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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on January 2, 2026 has been entered.
Status of Claims
This office action is in response to arguments and amendments entered on January 2, 2026 for the patent application 18/381,021 filed on October 17, 2023. Claims 1 and 11 are amended. Claims 4 and 14 are cancelled. Claims 1-3, 5-13 and 15-22 are pending. The first office action of December 1, 2023; the second office action of February 8, 2024; the third office action of May 15, 2024; the fourth office action of December 6, 2024; the fifth office action of March 28, 2025; the sixth office action of July 22, 2025; the seventh office action of September 8, 2025; and the eighth office action of November 20, 2025 are fully incorporated by reference into this Non-Final Office Action.
Claim Rejections - 35 USC § 101
35 U.S.C. § 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-3, 5-13 and 15-22 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.
Step 1 – “Statutory Category Identification”
Claim 1 is directed to “an apparatus” (i.e. a machine); and claim 11 is directed to “a method” (i.e. a process), hence the claims are directed to one of the four statutory categories (i.e. process, machine, manufacture, or composition of matter). In other words, Step 1 of the subject-matter eligibility analysis is “Yes.”
Step 2A, Prong 1 “Abstract Idea Identification”
However, the claims are drawn to an abstract idea of “modifying educational content,” in the form of “certain methods of organizing human activity,” in terms of managing personal behavior or relationships or interactions between people (including social activities, teaching and following rules or instructions), or reasonably in the form of “mental processes,” in terms of processes that can be performed in the human mind (including an observation, evaluation, judgement or opinion). Regardless, the claims are reasonably understood as either “certain methods of organizing human activity” or “mental processes,” which require the following limitations:
Per claim 1:
“receiving user data including information about a user;
generating a digital avatar based on the user data by utilizing a digital avatar model, wherein the digital avatar model is trained using a plurality of user data items and digital avatar training data comprising information from a plurality of pre-existing digital avatars from a digital avatar database;
communicating a first set of educational content comprising a visual element data structure associated with a visual element, wherein the visual element data structure is configured to execute at least one rule for displaying the visual element, to a user;
receiving a reaction datum comprising image data from the user based on an interaction between the user and the digital avatar;
determining a content modification model as based on the reaction datum, wherein the content modification model comprises a toxicity reduction model, wherein the toxicity reduction model is configured to remove portions of the first set of educational content, and wherein the removed portions of the first set of educational content comprise profanity and gory photographs,
wherein the toxicity reduction model comprises a toxicity reduction machine learning model trained with training data
comprising a plurality of educational content data correlated with a plurality of educational content with undesirable element data, and wherein is further configured to:
receive a content request;
collect a second set of educational content based on the content request;
determine a filtered second set of educational content based on the second set of educational content and the content modification model, wherein the filtered second set of education content is altered as a function of the toxicity reduction model;
determine an updated visual element data structure as a function of the second set of educational content and the filtered second set of education content;
communicate the filtered second set of educational content,
wherein records a user reaction datum to the filtered second set of education content and
wherein sends a second communication in accordance with the updated visual element data structure wherein the at least one rule is configured to direct display an altered version of the filtered second set of educational content to the user based on the user reaction datum;
notify the user that changes have been made to the filtered second set of educational content and allow the user to view an original version of the filtered second set of educational content; and
calibrate and train the data structure, such that data associated with the data structure is configured to be modified.”
Per claim 11:
“receiving user data including information about a user;
generating a digital avatar based on the user data by utilizing a digital avatar model, wherein the digital avatar model is trained using a plurality of user data items and digital avatar training data comprising information from a plurality of pre-existing digital avatars from a digital avatar database;
communicating a first set of educational content to a user comprising a visual element data structure associated with a visual element, wherein the visual element data structure is configured to execute at least one rule for displaying the visual element, to a user;
receiving a reaction datum comprising image data from the user based on an interaction between the user and the digital avatar;
determining a content modification model as based on the reaction datum, wherein the content modification model comprises a toxicity reduction model, wherein the toxicity reduction model is configured to remove portions of the first set of educational content, and wherein the removed portions of the first set of educational content comprise profanity and gory photographs,
wherein the toxicity reduction model comprises a toxicity reduction machine learning model trained with training data comprising a plurality of educational content data correlated with a plurality of educational content with undesirable element
receiving a content request;
collecting a second set of educational content based on the content request;
determining a filtered second set of educational content based on the second set of educational content and the content modification model, wherein the filtered second set of education content is altered as a function of the toxicity reduction model;
determining an updated visual element data structure as a function of the second set of educational content and the filtered second set of education content;
communicating the filtered second set of educational content,
wherein which records a user reaction datum to the filtered second set of education content and
wherein sends a second communication in accordance with the updated visual element data structure wherein the at least one rule is configured to direct the user to display an altered version of the filtered second set of educational content to the user based on the user reaction datum;
notify the user that changes have been made to the filtered second set of educational content and allow the user to view an original version of the filtered second set of educational content; and
calibrating and training the data structure such that data associated with the data structure is configured to be modified.”
These limitations simply describe a process of data gathering and manipulation, which is partially analogous to “collecting information, analyzing it, and displaying certain results of the collection analysis” (i.e. Electric Power Group, LLC, v. Alstom, 830 F.3d 1350, 119 U.S.P.Q.2d 1739 (Fed. Cir. 2016)). Hence, these limitations are akin to an abstract idea which has been identified among non-limiting examples to be an abstract idea. In other words, Step 2A, Prong 1 of the subject-matter eligibility analysis is “Yes.”
Step 2A, Prong 2 – “Practical Application”
Furthermore, the claims do not include additional elements that either alone or in combination are sufficient to claim “a practical application” because to the extent that, e.g., “a machine vision system further comprising an image sensor,” “at least a processor,” “a user device” and “an optical sensor,” are claimed, as this is merely claimed to add insignificant extra-solution activity to the judicial exception (e.g., pre-solution activity of data gathering and post-solution activity of presenting data) to (1) a particular technological environment or (2) field of use, per MPEP §2106.05(h); and are applying the judicial exception, or mere instructions to implement an abstract idea on a computer, or merely uses a computer as a tool to perform an abstract idea, per MPEP §2106.05(f). In other words, the claimed “modifying educational content,” is not providing a practical application, thus Step 2A, Prong 2 of the subject-matter eligibility analysis is “No.”
Step 2B – “Significantly More”
Likewise, the claims do not include additional elements that either alone or in combination are sufficient to amount to significantly more than the judicial exception because to the extent that, e.g. “a machine vision system further comprising an image sensor,” “at least a processor,” “a user device” and “an optical sensor,” are claimed, these are a generic, well-known, and conventional data gather computing elements. As evidence that these are generic, well-known, and a conventional data gathering computing elements (or an equivalent term), as a commercially available product, or in a manner that indicates that the additional elements are sufficiently well-known, the Applicant’s specification discloses these in a manner that indicates that the additional elements are sufficiently well-known that the specification does not need to describe the particulars of such additional elements to satisfy 35 U.S.C. § 112(a), per MPEP § 2106.07(a) III (a). As such, this satisfies the Examiner’s evidentiary burden requirement per the Berkheimer memo.
Specifically, the claimed “a machine vision system,” isn’t adequately described in the written description of the specification as originally filed.
Also, “an image sensor,” as described in para. [0037] discloses the following: “In some cases, at least a camera may include an image sensor.” This is reasonably interpreted as an element of a generic computer and/or computer system and provide no details of anything beyond ubiquitous standard equipment.
Likewise, the claimed “at least a processor,” as described in para. [0008] discloses the following: “[0008] Referring now to FIG. 1, an exemplary embodiment of an apparatus 100 modifying educational content is illustrated. Apparatus 100 may include a computing device. Apparatus 100 may include a processor. Processor may include, without limitation, any processor described in this disclosure. Processor may be included in a computing device. Computing device may include any computing device as described in this disclosure, including without limitation a microcontroller, microprocessor, digital signal processor (DSP) and/or system on a chip (SoC) as described in this disclosure. Computing device may include, be included in, and/or communicate with a mobile device such as a mobile telephone or smartphone.” This is also reasonably interpreted as an element of a generic computer and/or computer system and provide no details of anything beyond ubiquitous standard equipment.
Finally, the claimed “a user device” and “an optical sensor,” as described in para. [0020] discloses the following: “[0020] Still referring to FIG. 1, user device 120 may include a device operated by a user, such as a smartphone, tablet, laptop computer, desktop computer, smartwatch, vehicle media player, or digital assistant device. In some embodiments, a user may request a set of educational content from apparatus 100 using user device 120. In some embodiments, apparatus 100 may communicate a set of educational content to user device 120. In some embodiments, apparatus 100 communicating a set of educational content to user device 120 may include configuring user device 120 to communicate the set of educational content to user operating user device 120. Such communication to user may be, in non-limiting examples, in a visual format such as an image or video, or in an audio format. In some embodiments, user device 120 may include a sensor, such as an optical sensor or an audio sensor, and may record a user reaction to a set of educational content.” Again, these are also reasonably interpreted as a generic computer and/or computer system and provide no details of anything beyond ubiquitous standard equipment.
As such, the Applicant’s claimed “a machine vision system further comprising an image sensor,” “at least a processor,” “a user device” and “an optical sensor,” are reasonably understood as generic, well-known, and conventional data gather computing elements. Therefore, these elements provide no details of anything beyond ubiquitous standard equipment and are reasonably understood as not providing anything significantly more. Therefore, Step 2B, of the subject-matter eligibility analysis is “No.”
In addition, dependent claims 2-3, 5-10, 12-13 and 15-22 do not provide a practical application and are insufficient to amount to significantly more than the judicial exception. As such, dependent claims 2-3, 5-10, 12-13 and 15-22 are also rejected under 35 U.S.C. § 101, based on their respective dependencies to claim 1 or 11. Therefore, claims 1-3, 5-13 and 15-22 are rejected under 35 U.S.C. § 101 as being directed to non-statutory subject-matter.
Response to Arguments
The Applicant’s arguments filed on January 2, 2026 related to claims 1-3, 5-13 and 15-22 are fully considered, but are not persuasive.
Rejection of claims under 35 U.S.C. § 101
Step 2A, Prong one
Methods of Organizing Human Activity
The Applicant respectfully argues “Applicant respectfully submits that at least some limitations of claim 1 detailed above, including the features of a "communicate a first set of educational content comprising a visual element data structure associated with a visual element, wherein the visual element data structure is configured to execute at least one rule for displaying the visual element; determine an updated visual element data structure as a function of the second set of educational content and the filtered second set of education content; wherein the user device then sends a second communication in accordance with the updated visual element data structure wherein the at least one rule is configured to direct the user device to display an altered version of the filtered second set of educational content to the user based on the user reaction datum, and calibrate and train the data structure, using the machine learning model, such that data associated with the data structure is configured to be modified" do not amount to organizing human activity as detailed above, and thus at least those limitations should be considered "additional elements" to the alleged abstract idea.
Applicant respectfully submits that at least those limitations of amended claim 1 detailed above should be considered "additional elements" to the alleged abstract idea. Therefore, Applicant respectfully rebuts the assertion that at least some elements of claim 1 recite abstract ideas.”
The Examiner respectfully disagrees. It is worth noting in MPEP §2106 under “II. Certain Methods Of organizing Human Activity,” certain activity between a person and a computer (for example a method of anonymous loan shopping that a person conducts using a mobile phone) may fall within the "certain methods of organizing human activity" grouping. As applied in this case, a person interacting with a computer for “modifying educational content,” reasonably constitutes identifying the Applicant’s claims as an abstract idea in the form of “certain methods of organizing human activity.” As such, the argument is not persuasive.
Mental Processes
The Applicant respectfully argues “Applicant respectfully submits that at least some limitations of currently amended claim 1 of "communicate a first set of educational content comprising a visual element data structure associated with a visual element, wherein the visual element data structure is configured to execute at least one rule for displaying the visual element; determine an updated visual element data structure as a function of the second set of educational content and the filtered second set of education content; wherein the user device then sends a second communication in accordance with the updated visual element data structure wherein the at least one rule is configured to direct the user device to display an altered version of the filtered second set of educational content to the user based on the user reaction datum, and calibrate and train the data structure, using the machine learning model, such that data associated with the data structure is configured to be modified" do not fall within the "mental process" groupings of abstract ideas.
For example, such limitations cannot be performed mentally or with pen and paper. Further, at least such limitations do not recite mental processes because they cannot be practically performed in the human mind. See MPEP 2106.04(a)(2), subsection III.A (discussing SRI Int'l, Inc. V. Cisco Systems, Inc., 930 F.3d 1295, 1303 (Fed. Cir. 2019)). Applicant respectfully submits that at least those limitations of amended claim 1 detailed above should be considered "additional elements" to the alleged abstract idea. Therefore, Applicant respectfully rebuts the assertion that at least some elements of claim 1 recite abstract ideas.”
The Examiner respectfully disagrees. First, actual mental performance of the abstract idea is not required, Further, the MPEP § 2106.04(a)(2)(III)(C) states that “claims can recite a mental process even if they are claimed as being performed on a computer” and that “examiners should review the specification to determine if the claimed invention is described as a concept that is performed in the human mind and Applicant is merely claiming that concept performed 1) on a generic computer, or 2) in a computer environment, or 3) is merely using a computer as a tool to perform the concept. In these situations, the claim is considered to recite a mental process.” In the present case, the independent claim limitation performs steps that are performed on a generic “user device” to further provide a solution in a computer environment, and merely uses a computer as a tool to perform the concept. As such, the argument is not persuasive.
Method for Training
The Applicant respectfully argues “Further, examples of claims that do not recite an abstract idea issued with or after the 2019 PEG are found at least in Example 39 (Method for Training a Neural Network for Facial Detection)." October Update, p. 7.
Specifically, Example 39 illustrates a patent eligible claim that recites: (Subject Matter Eligibility Examples: Abstract Ideas, pgs. 8-9)
A computer-implemented method of training a neural network for facial detection
comprising:
collecting a set of digital facial images from a database;
applying one or more transformations to each digital facial image including
mirroring, rotating, smoothing, or contrast reduction to create a modified set of
digital facial images;
creating a first training set comprising the collected set of digital facial images,
the modified set of digital facial images, and a set of digital non-facial images;
training the neural network in a first stage using the first training set;
creating a second training set for a second stage of training comprising the first
training set and digital non-facial images that are incorrectly detected as facial
images after the first stage of training;
and training the neural network in a second stage using the second training set.
The Explanation in the Guidance states:
The claim does not recite any of the judicial exceptions enumerated in the 2019
PEG. For instance, the claim does not recite any mathematical relationships,
formulas, or calculations. While some of the limitations may be based on
mathematical concepts, the mathematical concepts are not recited in the claims.
Further, the claim does not recite a mental process because the steps are not
practically performed in the human mind. Finally, the claim does not recite any
method of organizing human activity such as a fundamental economic concept
or managing interactions between people. Thus, the claim is eligible because it
does not recite a judicial exception. (Id. at pg. 9, Emphasis Added.).
Further, the USPTO recently clarified the difference between claims that "recite" an abstract idea and claims that just "involve" an abstract idea in a Memorandum to Technology Center 3600. USPTO, Memorandum to Tech. Centers 2100, 2600, and 3600 (August 4, 2025).
Applicant respectfully submits that some of the limitations of claim 1 detailed above are substantially analogous to those of Example 39 because, like Example 39 that utilizes a first training data set and a second training data set based on the first one to iteratively training a neural network, the steps recited in amended claim 1 disclose "calibrate and train the data structure, using the machine learning model, such that data associated with the data structure is configured to be modified".
Further, analogous to Example 39, claim 1 does not recite any mathematical relationships, formulas, or calculations.
Applicant respectfully submits that at least those limitations of amended claim 1 detailed above should be considered "additional elements" to the alleged abstract idea. Therefore, Applicant respectfully rebuts the assertion that at least some elements of claim 1 recite abstract ideas.”
The Examiner respectfully disagrees. First, the Applicant’s claims are being examined in Technology Center 3700, not Technology Center Centers 2100, 2600, and 3600.
Second, although “the examples” consist of hypothetical cases that may parallel Supreme Court decisions and Federal Circuit decisions, the examples are not considered precedential and are not fully considered as binding precedent on the USPTO. That being said, the Applicant’s argument with regard to “Example 39” does not super cede the Examiner’s subject-matter eligibility analysis using precedential Supreme Court decisions and Federal Circuit decisions.
Finally, the Applicant’s claims clearly read on “collecting information, analyzing it, and displaying certain results of the collection analysis” (i.e. Electric Power Group, LLC, v. Alstom, 830 F.3d 1350, 119 U.S.P.Q.2d 1739 (Fed. Cir. 2016)). Specifically, the multiple steps of “receiving … data,” are analogous to “collecting information.” The steps of “generating…based on a model,” and “determining…” are analogous to “analyzing it.” Finally, the steps of “communicating…,” and “calibrating…” are outputs that are analogous to “displaying certain results of the collection analysis.” As such, the argument is not persuasive.
Step 2A, Prong two
The Applicant respectfully argues “Applicant respectfully submits that, at least as amended, representative claim 1 incorporates the alleged abstract idea into a practical application.
First, and as noted above, Applicant respectfully submits that some limitations of currently amended claim 1 of "communicate a first set of educational content comprising a visual element data structure associated with a visual element, wherein the visual element data structure is configured to execute at least one rule for displaying the visual element; determine an updated visual element data structure as a function of the second set of educational content and the filtered second set of education content; wherein the user device then sends a second communication in accordance with the updated visual element data structure wherein the at least one rule is configured to direct the user device to display an altered version of the filtered second set of educational content to the user based on the user reaction datum, and calibrate and train the data structure, using the machine learning model, such that data associated with the data structure is configured to be modified" do not fall within the "mental process" groupings of abstract ideas.”
The Examiner respectfully disagrees. This argument is repetitive and derivative of an argument asked and answered above. As such, the argument continues to be unpersuasive.
The Applicant respectfully argues “Second, Applicant respectfully submits, that the claims have to be considered "as a whole" for Step 2A, Prong Two as noted in the Memorandum to Technology Center 3600. USPTO, Memorandum to Tech. Centers 2100, 2600, and 3600 (August 4, 2025).”
The Examiner respectfully disagrees. This argument is repetitive and derivative of an argument asked and answered above. As such, the argument continues to be unpersuasive.
The Applicant respectfully argues “Thirdly, a claim reciting an abstract idea is not directed to that abstract idea if incorporates the abstract idea in a practical application. MPEP 2106.04(d) "A claim that integrates a judicial exception into a practical application will apply, rely on, or use the judicial exception in a manner that imposes a meaningful limit on the judicial exception, such that the claim is more than a drafting effort designed to monopolize the judicial exception." Id. "In determining the eligibility of respondents' claimed process for patent protection under § 101, their claims must be considered as a whole." Diamond V. Diehr, 450 U.S. 175, 188 (1981). Therefore, the question is whether the claims as a whole "focus on a specific means or method that improves the relevant technology or are instead directed to a result or effect that itself is the abstract idea and merely invoke generic processes and machinery" McRO, Inc. V. Bandai Namco Games Am. Inc., 837 F.3d 1299, 1314 (Fed. Cir. 2016).”
The Examiner respectfully disagrees. The Applicant’s claims are not considered a “Practical Application,” because the claims do not provide any of the following:
• An improvement in the functioning of a computer, or an improvement to other technology or technical field, as discussed in MPEP §§ 2106.04(d)(1) and 2106.05(a);
• Applying or using a judicial exception to effect a particular treatment or prophylaxis for a disease or medical condition, as discussed in MPEP § 2106.04(d)(2);
• Implementing a judicial exception with, or using a judicial exception in conjunction with, a particular machine or manufacture that is integral to the claim, as discussed in MPEP § 2106.05(b);
• Effecting a transformation or reduction of a particular article to a different state or thing, as discussed in MPEP § 2106.05(c); and
• Applying or using the judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment, such that the claim as a whole is more than a drafting effort designed to monopolize the exception, as discussed in MPEP § 2106.05(e).
Furthermore, there are also several factors that reasonably explain that the Applicant’s claims are not indicative of integration into a practical application, which include:
• 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 discussed in MPEP § 2106.05(f);
• Adding insignificant extra-solution activity to the judicial exception, as discussed in MPEP § 2106.05(g); and
• Generally linking the use of a judicial exception to a particular technological environment or field of use, as discussed in MPEP § 2106.05(h).
Here, the Applicant’s claims are not providing any technological advancement as described in the first five bulleted factors and, as described above in the rejection, the Applicant’s claims are merely claimed to use a computer as a tool to perform an abstract idea and to generally link the use of a judicial exception to a particular technological environment or field of use. As such, the argument is not persuasive.
The Applicant respectfully argues “The July 2024 Guidelines teach that integration of a judicial exception into a practical application may be achieved when "[(1)] the specification set[s] forth an improvement in the reflect[s] the disclosed improvement" (July 2024 Subject technology[;] and[, (2)] the claim Matter Eligibility Guidelines, p. 12). The July 2024 Guidelines show that Example 47 claim 3 integrates the judicial exception into a practical application because (1) the specification teaches an improvement to network security "by acting in real time to proactively prevent network intrusions"; and (2) "[t]he claimed invention reflects this improvement in the field of network intrusion detection". (July 2024 Subject Matter Eligibility Guidelines, p. 12).
Specific examples of claims that are eligible under 35 U.S.C. § 101 are found in at least Example 47 (Artificial Neural Network for Anomaly Detection - claim 1 and 3) presented with the July 2024 Subject Matter Eligibility Update. Example 47 illustrates the application of the eligibility analysis to claims that recite limitations specific to artificial intelligence, particularly the use of an artificial neural network to identify or detect anomalies.
With reference to Example 47 and claim 3, the July 2024 Subject Matter Eligibility Update states with respect to (1) above: "according to the background section, existing systems use various detection techniques for detecting potentially malicious network packets and can alert a network administrator to potential problems. The disclosed system detects network intrusions and takes real-time remedial actions, including dropping suspicious packets and blocking traffic from suspicious source addresses. The background section further explains that the disclosed system enhances security by acting in real time to proactively prevent network intrusions." (July 2024 Subject Matter Eligibility Guidelines, p. 12).
Here, analogously to Example 47, at least the limitations of currently amended claim 1 integrate the judicial exception into a practical application because (1) the specification teaches a technological improvement. The technical problem addressed by the disclosed system is how to provide for more accurate and efficient data analysis and data management techniques. The disclosed system applies any alleged abstract idea in a concrete and practical way to make improvements in the field of optimizing data analysis and data management in heterogenous environments with large volumes of complex data and interactions. See paragraph [0002].
These technical operations reflect an efficient and performance-driven system that would not be practically achievable by human effort alone. The claimed system uses configuration and modification of a tailored data structure in order to decouple dependency from an underlying application. Such a system is adaptable particularly in environments where input data is e.g., heterogenous (arising from a number of sources and formats) and dynamic and complex in nature as the system allows for optimized data retrieval manipulation of data for downstream display. The system also allows for the tailored data structure to be calibrated and trained, using a machine learning model, enabling precise data updates whereby accuracy of updates can be continuously improved.
Applicant respectfully submits that at least the limitations of currently amended claim 1 integrate the judicial exception into a practical application because the specification teaches a number of technological improvements as detailed above.
Analogously to Example 47, at least the limitations of currently amended claim 1 integrate the judicial exception into a practical application because (2) the claimed invention reflects the improvements described above in the field of optimizing data analysis and data management in heterogenous environments with large volumes of complex data and interactions.
At least the following limitations of currently amended claim 1 reflect the technical improvements detailed above in the technical field of optimizing data analysis and data management in heterogenous environments with large volumes of complex data and interactions.
At least the limitations of currently amended claim 1 provide for a robust system that allows for more accurate and more efficient data analysis and data management in order to optimize subsequent processing and downstream decision-making operations.
Further, at least the limitations of currently amended claim 1 detailed above reflect the technological improvements to the technical problems described in the background (how to increase accuracy and efficiency of data analysis and data management techniques in environments where the data is complex, variable and arising from a number of heterogenous sources (audio, video etc.)) and when considered in combination, integrate the abstract idea into a practical application because the claim improves the functioning of a computer or technical field. See MPEP 2106.04(d)(1) and 2106.05(a). The claimed invention reflects this improvement in the technical field of optimizing data analysis and data management in heterogenous environments with large volumes of complex data and interactions.
Thus, applicant respectfully submits that the claim as a whole integrates the judicial exception into a practical application (Step 2A, Prong Two: YES), such that the claim is not directed to the judicial exception. (Step 2A: NO).
In light of this, Applicant submits claim 1, as amended, integrates any alleged abstract idea into a practical application and is thus patentable. Claim 11 has been similarly amended and is patentable for at least the reasons discussed above for claim 1.”
The Examiner respectfully disagrees. First, as previously stated above, although “the examples” consist of hypothetical cases that may parallel Supreme Court decisions and Federal Circuit decisions, the examples are not considered precedential and are not fully considered as binding precedent on the USPTO. That being said, the Applicant’s argument with regard to “Example 47” does not super cede the Examiner’s subject-matter eligibility analysis using precedential Supreme Court decisions and Federal Circuit decisions.
Second, the Applicant’s argument with regard to “the disclosed system applies any alleged abstract idea in a concrete and practical way to make improvements..” describes a utility which is not the test. “Practical Application” does not involve the plain meaning of the words “practical” and “application.” Here, as previously stated above, the Applicant’s claims are not providing any technological advancement, as described above in the rejection. Instead, the Applicant’s claims are merely claimed to use a computer as a tool to perform an abstract idea and to generally link the use of a judicial exception to a particular technological environment or field of use. As such, the argument is not persuasive.
Step 2B
The Applicant respectfully argues “Firstly, at least the limitations of claim 1 as amended recite meaningful limits on practicing the abstract idea. Further, this can be evidenced at least by the "practical application" analysis presented above in connection with Prong 2 of Step 2A.
Applicant further respectfully asserts that at least the limitations of claim 1 as amended amount to an inventive concept, and thus "significantly more" than any alleged abstract idea recited therein. "The second step of the Alice test is satisfied when the claim limitations "involve more than performance of 'well-understood, routine, [and] conventional activities previously known to the industry." Berkheimer V. HP, Inc., 881 F.3d 1360, 1367 (Fed. Cir. 2018) (citation omitted). Here, at least the limitations of claim 1 as amended recite the use of technical features associated with a system for more accurate and efficient data analysis and data management in order to optimize subsequent processing and decision-making operations.
The above recited limitations, including at least the limitations claim 1 as amended, are not generic and instead recite a novel approach comprising "communicate a first set of educational content comprising a visual element data structure associated with a visual element, wherein the visual element data structure is configured to execute at least one rule for displaying the visual element; determine an updated visual element data structure as a function of the second set of educational content and the filtered second set of education content; wherein the user device then sends a second communication in accordance with the updated visual element data structure wherein the at least one rule is configured to direct the user device to display an altered version of the filtered second set of educational content to the user based on the user reaction datum, and calibrate and train the data structure, using the machine learning model, such that data associated with the data structure is configured to be modified.".”
The Examiner respectfully disagrees. The Applicant’s argument with regard to “a novel approach,” are best suited for arguing rejections under 35 U.S.C. §§ 102 and 103. The test for 35 U.S.C. § 101 subject-matter eligibility requires claims to be examined using the “two-part Mayo test” for determining subject-matter eligibility, as previously performed above. As such, the argument is not proper for facilitating a 35 U.S.C. § 101 subject-matter eligibility discussion.
Second, the Applicant is misconstruing the proper analysis under 35 U.S.C. § 101. The lack of prior art, clearing the claims of any 35 U.S.C. §§102 or 103 rejections, is not evidence of subject-matter eligibility under 35 U.S.C. §101.
Third, a prior art search is not necessary to resolve whether the additional element is a well-understood, routine, conventional activity because lack of novelty (i.e., not finding the element in the prior art) does not necessarily show that an element is well-understood, routine, conventional activity previously engaged in by those in the relevant field. In the present case, Applicant’s claims merely recite a generic computer performing generic computer functions at a high level of generality which do not meaningfully limit the claims to amount to anything “significantly more.”
Finally, there are many cases where prior art was not present yet an abstract idea in and of itself was still at issue (i.e. Ultramercial, Inc. v Hulu, LLC (2014); buySAFE, Inc. v Google, Inc. (2014); and Planet Bingo, LLC v VKGS LLC (2014)).
The Applicant respectfully argues “Applicant respectfully submits that no court cases, literature, or references are of record indicating that the above-described limitations are "well-understood, routine, [and] conventional," and furthermore asserts that neither the instant application nor the prosecution history in this matter contains any admission thereof.
Further, claim 1 has features that amount to significantly more than the abstract idea, because such features provide a technical contribution to the field of optimizing data analysis and data management in heterogenous environments with large volumes of complex data and interactions, which differs from conventional systems that do not achieve the desired level of robustness, accuracy and speed in environments that are complex in nature and which process large volumes of heterogeneous data (see paragraph [0002]).
Accordingly, Applicant respectfully submits that at least the limitations of claim 1 as amended are not "well-understood, routine, [and] conventional," and thus amount to an inventive concept.”
The Examiner respectfully disagrees. The Applicant’s broad reliance on a single paragraph in the background of the written description, with no further evidence substantiating “an inventive concept,” is unpersuasive. Instead, the Applicant’s claims are directed to an abstract idea of “modifying educational content,” and are not providing a “practical application” or anything “significantly more” to technology. As such, the argument is not persuasive.
The Applicant respectfully argues “Additionally, Applicant respectfully submits that claim 11 recites an inventive concept, at least because amended claim 11 contains limitations amounting to a non-conventional and non-generic arrangement of process steps. See BASCOM Glob. Internet Servs., Inc. V. AT&T Mobility, LLC, 827 F.3d 1341, 1350 (Fed. Cir. 2016). "Examiners should keep in mind that the courts have held computer-implemented processes to be significantly more than an abstract idea (and thus eligible), where generic computer components are able in combination to perform functions that are not merely generic." May 4th USPTO Memorandum at p. 4; see also DDR Holdings, 773 F.3d at 1257. Moreover, "an inventive concept may be found in the non-conventional and non-generic arrangement" even of generic computer operations on a generic computing device. Bascom, 827 F.3d at 1350. Without conceding that any limitation of claim 11 is generic or conventional, Applicant respectfully asserts that, taken as a whole, limitations to claims 11 amount to a non-conventional and non-generic arrangement of computer and functions and other technical limitations, because the instant Application does not contain any information to suggest that the elements and/or the combination thereof are conventional. There is no evidence to indicate that at least the limitations of amended claim 11 is conventional, and Applicant does not admit that the elements and/or their combination are conventional. Applicant therefore respectfully submits that claim 11 as amended recites limitations amounting to an inventive concept, and thus to significantly more than the abstract idea to which claim 11 is allegedly drawn. At least for these additional reasons, Applicant respectfully submits claim 11 recites patent eligible subject matter.”
The Examiner respectfully disagrees. The Applicant’s long-winded argument is conclusory and fails to provide any evidence pointing to a specific limitation other than what is well-understood, routine, conventional activity in the field, or adding unconventional steps that confine the claim to a particular useful application, e.g., a non-conventional and non-generic arrangement of various computer components for filtering Internet content, as discussed in BASCOM Global Internet v. AT&T Mobility LLC, 827 F.3d 1341, 1350-51, 119 USPQ2d 1236, 1243 (Fed. Cir. 2016) (see MPEP § 2106.05(d)). As such, the argument is not persuasive.
The Applicant respectfully argues “Claims 2-3, 5-10, 12-13 and 15-22 depend, directly or indirectly, on claims 1 or 11 and thus recite all the same elements as claim 1 or claim 11. Applicant therefore submits claims 2-3, 5-10, 12-13 and 15-22 overcome these rejections for at least the same reasons as discussed above with reference to amended claims 1 and 11.”
The Examiner respectfully disagrees. The dependent claims do not change the result of the previously detailed subject-matter eligibility analysis of the independent claims. As, such, the argument is not persuasive. Therefore, the rejections under 35 U.S.C. § 101 are not withdrawn.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ROBERT P. BULLINGTON whose telephone number is (313) 446-4841. The examiner can normally be reached on Monday through Friday from 8 A.M. to 4 P.M. If attempts to reach the examiner by telephone are unsuccessful, the examiner's supervisor, Peter Vasat, can be reached on (571) 270-7625. The fax phone number for the organization where this application or proceeding is assigned is (571) 273-8300.
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/Robert P Bullington, Esq./ Primary Examiner, Art Unit 3715