile based on aggregating the cluster match score and the location score, wherein the cluster similarity score indicates a likelihood that the online seller profile is associated with the item shortage in the physical retail environment (Buehler provides the location dimension at [0008]Hall teaches assigning numerical values to matching parameter pairs and computing a correlation value against a threshold fig. 3, s106-108 and the discussion of correlation parameters and threshold. That’s directly analogous to per-factor scores (e.g. match score, location score) aggregated into an overall score). See motivation for claim 1.
With regard to claim 11, Buehler does not disclose, and Hall teaches the identifying, based on the cluster similarity scores, a particular group of items and a particular corresponding seller profile as having a greatest likelihood of listing the cluster of items in the online marketplace comprises identifying the particular corresponding seller profile having a cluster similarity score that exceeds a threshold confidence value (see e.g. Fig. 3, s106-108; abstract, [0011-13]).
With regard to claim 12, Buehler further discloses the returning output in response to identifying the particular group of items and the particular corresponding seller profile comprises generating instructions that, when transmitted and executed at the user computing device, causes the user computing device to purchase one or more items in the particular group of items, wherein the purchased one or more items are compared to the cluster to verify that the purchased one or more items correspond to the cluster of items identified in the item shortage in the physical retail environment (Buehler focuses on detection/alerts across video/RFID/POS/EAS, not on controlled test purchases; no teaching of buying items for verification; Hall teaches generating a suspicious activity report and forwards it to law enforcement and/or customers (Fig. 3, s110; abstract; [0011-13]). As shown with claim 1, the act of purchasing the item on the marketplace is standard practice and the user is capable of purchasing the item, where the automation of said manual activity is a obvious design choice, motivation in claim 1.
With regard to claims 13 and 20, wherein the returning output in response to identifying the particular group of items and the particular corresponding seller profile comprises associating a seller ID linked to the particular seller profile with a shopper in the physical retail environment, wherein the shopper is objectively identified in the physical retail environment, by the computer system, based on at least one of image data of the shopper in the physical retail environment and an objective identifier associated with the shopper, the objective identifier being at least one of a MAC address of a mobile device of the shopper, an email address, a phone number, and a credit card number (see Buehler at [0004] [0008]; see Hall forwards report to law enforcement. Including such data as MAC/email/phone/credit cards fields is obvious design choice. See motivation in claim 1).
With regard to claim 14, wherein the returning output in response to identifying the particular group of items and the particular corresponding seller profile comprises generating instructions that, when executed at the user computing device, cause an actor in the online marketplace to freeze the particular seller profile for a threshold period of time to prevent the particular seller profile from at least one of selling items, completing sales, and receiving payment from buyers (Buehler does not teach marketplace; Hall teaches after correlation greater than threshold, it generates and forward a suspicious activity report to law enforcement and/or customers, but does not explicitly teach freezing account. It would be an obvious design choice of the platform that created the account can cancel/freeze the account as needed).
With regard to claim 15, Buehler does not teach. Hall teaches wherein the returning output in response to identifying the particular group of items and the particular corresponding seller profile comprises: generating a report for law enforcement identifying the particular group of items, the particular seller profile, and items associated with the item shortage in the physical retail environment; and transmitting the report to a law enforcement computing device for use in investigating and stopping the particular seller profile from selling the particular group of items associated with the item shortage in the physical retail environment (Hall, abstract, [0011-13], Fig. 3 s110). Motivation in claim 1.
With regard to claim 16, Buehler further discloses the item detection sensors comprise RFID readers positioned (i) inside the physical retail environment near an exit of the physical retail environment and (ii) outside the physical retail environment near the exit of the physical retail environment (Buehler at [0004, 5, 6, 9]).
With regard to claim 17, Buehler further discloses each of the online seller profiles identifies a geographic location for a corresponding seller, and the computer system is further configured to perform operations comprising: selecting a subset of the seller profiles with geographic locations that are within a threshold distance of the physical retail environment; and comparing the cluster to each of the groups of items associated with the subset of seller profiles to determine cluster similarity scores for each of the groups of items (Buehler [0008] highlights use of location and annotating events with location for evidentiary continuity).
Response to Arguments
The examiner reviewed and considered all of Applicant’s arguments filed on 11/20/2025.
The examiner has withdrawn the previously-made rejections under 35 USC 112, thereby rendering those arguments moot.
For the 101 rejection arguments, the examiner maintains that the claims are directed to abstract idea. The examiner has reviewed the ADASA citation by Applicant. The claims in ADASA are vastly different than the present claims. The ADASA claims get into the improvement to the technology. Having two pair of sensors at a point in a store, such as the exit point, is not a technical improvement. Here is one of the Court’s holdings:
“Considered as a whole, and in view of the specification, claim 1 is not directed to an abstract idea. Rather, it is directed to a specific, hardware-based RFID serial number data structure designed to enable technological improvements to the commissioning process. Setting aside the conventional RFID hardware components, claim 1 as a whole focuses on the data structure of the serial number space. It requires that this space include a serial number selected from an allocated block and that this serial number comprise two components: (1) a limited number of MSBs, i.e., a limited, predefined sequence of higher order bits at the leading end of the serial number, see ADASA Inc. v. Avery Dennison Corp., No. 6:17-CV-01685-TC, 2019 WL 281298, at *1 (D. Or. Jan. 22, 2019) (Markman Order), and (2) remaining bits of lesser significance. ’967 patent at claim 1. Claim 1 further specifies that the claimed MSBs “uniquely correspond” to the MSBs assigned to the allocated block from which the serial number is drawn. Id.; see also Mark man Order, at *3 (construing “uniquely corresponding” according to its plain and ordinary meaning). In other words, for any set of MSBs there is exactly one corresponding al located block, and for each allocated block there is exactly one set of MSBs. In essence, the claimed MSBs function as an additional data field within the serial number space that uniquely identifies the allocated block from which it came. This one-to-one correspondence has important technological consequences.”
This is drastically different than Applicant’s claims, and not relevant.
Applicant’s arguments with respect to claim(s) 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/amendment. See the added reference of Morin to teach the amended limitations.
Conclusion
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/PETER LUDWIG/Primary Examiner, Art Unit 3627