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 .
Prosecution Status
Applicant’s amendments dated 11/20/2025 have been received and reviewed. The status of the claims is as follows:
Claims 1-10, 12-16, 18-20 are pending and rejected herein.
1. Claims 1-10, 12-16, 18-20 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.
Claims 1-10, 12-16, 18-20 are directed to initiating actions based on ongoing customer journeys, which is considered a commercial interaction. Commercial interactions fall within a subject matter grouping of abstract ideas which the Courts have considered ineligible (Certain methods of organizing human activity). The claims do not integrate the abstract idea into a practical application, and do not include additional elements that provide an inventive concept (are sufficient to amount to significantly more than the abstract idea).
Under step 1 of the Alice/Mayo framework, it must be considered whether the claims are directed to one of the four statutory classes of invention. In the instant case, claims 1-10, 12-16, 18 recite a non-transitory computer readable storage medium. Claim 19 recites a system comprising a processing unit. Claim 20 recites a method with at least one step. Therefore, the claims are each directed to one of the four statutory categories of invention (manufacture, apparatus, process).
Under step 2A of the Alice/Mayo framework, it must be considered whether the claims are “directed to” an abstract idea. That is, whether the claims recite an abstract idea and fail to integrate the abstract idea into a practical application.
Regarding independent claim 1, the claim sets forth a process in which actions are initiated based on ongoing customer journeys, including through the facilitation of consumer-to-business interaction, in the following limitations:
receiving customer journey data associated with an ongoing customer journey, the ongoing customer journey involves an individual in a retail store, the customer journey data indicates a trajectory in the retail store;
while the ongoing customer journey is in progress, analyzing the customer journey data to determine information associated with the individual;
using the information associated with the individual to select an action associated with the individual;
wherein the action includes offering while the ongoing customer journey is in progress, an online purchase opportunity to the individual, the online purchase opportunity being associated with a delivery of a selected product from a first destination to a second destination without passing through the retail store:
analyzing the information associated with the individual to select at least one of the product or a price associated with the selected product; and
initiate the selected action.
The above-recited limitations establish a commercial interaction with a customer to initiate a selected action associated with the customer’s journey within a retail store. This arrangement amounts to both a sales activity or behavior; and business relations. Such concepts have been considered ineligible certain methods of organizing human activity by the Courts (See MPEP 2106.04(a)).
Claim 1 does recite additional elements:
and a device associated with the individual
is based on data captured using an indoor positioning instrument associated with the device and
of the device
using a display and/or audio instrument associated with the device
generating a digital signal configured to
These additional elements merely amount to the general application of the abstract idea to a technological environment (“and a device associated with the individual”, “is based on data captured using an indoor positioning instrument associated with the device”, “of the device”, “using a display and/or audio instrument associated with the device”, “generating a digital signal configured to”). The specification makes clear the general-purpose nature of the technological environment. At least paragraphs 38-58 list numerous acceptable technological implementations of the invention using known, existing elements, and indicate that while exemplary general-purpose systems may be specific for descriptive purposes, any elements or combinations of elements capable of implementing the claimed invention are acceptable. That is, the technology used to implement the invention is not specific or integral to the claim.
Therefore, considered both individually and as an ordered combination, the additional elements do no more than generally link the use of the abstract idea to a particular technological environment or field of use. That is, given the generality with which the additional limitations are recited, the limitations do not implement the abstract idea with, or use the abstract idea in conjunction with, a particular machine or manufacture that is integral to the claim. Additionally, the claims do not reflect an improvement in the functioning of a computer, or an improvement to other technology or technical field, do not effect a transformation or reduction of a particular article to a different state or thing; and do not apply or use the abstract idea in some other meaningful way beyond generally linking the use of the abstract idea to a particular technological environment, such that the claim as a whole is more than a drafting effort designed to monopolize the abstract idea. Accordingly, the Examiner concludes that the claim fails to integrate the abstract idea into a practical application, and is therefore “directed to” the abstract idea.
Under step 2B of the Alice/Mayo framework, it must finally be considered whether the claim includes any additional element or combination of elements that provide an inventive concept (i.e., whether the additional element or elements are sufficient to amount to significantly more than the abstract idea). In the instant case, the additional elements (recited above) simply append well-understood, routine, conventional activities previously known to the industry, specified at a high level of generality, to the judicial exception. Communicating information (i.e., receiving or transmitting data over a network) has been repeatedly considered well-understood, routine, and conventional activity by the Courts (See MPEP 2106.05(d)). Accordingly, the Examiner asserts that the additional elements, considered both individually, and as an ordered combination, do not provide an inventive concept, and the claim is ineligible for patent.
Regarding Claims 19, 20
Independent Claims 19 and 20 are parallel in scope to claim 1 and ineligible for similar reasons.
Regarding Claim 2
While the claim does set forth the additional limitation of “wherein the device is a shopping cart”, this recitation is similar to the additional limitations in claim 1, as it does no more than generally link the use of the abstract idea to a particular technological environment. As such, it does not integrate the abstract idea into a practical application, and does not provide an inventive concept. Accordingly, the claim does not confer eligibility on the claimed invention and is ineligible for similar reasons to claim 1.
Regarding Claims 3-10, 12-18
Dependent claims 3-10 and 12-18 merely set forth embellishments to the abstract idea, and they do not confer eligibility on the claimed invention. Accordingly, they are rejected for similar reasons to claim 1 above.
Regarding Claim 11
Claim 11 sets forth:
wherein the selected action includes presenting particular content to the individual
and wherein the operations further comprise selecting the particular content based on the information associated with the individual
Such recitations merely embellish the abstract idea of initiating actions based on ongoing customer journeys, including facilitating interaction between consumers and businesses. While the claim does set forth the additional limitation of “using a display instrument associated with the device”, this recitation is similar to the additional limitations in claim 1, as it does no more than generally link the use of the abstract idea to a particular technological environment. As such, it does not integrate the abstract idea into a practical application, and does not provide an inventive concept. Accordingly, the claim does not confer eligibility on the claimed invention and is ineligible for similar reasons to claim 1.
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.
2. Claims 1, 6, 11, 12, 15, 16, 19, 20 are rejected under 35 U.S.C. 103 as being unpatentable over Sjolund et al. (US 20160171547 A1, hereinafter Sjolund) in view of Gadre et al. (US 20150039461 A1, hereinafter Gadre).
Regarding Claim 1
Sjolund discloses a non-transitory computer readable medium storing a software program comprising data and computer implementable instructions that when executed by at least one processor cause the at least one processor to perform operations for initiating actions based on ongoing customer journeys, the operations comprising:
receiving customer journey data associated with an ongoing customer journey, the ongoing customer journey involves an individual and a device associated with the individual in a retail store, the customer journey data is based on data captured using an indoor positioning instrument associated with the device and indicates a trajectory of the device in the retail store; (Sjolund: at least ¶7-16)
while the ongoing customer journey is in progress, analyzing the customer journey data to determine information associated with the individual; (Sjolund: at least ¶7-16)
using the information associated with the individual to select an action associated with the individual; and generating a digital signal configured to initiate the selected action. (Sjolund: at least ¶7-16)
Sjolund does not explicitly disclose, but Gadre teaches in a similar environment:
wherein the action includes offering, while the ongoing customer journey is in progress, an online purchase opportunity to the individual, the online purchase opportunity is associated with a delivery of a selected product from a first destination to a second destination without passing through the retail store, and wherein the operations further comprise analyzing the information associated with the individual to select at least one of the product or a price associated with the selected product. (Gadre: at least ¶38)
It would have been obvious to one of ordinary skill in the art at the time of filing to have modified the invention of Sjolund, with the features of Gadre, since such a modification would have facilitated providing information to a shopper in a physical retail store regarding items on a shopping list or recommended items and facilitated the user's ability to efficiently navigate a physical retail store or warehouse. (Gadre: ¶72)
Regarding Claims 19, 20
Claims 19 and 20 are parallel in scope to claim 1 and rejected on similar grounds.
Regarding Claim 6
Sjolund further discloses:
wherein the information associated with the individual is further based on a profile associated with the individual (Sjolund: at least ¶109-116), and
Sjolund does not explicitly disclose, Gadre teaches in a similar environment:
wherein the profile is based on a shopping list associated with the individual (Gadre: at least ¶38)
It would have been obvious to one of ordinary skill in the art at the time of filing to have modified the invention of Sjolund, with the features of Gadre, since such a modification would have facilitated providing information to a shopper in a physical retail store regarding items on a shopping list or recommended items and facilitated the user's ability to efficiently navigate a physical retail store or warehouse. (Gadre: ¶72)
Regarding Claim 11
Sjolund further discloses:
wherein the selected action includes presenting particular content to the individual using a display instrument associated with the device (Sjolund: at least ¶109-116: digital signages along path of customed devices), and
wherein the operations further comprise selecting the particular content based on the information associated with the individual (Sjolund: at least ¶79: advertisement selected based on change in path of customers).
Regarding Claim 12
Sjolund further discloses:
wherein the customer journey data further indicates stops of the device during the ongoing customer journey, and wherein the information associated with the individual is based on the stops of the device during the ongoing customer journey (Sjolund: at least abstracts, ¶9, 15, 59-61: dwell times in zones)
Regarding Claims 15, 16
Sjolund further discloses:
wherein the customer journey data includes an indication of whether the device returns to a particular region of the retail store after leaving the particular region, and wherein the determination of the information associated with the individual is based on the particular region and on whether the device returns to the particular region of the retail store after leaving the particular region (Sjolund: at least figs. 1-3, ¶74-85)
wherein the customer journey data further includes an indication of a time duration between the leaving the particular region and the returning to the particular region, and wherein the determination of the information associated with the individual is further based on the time duration (Sjolund: at least ¶85)
3. Claims 2-4, 8, 10, 13, 18 are rejected under 35 U.S.C. 103 as being unpatentable over Sjolund in view of Gadre, as applied above, and further in view of Morton et al. (US 20120271715 A1, hereinafter Morton).
Regarding Claim 2
Sjolund in view of Gadre does not explicitly disclose, but Morton teaches in a similar environment:
wherein the device is a shopping cart (Morton: at least ¶18, 28, 57)
It would have been obvious to one of ordinary skill in the art at the time of filing to have modified the invention of Sjolund in view of Gadre, with the features of Morton, since such a modification would have married the effectiveness of online advertising to the inherent volume advantage provided by traditional brick-and-mortar retailers. (see at least ¶4 of Morton)
Regarding Claim 3
Sjolund in view of Gadre further discloses:
wherein the information associated with the individual is further based on a profile associated with the individual (Sjolund: at least ¶109-116), and
Sjolund in view of Gadre does not explicitly disclose, Morton teaches in a similar environment:
wherein the profile indicates at least one demographic characteristic associated with the individual (Morton: at least: ¶39, 57)
It would have been obvious to one of ordinary skill in the art at the time of filing to have modified the invention of Sjolund in view of Gadre, with the features of Morton, since such a modification would have married the effectiveness of online advertising to the inherent volume advantage provided by traditional brick-and-mortar retailers. (see at least ¶4 of Morton)
Regarding Claim 4
Sjolund in view of Gadre further discloses:
wherein the information associated with the individual is further based on a profile associated with the individual (Sjolund: at least ¶109-116), and
Sjolund in view of Gadre does not explicitly disclose, Morton teaches in a similar environment:
wherein the profile is based on past purchases of the individual from at least one completed historic journey of the individual, and wherein the operations further comprise using historic data to analyze activities of the individual in the ongoing customer journey to obtain the purchases from the at least one completed historic journey of the individual. (Morton: at least ¶18, 21, 38, 39)
It would have been obvious to one of ordinary skill in the art at the time of filing to have modified the invention of Sjolund in view of Gadre, with the features of Morton, since such a modification would have married the effectiveness of online advertising to the inherent volume advantage provided by traditional brick-and-mortar retailers. (see at least ¶4 of Morton)
Regarding Claim 8
Sjolund in view of Gadre does not explicitly disclose, but Morton teaches in a similar environment:
wherein the operations further comprise: analyzing the customer journey data to predict a prospective purchase of the individual; and basing the selection of the action on the predicted prospective purchase. (Morton: at least ¶100, 104)
It would have been obvious to one of ordinary skill in the art at the time of filing to have modified the invention of Sjolund in view of Gadre, with the features of Morton, since such a modification would have married the effectiveness of online advertising to the inherent volume advantage provided by traditional brick-and-mortar retailers. (see at least ¶4 of Morton)
Regarding Claim 10
Sjolund in view of Gadre does not explicitly disclose, but Morton teaches in a similar environment:
wherein the operations further comprise analyzing the customer journey data to predict a susceptibility of the individual to a recommendation, and wherein the information associated with the individual is based on the predicted susceptibility of the individual to the recommendation. (Morton: at least ¶100)
It would have been obvious to one of ordinary skill in the art at the time of filing to have modified the invention of Sjolund in view of Gadre, with the features of Morton, since such a modification would have married the effectiveness of online advertising to the inherent volume advantage provided by traditional brick-and-mortar retailers. (see at least ¶4 of Morton)
Regarding Claim 13
Sjolund in view of Gadre does not explicitly disclose, but Morton teaches in a similar environment:
wherein the customer journey data further indicates purchases made by the individual during the ongoing customer journey, and wherein the information associated with the individual is based on the purchases made by the individual during the ongoing customer journey. (Morton: at least ¶20-21)
It would have been obvious to one of ordinary skill in the art at the time of filing to have modified the invention of Sjolund in view of Gadre, with the features of Morton, since such a modification would have married the effectiveness of online advertising to the inherent volume advantage provided by traditional brick-and-mortar retailers. (see at least ¶4 of Morton)
Regarding Claim 18
Sjolund in view of Gadre does not explicitly disclose, but Morton teaches in a similar environment:
wherein the information associated with the individual includes a plurality of mathematical objects in a mathematical space, and wherein the operations further comprise: calculating a mathematical function of the plurality of mathematical objects to obtain a numerical result value; and basing the selection of the action associated with the individual on the numerical result value. (Morton: at least ¶86: dwell time calculation)
It would have been obvious to one of ordinary skill in the art at the time of filing to have modified the invention of Sjolund in view of Gadre, with the features of Morton, since such a modification would have married the effectiveness of online advertising to the inherent volume advantage provided by traditional brick-and-mortar retailers. (see at least ¶4 of Morton)
4. Claims 5, 14 are rejected under 35 U.S.C. 103 as being unpatentable over Sjolund in view of Gadre, as applied above, and further in view of Ye et al. (US 20210233110 A1, hereinafter Ye).
Regarding Claim 5
Sjolund in view of Gadre further discloses:
wherein the information associated with the individual is further based on a profile associated with the individual (Sjolund: at least ¶109-116), and
Sjolund in view of Gadre does not explicitly disclose, Ye teaches in a similar environment:
wherein the profile is based on reactions of the individual to presentations made using the display instrument associated with the device. (Ye: at least ¶19, 49, 71)
It would have been obvious to one of ordinary skill in the art at the time of filing to have modified the invention of Sjolund in view of Gadre, with the features of Ye, since such a modification would have effectively converted conventional brick and mortar retail stores into powerful digital marketing channels that provide targeted digital advertisements to customers of a retail store while the customers shop, thereby providing additional income for retailers and providing an effective marketing tool for various clients. (Ye: ¶72)
Regarding Claim 14
Sjolund in view of Gadre does not explicitly disclose, but Ye teaches in a similar environment:
wherein the customer journey data further indicates content presented to the individual using an instrument associated with the device during the ongoing customer journey, and wherein the information associated with the individual is based on the content presented to the individual. (Ye: at least ¶49-50)
It would have been obvious to one of ordinary skill in the art at the time of filing to have modified the invention of Sjolund in view of Gadre, with the features of Ye, since such a modification would have effectively converted conventional brick and mortar retail stores into powerful digital marketing channels that provide targeted digital advertisements to customers of a retail store while the customers shop, thereby providing additional income for retailers and providing an effective marketing tool for various clients. (Ye: ¶72)
5. Claims 7 is rejected under 35 U.S.C. 103 as being unpatentable over Sjolund in view of Gadre, as applied above, and further in view of Goulart (US 20140092261 A1).
Sjolund in view of Gadre does not explicitly disclose, but Goulart teaches in a similar environment:
wherein the operations further comprise: receiving a handwritten version of the shopping list; analyzing the handwritten version to obtain a digital version of the shopping list; and further basing the profile on at least one of shapes of characters in the handwritten version, sizes of characters in the handwritten version, spacing between characters in the handwritten version, spacing between words in the handwritten version, or spacing between lines in the handwritten version. (Goulart: at least ¶42, 29, 68)
It would have been obvious to one of ordinary skill in the art at the time of filing to have modified the invention of Sjolund in view of Gadre, with the features of Goulart, since such a modification would have merely united elements of the prior art references, with no change in their respective functions, and would have yielded predictable results.
7. Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Sjolund in view of Gadre, as applied above, and further in view of Paradise et al. (US 20110145093 A1, hereinafter Paradise).
Sjolund in view of Gadre does not explicitly disclose, but Paradise teaches in a similar environment:
wherein the operations further comprise: analyzing the customer journey data to determine a confidence level associated with the prediction; and further basing the selection of the action on the confidence level associated with the predicted prospective purchase. (Paradise: at least ¶80)
It would have been obvious to one of ordinary skill in the art at the time of filing to have modified the invention of Sjolund in view of Gadre, with the features of Paradise, since such a modification would have maximized sales by effectively predicting products a user is likely to purchase (Paradise: see at least ¶79-81)
Response to Arguments
Applicant's arguments with respect to the 35 USC 101 rejection have been fully considered but they are not persuasive. With respect to Step 2A, Prong One of the Mayo/Alice framework, applicant asserts that “while the Examiner identifies certain methods of organizing human activity, the claims recite a specific technological process for real-time retail customer engagement”. In response, the Examiner asserts that a “process for real-time customer engagement” would be itself considered a commercial interaction, and therefore would fall under the “Certain methods of organizing human activity” grouping of abstract ideas. Accordingly, the claims do recite an abstract idea.
With respect to Step 2B, Prong Two, applicant asserts:
Under Step 2A, Prong Two, the claims integrate any purported abstract idea into a practical application. The amendments specify using indoor positioning-derived trajectory data for individual analysis to offer online purchases with store-bypassing delivery, improving retail systems by reducing physical congestion and enabling seamless physical-digital integration. This is an improvement in computer-related technology, similar to Enfish, LLC v. Microsoft Corp., 822 F.3d 1327 (Fed. Cir. 2016) (self-referential database tables improved data storage/retrieval) and McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299 (Fed. Cir. 2016) (rules-based animation improved rendering).
However, improving “retail systems” by reducing physical congestion clearly amounts to an improvement to a commercial field, and not a technological one. The Examiner is aware of no precedent for commercial improvements rendering an otherwise ineligible claim eligible.
Applicant additionally asserts, with regard to Prong Two, that “The instant specification (0082-0085) details how inventive trajectory analysis solves inaccurate group targeting, providing specificity beyond generic computation”. Similar to above, inventive analysis to provide more accurate group targeting would amount to a commercial improved, and would not render the claims eligible.
Applicant finally asserts, with regard to Prong Two, “[t]he inventive elements (indoor positioning instrument, device-associated display, digital signal for bypass delivery) are integral to the amended claims, not mere linking to a field of use; they reflect an inventive ordered combination transforming data into actionable, individualized e- commerce in real-time physical settings, unlike Content Extraction & Transmission LLC v. Wells Fargo Bank, N.A., 776 F.3d 1343 (Fed. Cir. 2014) (routine data recognition).” The Examiner respectfully disagrees. As noted in the rejection above, the claims do not set forth specific technical operations for performing the claimed commercial process beyond generic application of the claimed process to known technologies, and the specification emphasizes numerous existing technologies that can be used to implement the invention. This emphasis makes clear that the technology used in the claim is not meaningful or particular to the claimed concept, instead acting as a general field of use for the commercial scheme. Additionally, “transforming data into actionable, individualized e- commerce in real-time physical settings” amounts to yet another commercial improvement, rather than a technological improvement.
With regard to Step 2B, applicant asserts “the combination is unconventional, as prior art (detailed below) uses aggregation or fixed displays, not individual trajectory-driven bypass offers.” However, such an argument is erroneous, as the tests for eligibility and novelty/non-obviousness are separate inquiries.
For the above reasons, applicant’s arguments are not persuasive, and the claims are held to be ineligible. Accordingly, the rejection is maintained.
Applicant’s arguments with respect to the prior art rejections have been fully considered, but they are not persuasive. As an initial matter, applicant repeatedly asserts that the cited references “Teach away” from the claimed invention. In response, the Examiner notes that "the prior art’s mere disclosure of more than one alternative does not constitute a teaching away from any of these alternatives because such disclosure does not criticize, discredit, or otherwise discourage the solution claimed…." In re Fulton, 391 F.3d 1195, 1201, 73 USPQ2d 1141, 1146 (Fed. Cir. 2004) (See also MPEP 2123, 2141.02, 2143.01, 2145) None of the cited references “criticize, discredit, or otherwise discourage the solution claimed, and none of the cited reference would lead a person of ordinary skill in the art in a direction divergent form the path that was taken by the applicant. Therefore, none of the references teach away from the claimed invention.
Additionally, Applicant's arguments fail to comply with 37 CFR 1.111(b) because they amount to a general allegation that the claims define a patentable invention without specifically pointing out how the language of the claims patentably distinguishes them from the references. Applicant repeatedly references general concepts purportedly invented, but provides no correspondence of the concepts to specific claim language, and similarly alleges prior art deficiency of these concepts, rather than any claim language. Accordingly, the arguments are not persuasive, and the rejections are maintained.
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 MICHAEL A MISIASZEK whose telephone number is (571)272-6961. The examiner can normally be reached Monday-Thursday. 8:00 AM - 5:30 PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Jeffrey Smith can be reached at 571272-6763. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MICHAEL MISIASZEK/Primary Examiner, Art Unit 3688