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 . 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 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.
DETAILED ACTION
This Final Office Action is in response Applicant communication filled on 08/11/2025.
Status of Claims
Claims 1,10 are independent and have been amended by Applicant.
Claims 1-10 are currently pending and have been rejected as follows.
Response to Amendments / Arguments
Applicant’s 08/11/2025 amendment necessitated new grounds of rejection in this office action.
Response to Applicant’s 101 rebuttal Arguments
A: Remarks 08/11/2025 p.5 ¶5 argues the claims do not recite abstract pricing optimization but rather cost minimization looking at a customer’s usage, then automatically adjusting how their retail plan maps to various wholesale plans (never offered) to minimize the customer's monthly costs, which is alleged as not a fundamental economic practice, although Remarks 08/11/2025 p.5 ¶6 admits “determining a least-cost wholesale plan for the customer” relates to economic activity but allegedly failing to meet the requirements for a "fundamental economic practice” [bolded emphasis added]. Finally, Remarks 08/11/2025 p.6 ¶1 argues the claims describe how, via an arrangement of components, and with certain software in place, a processor can optimize the mapping between a retail network plan and a wholesale network plan without access to any customer-identifiable information, which fails to meet fundamental economic practice requirements.
Examiner fully considered the argument A but respectfully disagrees finding it unpersuasive because cost minimization, recited here as a “least-cost wholesale plan for the customer” at independent Claims 1,10 and admitted by Applicant at Remarks 08/11/2025 p.5 ¶5 as being what the claimed invention is directed to, remains an undeniably abstract example or commercial and/or fundamental economic practice or principle within the Certain Method of Organizing Human Activities grouping. For example, it can be argued as an abstract form of price optimization in a manner not meaningfully different than OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1362-63, 115 USPQ2d 1090, 1092-1093 (Fed. Cir. 2015) as cited by MPEP 2106.04(a)(2) II A ¶2, MPEP 2106.04(a)(2) II iv., and MPEP 2106.04(a)(2) II B iii. In fact, the current claims are so similar to OIP supra, that Applicant’s rebuttal efforts focus on the meager difference that in OIP the offer optimization is performed for the merchandiser or the seller based on the customer response, while here, the cost minimization or optimization is performed for the customer based on the customer usage response vis-a-vis the plans offered by the seller or provider (i.e. here sellers such as mobile virtual network operator MVNO, and mobile network operator MNO). However, no matter to whom, or for whom, among the seller or customer, the price or cost optimization or minimization pertains to, or is intended for, the offer/price optimization/minimization is clearly an abstract concept falling squarely within the fundamental economic practices and/or commercial interactions of MPEP 2106.04(a)(2) II.
The Applicant is reminded that the term fundamental not used in the sense of necessarily being old or well-known1, but rather as a building block of modern economy as defined by MPEP 2106.04(a)(2) II A at ¶2, with narrow laws [i.e. abstract idea] of limited applications still ineligible, per MPEP 2106.04 I, ¶3, 5th sentence. Here, no matter of its limited applicability to a telecommunication environment and its associated market participants in said telecom. environment, i.e. “a mobile virtual network operator (MVNO)”, “a mobile network operator (MNO)” and “customer” consuming or us[ing]
the “network”, of a “customer” select[ed], then being commercially targeted, marketed or advertised (never offered) wholesale plans according to receiv[ed], data usage [or consumption or demand] of the customer, for subsequently estimating the future data usage, to minimize the customer's costs by
“switching the customer to a least-cost wholesale plan, remain as commercial and/or fundamental economic practices or principles of consumption/demand to offer/supply, such as price discovery, marketing, advertising, or mapping among supply/offers and consumption/demand of Certain Methods of Organizing Human Activities [MPEP 2106.04(a)(2) II].
Also, as deliberately stated by the same MPEP 2106.04(a)(2) II at ¶6, 4th sentence, certain activity between a person and a computer, even when performed anonymously may still fall within "certain methods of organizing human activity". Thus here, the fact that the “usage of the network by the customer for a first period of time” is receiv[ed] “at the one or more processors via an application programming interface”, “where no” [thus anonymous] “user-identifiable information is received by the one or more processors”; does not preclude the claims from reciting, describing or setting forth the abstract certain methods of organizing human activity grouping. Further, aside from a potential issue of limited patentable weight, as introduced by the where[in] limitation: “where2 no user-identifiable information is received by the one or more processors” as amended at each of independent Claims 1,10, said claims provide no details on how to achieve the contested non-identifiable data gathering. Even if it did, the Examiner submits in the arguendo, that simple instances of encoding3 [interpreted as anonymizing] information, if hypothetically claimed, would still set forth the abstract exception as revealed by MPEP 2106.04 II A 2 ¶3. Here, the technological standard is even lower, as the claims themselves are completely devoid of any technological explanation for how “no user-identifiable information is received by the one or more processors”. Even the Original Specification says few if any about “where no user-identifiable information is received by the one or more processors” as amended at each of independent Claims 1,10.
This finding is important because according to MPEP 2106.04(d)(1) ¶2, 5th sentence: “If the specification explicitly sets forth an improvement but in a conclusory manner (i.e., a bare assertion of an improvement without the detail necessary to be apparent to a person of ordinary skill in the art), the examiner should not determine the claim improves technology”. Such a situation is disclosed here at Original Specification ¶ [0059] which states that “the one or more processors may be shielded from any user-identifying information, and can minimize any privacy concern of a retailer” by what appears to be the use of an intermediary namely, “an application programming interface (API) that may allow multiple retailers to communicate with the one or more processors”. Yet, the use of an intermediary component, such as online clearing house shadowing [interpreted as shielding] real accounts did not save the claims from patent ineligibility in Alice Corp. Pty. Ltd. v. CLS Bank Int'l, 573 U.S. 208, 225, 110 USPQ2d 1984 (2014). It then follows that here, general recitation of expression “via an application programming interface”, as an intermediary, for “receiving” “data usage of the network by the customer for a first period of time, where no user-identifiable information is received by the one or more processors” would similarly not save the claims from patent ineligibility.
Thus, the Examiner has provided a preponderance of legal evidence demonstrating that the claims’ character as a whole remains undeniably abstract with the “determining a least-cost wholesale plan for the customer” following the “receiving, at the one or more processors via an application programming interface, data usage of the network by the customer for a first period of time, where no user-identifiable information is received by the one or more processors”, as raised by Remarks 08/11/2025 at p.5 ¶5-p.6 ¶1 not precluding said claims to recite, describe or set forth the abstract idea.
B: Remarks 08/11/2025 p.6 ¶4-¶5 argues the amended claimed technique is used only for mapping plans offered by a mobile virtual network operator (MVNO) and wholesale plans offered by a mobile network operator (MNO). Remarks 08/11/2025 p.6 ¶5 further argues the technique requires receiving selections of a retail plan by a customer, then receiving, at one or more processors, an initial wholesale plan offered by the MNO. Further, it is argued that the process involves receiving, at the one or more processors via an application programming interface, data usage of a customer without passing along user-identifiable information. After the processors estimate the future data usage of the network, the one or more processors automatically switch the customer to a least-cost wholesale plan.
Thus, the Applicant alleges that these extra elements integrate any judicial exception into a practical application, and in particular, a practical application for use with MVNOs and MNOs that results in avoidance of the customer having ''very heavy losses due to overage payments to the MNO" or "unnecessarily paying more to the MNO'' citing Original Specification ¶ [0005].
Examiner fully considered the argument B but respectfully disagrees finding it unpersuasive, reincorporating herein all the finding and rationales above.
Examiner further notes that nearly all the elements, argued by Remarks 08/11/2025 p.6 ¶4-¶5 remain integral to the abstract exception. Specifically, receiving selections of a retail plan by a customer, then receiving, an initial wholesale plan offered by the [provider], receiving, data usage [or consumption or demand] of a customer, and after estimating the future data usage, switching the customer to a least-cost wholesale plan, still fall right within the commercial and/or fundamental economic practices or principles of consumption/demand to offer/supply of Certain Methods of Organizing Human Activities [MPEP 2106.04(a)(2) II] as explained above. The same rationale applies to the general recitation of “where no user-identifiable information is received by the one or more processors” as being not meaningfully different than the abstract anonymization of MPEP 2106.04(a)(2) II ¶6, 4th sentence, the abstract encoding or anonymizing of information at MPEP 2106.04 II A 2 ¶3, and/or the shielding or shadowing of accounts by an intermediary as in Alice Corp. Pty. Ltd. v. CLS Bank Int'l, 573 U.S. 208, 225, 110 USPQ2d 1984 (2014).
The fact that such abstract supply-demand principles, as identified above, do refer to a “mobile virtual network operator (MVNO)” and “mobile network operator (MNO)” as opposed to a generally recited seller or merchant, and the fact that the consumption or usage refer to “data usage of a network” as opposed to a generally recited product or service, and the fact that the “switching the customer from the initial wholesale plan to the least-cost wholesale plan and mapping the least-cost wholesale plan to the retail plan” is done “automatically” does not preclude the claims from reciting, describing or setting forth the abstract exception because, according to MPEP 2106.04(a)(2) II A ¶2 the term fundamental not used in the sense of necessarily being old or well-known, but rather as a building block of modern economy. Indeed, according to MPEP 2106.04 I ¶3 narrow laws that have limited applications do not render the claims less abstract and eligible. This is more granularly revealed when tested per MPEP 2106.05(h) showing that narrowing the abstract exception to a field of use or technological environment does integrate the abstract exception into a practical application. For example, according to MPEP 2106.05(h)(ii) identifying participants as commodity providers [akin here to mobile “virtual network operator (MVNO)” and “mobile network operator (MNO)”] and commodity consumers [here “customer”] in a specific market [here telecommunication market], is an example of narrowing the abstract exception to a field of use or technological environment, that does not integrate the abstract exception into a practical application. Similarly, per MPEP 2106.05(h)(iv), specifying that the abstract idea of monitoring audit log data [here “use or network”] relates to transactions or activities that are executed in a computer environment [here “network”], is another example of narrowing the abstract exception to a field of use or technological environment, that does not integrate the abstract exception into a practical application. Also, per MPEP 2106.05(h)(viii) specifying that the abstract idea of budgeting [akin here to least-cost budgeting or cost minimization] was to be implemented using a communication medium that included telephone networks is another example of narrowing the abstract exception to a field of use or technological environment, that does not integrate the abstract exception into a practical application. Lastly, and equally important, per MPEP 2106.05(h)(vi), limiting to a technological [here telecom] environment the combination of collecting information, analyzing it, and displaying certain results of the collection and analysis [here mapp[ed] the least-cost wholesale plan to the retail plan] is yet another example of narrowing the abstract exception to a field of use or technological environment, that does not integrate the abstract exception into a practical application.
More to the point, the alleged benefits in avoiding the customer having ''very heavy losses due to overage payments to the MNO" [provider] or "unnecessarily paying more to the MNO'' [provider] as argued by Applicant at Remarks 08/11/2025 p.6 ¶5 last sentence with respect to the current Original Specification ¶ [0005], would at most represent an ineligible, entrepreneurial and abstract result. Yet, MPEP 2106.05(a) II is clear that an improvement in the abstract exception itself is not the same as improvement in actual technology. Similarly MPEP 2106.04 I cites “Myriad, 569 U.S. at 591, 106 USPQ2d at 1979” to stress that even a “groundbreaking, innovative, or even brilliant discovery does not by itself satisfy the §101 inquiry”. Based on these findings, the Examiner submits, in the arguendo, that even a groundbreaking, innovative or brilliant system, method and product to allow the customer to avoid ''very heavy losses due to overage payments to the MNO" [provider] or "unnecessarily paying more to the MNO'' [provider] would still be abstract and ineligible. Simply put, when tested per MPEP 2106.04(a)(2) II A, the features argued by the Applicant above would still represent a fundamental economic practice or principle and/or building block of modern economy which still falls well-within the realm of the abstract exception. The “Myriad” rationale supra was also corroborated by SAP Am, Inc v InvestPic as cited by MPEP 2106.04(a)(2) I. C (i). Specifically, in SAP Am Inc v InvestPic, LLC, 898 F.3d 1161, 127 U.S.P.Q.2d 1597 (Fed. Cir. 2018), the Federal Circuit clarified that “even if one assumes that the techniques claimed are groundbreaking, innovative, or even brilliant those features are not enough for eligibility because their innovation is innovation in ineligible subject matter. An advance of that nature is ineligible for patenting”. “no matter how much of an advance in the field the claims [would] recite, the advance [would still] lie entirely in the realm of abstract ideas with no plausibly alleged innovation in non-abstract application realm”. Thus here, no matter how much of an advance in the field of cost minimization, the claims would provide, such advance in avoiding heavy losses due to overage payments to the MNO" [provider] or "unnecessarily paying more to the MNO'' [provider] as alleged by Applicant at Remarks 08/11/2025 p.6 ¶5-¶6 would remain an ineligible advanced in the realm of the abstract exception.
Moreover here, “the one or more processors” and “application programming interface” when more granularly tested at Step 2A prong two of the analysis, represent mere invocation of machinery to apply the already identified abstract idea such as use of a computer or other machinery for economic or other tasks (e.g. to receive, store, transmit data) as tested per MPEP 2106.05(f)(2) I ¶ , 1st sentence, including applying a business method on a general purpose computer [MPEP 2106.05(f)(2) i] and requiring use of software [akin here to API] to tailor information and provide it to the user on a generic computer [MPEP 2106.05(f)(2) v]. The same rationale applies to the automation of the abstract concepts, recited here as “automatically switching the customer from the initial wholesale plan to the least-cost wholesale plan and mapping the least-cost wholesale plan to the retail plan” at independent Claims 1,10. Specifically, MPEP 2106.05(f)(2) (iii) finds that when the increased in speed in the process comes solely from the capabilities of the general-purpose computer, such invocation of computers or machinery as a tool merely applies the abstract exception without integrating it into a practical application. This if further corroborated by MPEP 2106.05(a) I which cites Credit Acceptance Corp. v. Westlake Services, 859 F.3d 1044, 1055, 123 USPQ2d 1100, 1108-09 (Fed. Cir. 2017), LendingTree, LLC v. Zillow, Inc., 656 Fed. App'x 991, 996-97 (Fed. Cir. 2016) to state that automation of commercial or economic practices or principles are insufficient to show an improvement in computer-functionality. In a similar vein, MPEP 2106.05(a) I cites FairWarning IP, LLC v. Iatric Sys., 839 F.3d 1089, 1095, 120 USPQ2d 1293, 1296 (Fed. Cir. 2016) to state that accelerating a process of analyzing audit log data when the increased speed comes from the capabilities of a general-purpose computer, does not represent improvement in computer-functionality. Rather when tested per MPEP 2106.05(f)(2) (iii) citing the same FairWarning IP, LLC v. Iatric Sys., 839 F.3d 1089, 1095, 120 USPQ2d 1293, 1296 (Fed. Cir. 2016); the process for monitoring audit log data that is executed on a general-purpose computer where the increased speed in the process comes solely from the capabilities of the general-purpose computer, is an example of applying the abstract idea, which does not integrate it into a practical application. Indeed, looking closer at FairWarning as cited by both MPEP 2106.05(f)(2) and MPEP 2106.05(a), the Examiner finds that the claims in Fairwarning were argued to provide a system that allowed for access, compilation and combination of disparate information sources that made it possible to generate a full picture of a user's activity, identity, frequency of activity, and the like in a computer environment. Yet, the Federal Circuit ruled that: “The mere combination of data sources, however, does not make the claims patent eligible”. “As we have explained, "merely selecting information, by content or source, for collection, analysis, and [announcement] does nothing significant to differentiate a process from ordinary mental processes, whose implicit exclusion from § 101 undergirds the information-based category of abstract ideas" citing Elec. Power, 830 F.3d 1350, [2016 BL 247416], 2016 WL 4073318, at *4. It would then follow that here, recitation of “automatically switching the customer from the initial wholesale plan to the least-cost wholesale plan and mapping the least-cost wholesale plan to the retail plan” would similarly not render the claims patent eligible.
Thus, such degree of computerization, a conferred by “one or more processors”, “application programming interface”, and automation does not integrate the abstract exception into a practical application, and, for the same reasons, Examiner further submits in the arguendo, that none of these additional computer-based elements provide significantly more. Thus, the claims are patent ineligible.
Response to Applicant’s 102/103 rebuttal Arguments
Applicant’s prior art arguments have been considered but moot in view of new grounds of rejection.
A. Remarks 08/11/2025 p.7 ¶3 -p.8 ¶4 argues Ward does not teach:
- receiving a selection of a retail plan by a customer from a plurality of retail plans, the retail plan limiting data usage and being offered by a mobile virtual network operator (MVNO).
Examiner now relies on Kim et al US 20220122149 A1 hereinafter Kim, to teach or suggest:
- receiving a selection of a retail plan by a customer from a plurality of retail plans, the retail plan limiting data usage and being offered by a mobile virtual network operator (MVNO).
(Kim ¶ [0008] usage plans are often selected based upon a user's expected use of the device across a network, which is often difficult to accurately track with ease. Typically the user estimates intended use amount, in time and/or bandwidth [or data usage], then begins to use the device without checking daily usage amounts or similar. As a result, a user receive a billing from a network operator where the user's use of the device on the network exceeded the [limited or] intended use or [usage], resulting in overages and network use costs that exceed the anticipated amount. To this end, Kim ¶ [0031] 1st sentence: is assessing the existing rate plan and Kim at ¶ [0040] 2nd sentence is similarly analyzing the existing rate plan. ¶ [0060] 4th sentence: the customer rate plans described herein may be a rate plan between customers and mobile network operator (MNO), (VZW, AT&T, T-Mobile, etc.) and/or a rate plan between customers and mobile virtual network operator (MVNO), (e.g., Aeris, etc.)
B. Remarks 08/11/2025 p.8 ¶5-p.9 ¶2 argues Ward does not teach
- selecting, by the one or more processors, an initial wholesale plan of the plurality of wholesale plans offered by the MNO for use of a network and mapping the initial wholesale plan to the retail plan of the customer
Examiner now relies on Kim et al US 20220122149 A1 hereinafter Kim, to teach or suggest:
- selecting, by the one or more processors, an initial wholesale plan of the plurality of wholesale plans offered by the MNO for use of a network and mapping the initial wholesale plan to the retail plan of the customer (Kim Fig.5A, ¶ [0059] 2nd sentence: carrier rate plan (CaRP) rule inference 506 receives available carrier rate plans (CaRP) 502 via step 501. Similarly, Fig.5B, ¶ [0063] 2nd sentence: customer rate plan (CuRP) rule inference 506’ receives available customer rate plans (CuRP) 502’ via step 501’. ¶ [0060] 4th sentence: Customer Rate Plan (CuRP) defined as a rate plan between customers and mobile network operator (MNO), (e.g. VZW, AT&T, T-Mobile). Thus, the customer rate plans described herein may be a rate plan between customers and mobile network operator (MNO), (e.g., VZW, AT&T, T-Mobile, etc.) and/or a rate plan between customers and mobile virtual network operator (MVNO), (e.g., Aeris, etc.). Then, at ¶ [0031] 1st sentence: at 206, in relation to use characteristics and user rate plan characteristics, an analysis to determine an optimal rate plan is undertaken by assessing the existing rate plan, the user profile, use characteristics, and available rate plans and options. ¶ [0033] At 210, an assessment is performed to analyze and determine an optimal plan when considering pooled plans is a primary determinant. Based on an analysis by pooled plans, a set of results is determined and preferably stored at 218. The results stored at 218, will be used as input to determine an optimal rate plan choice at 220. The comparison of available rate plans versus use characteristics is intended to yield a determination of a beneficial rate plan for a particular user in view of the compared one or more user characteristics. Similarly, Fig.3 and ¶ [0040], Fig. 4.
Kim ¶ [0067] 3rd - 4th sentences: noting CutOff_1 603 and CutOff_2 605 for Rate_Plan_2 604, … CutOff_N-2 609 and CutOff_N-1 611 for Rate_Plan_N-1 610 etc. as shown in Fig. 6 [below]. For example, CutOff_i serves as the upper bound of Rate_Plan_i and the lower bound of Rate_Plan_i+1.
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Kim Annotated Fig.6 from Original Fig.6 in support of rejection arguments
C. Remarks 08/11/2025 p.9 ¶3-p.9 ¶6 argues Ward is not
- “receiving ... data usage of the network by the customer for a first period of time, where no user-identifiable information is received by the one or more processors”
Examiner now relies on Kim in view of Ismaila Wane US 20200128393 A1 hereinafter Wane
Kim teaches or suggests
- “receiving, at the one or more processors via an application programming interface, data
usage of the network by the customer for a first period of time, ”; (Kim ¶ [0046] 1st sentence: Usage analysis may be based upon usage data collected over a specified or pre-determined time period and may be performed for a particular user. ¶ [0042] 3rd - 4th sentences: assessing the annual use data and determines that the average data use per device owned by the user in months 3, 4, 5 and 6 is 10 MB, across the collective account. The present invention, following assessment, also determines that the average data use per device owned by the user in months 1, 2, and 7-12 is 1 MB, across the collective account. ¶ [0050] 5th sentence, ¶ [0059] 4th sentence, ¶ [0063] 5th sentence, ¶ [0075] 3rd sentence: The predetermined period of time may typically include daily, weekly, monthly, quarterly, semi-annually, yearly)
Wane further teaches or suggests:
- “where no user-identifiable information is received by the one or more processors” as in
“receiving, at the one or more processors via an application programming interface, data usage of the network by the customer for a first period of time, where no user-identifiable information is received by the one or more processors”;
(Wane ¶ [0009] 3rd sentence: empowering consumers to dynamically change cellular networks to extract the best value for mobile communication needs, based on their personal priorities for price, data speed, network quality, etc. ¶ [0010] For local telecom regulators, virtual SIM card technology lowers the barriers to switching for consumers and thereby fosters a healthy and competitive telecommunications landscape in which MNOs and MVNOs compete on price, service quality and innovation. For example at ¶ [0082] 1st-2nd sentences: MNO communicate with MNOHUB server 102. This may be performed through the integration of available secure web services APIs. Specifically, per ¶ [0083] 1st -2nd sentences: With the appropriate terms and conditions and privacy rules, and having the consumer's consent to these agreements before usage of the MS, it may be possible to anonymously record location of origination, destination and duration of calls. The MNOHUB server 102 could then utilize the anonymous data to provide better analytics to the MNOs…).
D. Remarks 08/11/2025 p.9 last ¶-p.10 ¶1 argues it would not be obvious to modify Ward to achieve the claimed invention.
Argument D is moot in view of new grounds of rejection. Specifically here, it would have been obvious to one skilled in the art, before the effective filling date of the claimed invention, to have modified Kim’s “method” / “system” to have included Wane’s teachings in order to have provided an enhanced configuration and analysis of usage of cellular equipment for subscribers of Mobile Network Operators (MNOs) and Mobile Virtual Network Operators (MVNOs) (Wane ¶ [0003] in view of MPEP 2143 G) such as, when necessitated by market forces (Wane ¶ [0004]- ¶ [0005] and/or ¶ [0083] 2nd sentence in view of MPEP 2143 F). The predictability of such modification would have been further corroborated by the broad level of skills of one of ordinary skills in the art as demonstrated by Kim ¶¶ [0029], [0058], [0104] in view of Wane ¶ [0121]. Additionally, or alternatively, the claimed invention could have also been viewed as a mere combination of old elements in a similar field of endeavor, and in the combination each element merely would have performed the same data transmission, processing and anonymizing functions of usage data such as data speed or bandwidth, duration of calls etc. These functions would have been performed the same singly, as in combination. Thus, it would have been reasoned that, given the existing technical ability to combine the elements as evidenced by Kim in view of Wane, one of ordinary skill in the art would have recognized that the to be combined elements would have fitted together like pieces of a puzzle in a logical, complementary, technologically feasible and/or economically desirable manner. Thus, it would have been reasoned that the results of the combination would have been predictable (MPEP 2143 A).
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 1-10 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, here abstract idea) without significantly more. The claims recite describe or set forth “determining a least-cost wholesale plan for the customer” as a form of cost minimization by adjusting retail plan that maps to various wholesale plans (that they were never offered) to minimize the customer's monthly costs as admitted by Applicant at Remarks 08/11/2025 p.5 ¶6, 3rd–5th sentences. Such “least-cost “ determine[ation] or cost minimization remains an example of fundamental economic practices and/or commercial interactions [MPEP 2106.04(a)(2) II], including but not limited to offer-based optimization4 and/or offering media in exchange5 for a selective condition (i.e. here “usage”). Specifically, such offer-based optimization and/or offering media based on consumption behavior or “usage” is/are described or set forth here as “estimating a future monthly data usage of the network by the customer”; “determining a least-cost wholesale plan of the plurality of wholesale plans offered by the MNO for the customer”, “switching the customer from the initial wholesale plan to the least-cost wholesale plan” at independent Claims 1,10, “wherein determining the least-cost wholesale plan includes comparing: (i) a cost of a plan having a lower allocation than an estimated future monthly usage and overage costs based on the estimated future monthly usage to (ii) a cost of a plan having a higher allocation than the estimated future monthly usage” at dependent Claim 6.
Equally important, such fundamental economic practices and/or commercial interactions fall within the broader abstract grouping of Certain Methods of Organizing Human Activities.
For example, MPEP 2106.04(a)(2) II B iii. cites OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1362-63, 115 USPQ2d 1090, 1092 (Fed. Cir. 2015) to state that offer-based price optimization, pertains to marketing and thus falls within the abstract commercial interactions.
Similarly, MPEP 2106.04(a)(2) II A cites the same OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1364, 115 U.S.P.Q.2d 1090, 1092 (Fed Cir. 2015) to analogously state that a new method of price optimization was found to be an abstract, fundamental economic concept.
Examiner, tests the claims against to the fundamental economic practices and/or commercial interactions of MPEP 2106.04(a)(2) II A and B supra, and finds that here, the fundamental economic principles/practices and/or commercial interactions are set forth by: “selecting” “an initial wholesale plan of the plurality of wholesale plans offered by the MNO” [mobile network operator] “for use of a network and mapping the initial wholesale plan to the retail plan of the customer”; “receiving” “data usage of the network by the customer for a first period of time”; “estimating a future monthly usage of the network by the customer”; “determining a least-cost wholesale plan of the plurality of wholesale plans offered by the MNO for the customer”; “and” “switching the customer from the initial wholesale plan to the least-cost wholesale plan and mapping the least-cost wholesale plan to the retail plan” (Claims 1,10); “wherein estimating future monthly usage of the network includes determining which of a plurality of categories the customer belongs in based on a number of days since the initial wholesale plan was mapped to the retail plan” (dependent Claim 2), “wherein estimating future monthly usage of the network includes determining whether the customer is in a pooled plan or a non-pooled plan” (dependent Claim 3), “i) a cost of a plan having a lower allocation than an estimated future monthly usage and overage costs based on the estimated future monthly usage to (ii) a cost of a plan having a higher allocation than the estimated future monthly usage” (dependent Claim 6).
Examiner also submits that the term fundamental not used in the sense of necessarily being old or well-known, but rather as a building block of modern economy as defined by MPEP 2106.04(a)(2) II A at ¶2, with narrow laws [i.e. abstract idea] of limited applications still ineligible, per MPEP 2106.04 I, ¶3, 5th sentence. Here, no matter of its limited applicability to a telecommunication environment and its associated market participants such as “mobile virtual network operator (MVNO)”, “mobile network operator (MNO)” and “customer” of “network” “use” or consumption, the receiving selections of a retail plan by a customer, then receiving, an initial wholesale plan offered by the [provider], receiving, data usage [or consumption or demand] of a customer, and after estimating the future data usage, switching the customer to a least-cost wholesale plan, remain commercial and/or fundamental economic practices or principles of consumption/demand to offer/supply, such as price discovery or mapping among supply/offers and consumption/demand of Certain Methods of Organizing Human Activities [MPEP 2106.04(a)(2) II].
Also, as stated by the same MPEP 2106.04(a)(2) II at ¶6, 4th sentence, certain activity between a person and a computer, including providing anonymous shopping, may still fall within "certain methods of organizing human activity". Thus here, the fact that the “least-cost wholesale plan of the plurality of wholesale plans”; is determin[ed] based on “usage of the network by the customer for a first period of time” receiv[ed] “at the one or more processors via an application programming interface”, “where no” [thus anonymous] “user-identifiable information is received by the one or more processors”; does not preclude the claims from to recite, describe or set forth the abstract commercial and/or fundamental economic practices of organizing human activity. Further, aside from a potential issue of limited patentable weight, as introduced by the where[in] limitation: “where no user-identifiable information is received by the one or more processors” as amended at each of Claims 1,10, said claims also provide no details on how to achieve the contested non-identifiable data gathering. Even if it did, the Examiner submits in the arguendo, that simple instances of encoding [interpreted as anonymizing] information, if hypothetically claimed, would still set forth the abstract exception as revealed by MPEP 2106.04 II A 2 ¶3.
Also, the above fundamental economic practices and/or commercial interactions also appear to follow an observation, evaluation and judgement of the equally abstract mental processes [MPEP 2106.04(a)(2) III] and/or mathematical relationships expressed in words6 [MPEP 2106.04(a)(2) I] set forth here by: “wherein estimating future monthly usage at least one time per day” (dependent Claim 4), “wherein determining the least-cost wholesale plan includes determining a pool adjustment factor (PAF)” (dependent Claim 5), “wherein determining the least-cost wholesale plan includes comparing: (i) a cost of a plan having a lower allocation than an estimated future monthly usage and overage costs based on the estimated future monthly usage to (ii) a cost of a plan having a higher allocation than the estimated future monthly usage” (dependent Claim 6), “wherein determining a least-cost wholesale plan for the customer includes generating a plurality of cost datapoints utilizing multiple cost functions to estimate both individual and an overall wholesale cost” (dependent Claim 7), “wherein generating a plurality of cost datapoints is done daily” (dependent Claim 8), “monthly” (dependent Claim 9).
Therefore, the Examiner has provided a preponderance of legal evidence showing the claims’ character as a whole is undeniably abstract.
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This judicial exception is not integrated into a practical application because per Step 2A prong two, the individual or combination of the additional, computer-based elements is/are found to merely apply the already recited abstract idea [MPEP 2106.05(f)] and/or narrow it to a field of use or technological environment [MPEP 2106.05(h)]. Here, the additional elements are the “instructions” of a “storage medium” executed by “one or more processors” at independent Claims 1,10, “application programming interface” at independent Claims 1,10. Here, when tested per MPEP 2106.05(f)(2) such additional, computer-based elements, represent mere invocation of machinery to apply the already identified abstract idea, such as use of a computer or other machinery for economic or other tasks (e.g. to receive, store, or transmit data) [MPEP 2106.05(f)(2) I ¶ ,1st sentence], including applying a business method on a general purpose computer [MPEP 2106.05(f)(2) i], monitoring audit log data executed on a general-purpose computer [MPEP 2106.05(f)(2) iii], and requiring the use of software [akin here to “application programming interface”] to tailor information and provide it to the user on a generic computer [MPEP 2106.05(f)(2) v]. Such as aforementioned business method [here identified above] and mathematical algorithm [here estimate[ed] usage and determined least-coast] to use a machinery or computer7 [here “one or more processors” etc.] in its ordinary capacity for economic tasks [here identified above] or other tasks to store, receive and transmit data8. Such receiving and transmitting are reflected here by capabilities of “one or more processors” “receiving a selection of a retail plan by a customer”; “receiving data usage of the network by the customer for a first period of time”; at independent Claim 10.
With respect to the capabilities of the “processors” “selecting an initial wholesale plan of the plurality of wholesale plans offered by a network operator for use of a network and mapping the initial wholesale plan to the retail plan of the customer”; “mapping the least-cost wholesale plan to the retail plan”, Examiner also points to MPEP 2106.05(f)(2) iii. which cites “FairWarning IP, LLC v. Iatric Sys., 839 F.3d 1089,1095,120 USPQ2d 1293,1296 (Fed. Cir. 2016)” to state that a process of monitoring audit log data executed on a general-purpose computer, is another example of applying the abstract idea. Specifically, “FairWarning” contended that its system allowed for accessing, compilation and combination of disparate information sources that made it possible to generate a full picture of a user's activity, identity, frequency of activity, and the like in a computer environment. Yet, the Federal Circuit found that mere combination of data sources, does not make the claims patent eligible. Specifically, it ruled that merely selecting information, by content or source, for collection, analysis, and [announcement] does nothing significant to differentiate a process from ordinary mental processes, whose implicit exclusion from 101 undergirds the information-based category of abstract ideas9.
MPEP 2106.05(f)(2) v. similarly cites Intellectual Ventures I LLC v. Capital One Bank (USA), 792 F.3d 1363,1370-71,115 USPQ2d 1636,1642 (Fed. Cir. 2015) to state that requiring use of software to tailor information and provide it to user on a generic computer, is another example of applying the abstract idea, which does not integrate it into a practical application. Here, the recitation of “via an application programming interface” “receiving” “data usage of the network by the customer for a first period of time”, and the capabilities of the “one or more processors” in “switching the customer from the initial wholesale plan to the least-cost wholesale plan and mapping the least-cost wholesale plan to the retail plan” at independent Claims 1, 10, could be argued as such use of computer to tailor [plan] information and provide it to a user, which does not integrate it into a practical application
In a similar vein, MPEP 2106.05(h) cites Electric Power Group, LLC v. Alstom S.A., 830 F.3d 1350, 1354, 119 USPQ2d 1739, 1742 (Fed. Cir. 2016) to state that limiting the combination of collecting information, analyzing it, and displaying certain results of collection and analysis [here identified and mapped above] to a technological environment, is an example of limiting the identified abstract idea to a field of use or technological environment which again does not integrate it into a practical application. Step 2A prong two. Here, such technological environment is represented by use of the instruct[ed] “one or more processors” and “application programming interface” at independent Claims 1,10, to executed the combination of collection, analysis and display of certain results [her least cost plan] of the collection and analysis for a customer with respect to telecommunication operators such as “a mobile virtual network operator (MVNO)” and “mobile network operator (MNO)”
Analogously, MPEP 2106.05(h) cites FairWarning v. Iatric Sys., 839 F.3d 1089, 1094-95, 120 USPQ2d 1293, 1295 (Fed. Cir. 2016) to state that specifying that the abstract idea of monitoring audit log data relates to transactions or activities executed in a computer environment is a requirement that merely limits the claims to the computer field, which does not integrate the abstract idea into a practical application. It would then follow that here, narrowing the above, abstract economic and/or commercial transactions to “at the one or more processors via an application programming interface” “receiving” “data usage of the network by the customer for a first period of time” at independent Claims 1,10; would also represent a requirement that merely limits the abstract idea to the computer field, which again does not integrate the abstract idea into a practical application. Similarly, MPEP 2106.05(h) x cites buySAFE Inc v Google, Inc 765 F.3d 1350,1354, 112 USPQ2d 1093,1095-96 (Fed Cir 2014) to state that performance of a transaction (a) using a computer that receives and sends information over a network, or (b) be limited to guaranteeing online transactions, represent limitations that limit the use of the abstract idea to computer environments, which would not integrate such abstract idea into a practical application. It would then follow that here, the computerized capabilities of the “processors” for “receiving a selection of a retail plan by a customer”; “selecting an initial wholesale plan of the plurality of wholesale plans offered by the MNO for use of a network and mapping the initial wholesale plan to the retail plan of the customer”; “receiving usage of the network by the customer for a first period of time”; for subsequent “switching the customer from the initial wholesale plan to the least-cost wholesale plan and mapping the least-cost wholesale plan to the retail plan” at independent Claims 1,10, would also represent an example of narrowing the abstract idea to a network-based environment.
Thus here, there is preponderance of legal evidence for the additional, computer-based elements, merely applying the abstract idea [MPEP 2106.05(f)] and/or narrow it to a technological environment or filed of use [MPEP 2106.05(h)], and thus not integrating it into a practical application.
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The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because per above, the additional computer-based elements merely apply the already recited abstract idea and link use of abstract idea to a field of use or technological environment. Specifically, Examiner follows MPEP 2106.05 (d) II and carries over the findings tested per MPEP 2106.05 (f),(h) to submit that the additional computer-based elements also do not provide significantly more. Even assuming arguendo, that further evidence would be required to demonstrate conventionality of the additional, computer-based elements, Examiner would also point as evidence to the same OIP Techs., 788 F.3d at 1362-63, 115 USPQ2d at 1092-93, this time cited by MPEP 2106.05(d) demonstrating conventionality of computer components gathering statistics, determining an estimated outcome and presenting offers. Here, the gathering of statistics, is reflected in capabilities of the “one or more processors” to collect or “receiving usage of the network by the customer for a first period of time” at independent Claim 10. Also here, the determining of an estimated outcome is reflected in the capabilities of the “one or more processors” “estimating a future monthly usage of the network by the customer” at independent Claim 10. Also, presenting offers is reflected in the capabilities of the “switching the customer from the initial wholesale plan to the least-cost wholesale plan and mapping the least-cost wholesale plan to the retail plan” at independent Claim 10.
Thus, the capabilities of the instruct[ed] “one or more processors” to perform such computerized functions would equally represent well-understood, routine, conventional activities, and thus would not provide significantly more than what was already found as the abstract exception.
Examiner also points to MPEP 2105.05(d) to show the conventionality of electronic recordkeeping10 as well as receiving / transmitting data including utilizing an intermediary computer to forward information11, performing repetitive calculations12, arranging a hierarchy of groups, sorting information13 as examples that do not provide significantly more. Here, the electronic recordkeeping as well as receiving or transmitting data are reflected in the capabilities of the current “one or more processors” “receiving a selection of a retail plan by a customer, the retail plan limiting data usage and being offered by a mobile virtual network operator (MVNO)”; “receiving”, “information from a mobile network operator (MNO) describing a plurality of wholesale plans” at independent Claims 1,10. Here, utilizing an intermediary computer to forward information is reflected by expression “via an application programming interface” “data usage of the network by the customer for a first period of time, where no user-identifiable information is received by the one or more processors” at independent Claims 1,10.
Also here, performing repetitive calculations and arranging a hierarchy of groups, sorting information, are reflected in the capabilities of the “one or more processors” “estimating a future monthly data usage of the network by the customer”; “determining a least-cost wholesale plan of the plurality of wholesale plans offered by the MNO for the customer; and switching the customer from the initial wholesale plan to the least-cost wholesale plan and mapping the least-cost wholesale plan to the retail plan” at independent Claims 1,10 further abstractly narrowed at dependent Claims 2-6.
If necessary, Examiner would also point as evidence for conventionality, to the high level of generality of the additional elements read in light of the Applicant’s own Original Disclosure as follows:
- Original Specification ¶ [0059] reciting at high level of generality: “Referring to Fig.4, a system may be seen. The system may include one or more processors 412. The system may include a non-transitory computer-readable storage medium 414 containing instructions that, when executed, configure the one or more processors to perform a method for monthly revenue commit cost optimization as disclosed herein. The one or more processors may be on a single device 410 (such as a cloud-based server), or may be on multiple devices. The system may receive information from a wholesale MNO 420. The information may include details relating to wholesale plans offered by the MNO. The device(s) 410 of the system may receive information from devices belonging to a user (such as first user device 430 or a second user device 432). The information may be received directly (e.g., first user device 430 is shown communicating directly with device 410) or indirectly (e.g., second user device 432 is shown communicating with device 410 via an