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 .
Response to Amendment
This Action is in response to the Amendment filed January 8, 2026. Claim 10 is amended. Claims 21-32 are added. Claims 10-17 and 21-32 are pending and have been examined in this application.
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 10-17 and 21-32 are rejected under 35 U.S.C. § 101 because the claimed invention is directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more.
Claims 10-17 and 21-32 are rejected under 35 U.S.C. § 101 because the claimed invention is directed to non-statutory subject matter. Specifically, claims 10-17 and 21-32 are directed toward at least abstract idea without significantly more. In accordance with MPEP § 2106, the rationale for this determination is explained below.
Representative claim 10 is directed towards a method, claim 21 is directed towards a system, claim 29 is directed towards a non-transitory medium, which are statutory categories of invention.
Although, claim 10 is directed toward a statutory category of invention, the claim however, is directed towards a judicial exception namely an abstract idea. The limitations that set forth the abstract idea recites: receiving a first profile input, the first profile input specifying a first set of characteristics to be used in profile generation; generating, a first candidate profile based on the first profile input, the first candidate profile including a image and text configured for use in conjunction with a listing for a product or service; outputting the first candidate profile for output; receiving a second profile input generated based on the first candidate profile specifying a second set of characteristics to be used in profile generation; generating, a subsequent candidate profile based on the first and second sets of characteristics; and controlling association of a profile with the listing for the product or service implemented using a listing service implemented by a service provider system, the controlling based on selection of the subsequent candidate profile in the user interface. These limitations, comprise commercial interactions including, marketing or sales activities; business relations; and managing personal behavior or interactions between people, including following rules or instructions. As such, the limitations are directed towards the abstract grouping of Certain Methods of Organizing Human Activity in prong one of step 2A of the Alice/Mayo test (see MPEP 2106.04(a)(2) II).
This judicial exception is not integrated into a practical application because, when analyzed as a whole under prong two of step 2A of the Alice/Mayo test (see MPEP 2106.04(d)), the additional elements provided by the claim amount to merely using a computer as a tool to apply an abstract idea, and/or generally linking the use of the judicial exception to a particular technological environment. In particular the claim recites the additional elements: entered via a user interface; by a machine-learning model using generative artificial intelligence; digital image; in the user interface; via the user interface; by the machine-learning model using generative artificial intelligence, which are recited at a high level of generality and are the mere use of a computer as a tool to perform the abstract ideas, see MPEP 2106.05(f). Simply applying the abstract idea by a computer is not a practical application of the abstract idea. Accordingly, the additional elements do not impose any meaningful limits on practicing the abstract idea, and the claim is directed to an abstract idea.
The claim does not include additional elements that are sufficient to amount to significantly more than the judicial exception. As discussed above with respect to integration of the abstract idea into a practical application, the claim recites the additional limitations of a user interface, a machine-learning model using generative artificial intelligence, a digital image, a processor and memory (claim 21), which do not constitute significantly more because they are simply an attempt to limit the abstract idea to a particular technological environment1. Viewing these limitations as a combination, the additional elements amount to no more than merely applying the exception using generic computer components, executing algorithmic functions of a computer. Merely applying an exception using general computer components cannot provide an inventive concept. See TLI Communications LLC v. AV Automotive LLC, 823 F.3d 607, 613, 118 USPQ2d 1744, 1748 (Fed. Cir. 2016) (mere recitation of concrete or tangible components is not an inventive concept). Therefore, the limitations of the claim as a whole, when viewed individually and as an ordered combination, do not amount to significantly more than the abstract idea.
An analysis of dependent claims 11-17, likewise, do not recite any limitations that would remedy the deficiencies outlined above. The claims only further add to the abstract idea, with no elements which integrate the abstract idea into a practical application or constitute significantly more. While they may slightly narrow the abstract idea by further describing it, they do not make it less abstract and are rejected accordingly. Further still, claims 21-32 suffer from substantially the same deficiencies as outlined with respect to claims 10-17 and are also rejected accordingly.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102 of this title, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 10-14 and 16-17 are rejected under 35 U.S.C. 103 as being unpatentable over Hunsmann (US Publication 2024/0289865) in view of Zehr (US Publication 10963939).
A. In regards to Claims 10, 21 and 29, Hunsmann discloses a method, system and non-transitory medium comprising:
a processor; Hunsmann [0051];
and memory storing instructions that, when executed by the processor, cause the processor to perform operations comprising: Hunsmann [0058]
receiving a first profile input entered via a user interface, the first profile input specifying a first set of characteristics to be used in profile generation; Hunsmann [0015: end-user may be prompted, for example, via various user interfaces of an application or web page, to provide answers to specific survey questions; used in the mapping or assigning of the end-user to one or more style profiles];
generating, by a machine-learning model using generative artificial intelligence, a first candidate profile based on the first profile input, the first candidate profile including a digital image and text configured for use in conjunction with a listing for a product or service; Hunsmann [0038: the style profile engine, uses various machine learning techniques to generate a user style profile for the end-user; 0013: personal style profile is created for an end-user based on the end-user's data, such as one or more images of the end-user, and in some instances, answers that the end-user provides to one or more survey questions; end-user's style profile is then used as input to a product selection];
outputting the first candidate profile for output in the user interface; Hunsmann [0015: output of the various machine learned models can be combined, based on various rules, to map certain combinations of facial features and characteristics to one or more predefined style profiles];
receiving a second profile input generated based on the first candidate profile via the user interface specifying a second set of characteristics to be used in profile generation; Hunsmann [0018: an end-user's style profile may be one component of what will be referred to as an end-use's style identity or StyleID. For instance, a StyleID may be a more holistic representation of the end-user, which may, for example, include a variety of additional data that could be used in selecting products; a StyleID may include data provided by the end-user relating to various product preferences, brand preferences, style preferences, and so forth; 0026: consumer may interact with a user interface of the kiosk to identify him or herself and access his or her style profile, if the consumer had previously created a style profile. In some instances, the style profile may be retrieved by the computer-based kiosk making a request over a network, while in other instances, a consumer may use a mobile app to directly share his or her style profile as stored on his or her mobile app (e.g., via Bluetooth, or some other wireless protocol). In either scenario, the kiosk may access information about the customer, including his or her personal style profile and StyleID, for purposes of identifying and recommending products that are offered for sale];
and controlling association of a profile with the listing for the product or service implemented using a listing service implemented by a service provider system, the controlling based on selection of the subsequent candidate profile in the user interface; Hunsmann [0035: product characteristics that are used to map a product to a product profile, and thus a style profile, are derived via analyzing images obtained from a product listing, where the analyses involve using pretrained machine learned models to detect or identify various product characteristics; 0046: after a user has authorized the third-party website to access his or her account information, the third-party website may leverage the user's style profile in generating one or more product recommendations for the user];
Hunsmann does not specifically disclose, generating, by the machine-learning model using generative artificial intelligence, a subsequent candidate profile based on the first and second sets of characteristics; this is disclosed by Zehr [Col. 15 Ln 40-42: updating a style profile based on received image data, and in certain embodiments, user input; Col. 15 Ln 65-66: the input data may be utilized to update or refine an existing style profile; Col. 16 Ln 31-32: the additional input may correspond to identification of a particular style profile to update based on the image data; Col. 4 Ln 10-12: the objects and/or attributes may automatically be associated with a particular style profile, for example via a classifier that may be trained by one or more machine learning techniques; Claim 1: train a machine learning model to determine a category of respective objects based at least in part on an association between a first attribute and a second attribute; determine the second attribute corresponds to the first attribute; update the generated style profile to include at least one of the at least one second object or the second attribute];
additionally and/or alternatively, Zehr discloses, outputting the first candidate profile for output in the user interface; Zehr [Col. 9 Ln 40-41: the interface may also provide outputs from the style profile system to the client];
receiving a second profile input generated based on the first candidate profile via the user interface specifying a second set of characteristics to be used in profile generation; Zehr [Col. 15 Ln 65-66: the input data may be utilized to refine an existing style profile; Col. 4 Ln 13-15: the user may further provide text queries to refine profiles, such as indicating certain items (e.g., shoes, belt, etc.) or additional attributes (e.g., color, material, etc.); Col. 7 Ln 12-15: different attributes or features of the items may further be analyzed and combined to generate the style profile; non-limiting example may include fit (e.g., loose, form fitting, athletic, etc.); Col. 13 Ln 60-62: example, particular sizes purchases by the users and their corresponding fits may be utilized to adjust one or more profiles; Col. 9 Ln 35-39: the interface can facilitate communication between the client device and the style profile system; requests received by the style profile system can be received by the interface; e.g. requests may include a request for data regarding information for a style for an item, among others].
It would have been obvious before the effective filing date of the invention for one of ordinary skill in the art to have modified the teachings of Hunsmann with the teachings from Zehr with the motivation to provide systems and methods that may be utilized to generate a style profile, or the like, for a consumer associated with inspirations e.g., image data including one or more features the consumer is interested in, text search queries, and the like. Zehr [Col. 2 Ln 27-30].
B. In regards to Claims 11, 22 and 30, Hunsmann discloses, wherein the profile corresponds to an entity and further comprising identifying one or more listings made available by the listing service that are associated with the entity and wherein the generating of the first candidate profile or the second candidate profile by the machine-learning model is based at least in part on the one or more listings; Hunsmann [0018: a StyleID may provide a mechanism for authenticating an end-user of the product recommendation system when the end-user is using the product recommendation system as integrated with a third-party system-for example, such as a third-party website, or a third-party ERP system or inventory management system. In such scenarios, the style profile of the end-user can be used to make recommendations of product listings hosted by third-party websites or available at retail locations, with the authorization of the end-user (e.g., using his or her StyleID)].
C. In regards to Claims 12, 23 and 31, Hunsmann discloses, wherein the text is based, at least in part, on descriptions in the one or more listings as describing products or services offered by the entity via the listing service. Hunsmann [0045: some embodiments, the product characteristics that collectively represent a product profile may be a combination of product data obtained directly from a product listing e.g., text-based data describing a product—such as, the size, a description of the product, etc.].
D. In regards to Claims 13, 24 and 32, Hunsmann does not specifically disclose, wherein the digital image is a logo digital image, a billboard digital image, or a social digital image. This is disclosed by Zehr [Col. 6 Ln 10-15: the initial image (or any subsequent images) may not be captured by the user, but rather, may be obtained via other sources, such as the Internet; e.g., the user may obtain images from a blog post or photo gallery, such as a social media photo gallery, for use in determining the style profiles]. The motivation being the same as set forth in claim 1.
E. In regards to Claims 14 and 25, Hunsmann discloses, further comprising generating a prompt for display in a user interface, the prompt providing an option for input of the first set of characteristics or the second set of characteristics. Hunsmann [0015: end-user may be prompted, for example, via various user interfaces of an application or web page, to provide answers to specific survey questions].
F. In regards to Claims 16 and 27, Hunsmann discloses, wherein the profile corresponds to an entity and further comprising identifying one or more listings made available by the listing service that are associated with the entity and wherein the generating of the prompt is based at least in part on the one or more listings. Hunsmann [0018: a StyleID may provide a mechanism for authenticating an end-user of the product recommendation system when the end-user is using the product recommendation system as integrated with a third-party system-for example, such as a third-party website, or a third-party ERP system or inventory management system. In such scenarios, the style profile of the end-user can be used to make recommendations of product listings hosted by third-party websites or available at retail locations, with the authorization of the end-user (e.g., using his or her StyleID); end-user may be prompted to answer survey questions that are specifically designed to reveal latent desires of the user, for purposes of selecting and/or filtering products when generating product recommendations and/or for the purpose of mapping or assigning the user to one of a number of predetermined style profiles].
G. In regards to Claims 17 and 28, Hunsmann discloses, wherein the prompt includes an option that is user selectable to specify a style or color based at least in part on the one or more listings. Hunsmann [0035: he product data may be manually created by a person analyzing one or more images of a product listing, and then manually entering the relevant product data. Finally, as described below, many of the product characteristics that are used to map a product to a product profile, and thus a style profile, are derived via analyzing images obtained from a product listing; 0038: the product recommendation system includes a user analysis module; which includes an end-user survey module, and an image analysis engine. The end-user survey module facilitates the conducting of end-user surveys with end-users; e.g., the end-user survey module will prompt, via various user interfaces, users to answer survey questions, and then obtain the answers to those survey questions. The image analysis engine includes a color engine and a style profile engine].
Claims 15 and 26 are rejected under 35 U.S.C. 103 as being unpatentable over Hunsmann (US Publication 2024/0289865) in view of Zehr (US Publication 10963939) in further view of Tandon (US Publication 2024/0354376).
A. In regards to Claims 15 and 26, Hunsmann does not specifically disclose, wherein the generating of the prompt is performed by a machine-learning model using generative artificial intelligence. This is disclosed by Tandon [0068: prompt includes a set of instructions telling a deep learning model, such as generative machine learning model to generate a recommendation for a first profile].
it would have been obvious before the effective filing date of the invention for one of ordinary skill in the art to have modified the teachings of Hunsmann with the teachings from Tandon with the motivation to provide a generative entity recommendation writing system that can generate implicit attributes for an entity based on a profile and use these implicit attributes to generate the entity recommendation. Tandon [0021].
Response to Arguments
Applicant's filed arguments have been fully considered but have not been found persuasive.
A. Applicant submits regarding the 35 U.S.C. § 101 rejection that the claims do not fit within Certain Methods of Organizing Human Activity judicial exception grouping, nor do they recite a mental process. The Examiner respectfully disagrees. The claims are directed to abstract ideas grouped under Certain Methods of Organizing Human Activity as they entail commercial interactions including marketing or sales behaviors; business relations, (characteristics to be used in profile generation; candidate profile including a digital image and text for use in conjunction with a listing for a product or service ) as well as managing personal behavior or relationships or interactions between people (association of a profile with the listing for the product or service implemented using a listing service implemented by a service provider system). See 101 analysis.
Applicant alludes to McRO, in which the instant claims bear no similarity. In McRO, the Court held the claims were not directed to an abstract idea because the claims were directed to an improvement in computer-related technology (allowing computers to produce “accurate and realistic lip synchronization and facial expressions in animated characters” that previously could only be produced by human animators), and thus did not recite a concept similar to previously identified abstract ideas. The Court analyzed the McRO specification that described the claimed invention as improving computer animation through the use of specific rules to set morph weights (relating to facial expressions as an animated character speaks) and transition parameters between phonemes (relating to sounds made when speaking), which were not used by human artists who instead relied on subjective determinations. The Court relied on the specification's explanation of how the claimed rules enabled the automation of specific animation tasks that previously could not be automated when determining that the claims were directed to improvements in computer animation instead of an abstract idea. The McRO court indicated that it was the incorporation of the particular claimed rules in computer animation that “improved [the] existing technological process”, unlike cases such as Alice where a computer was merely used as a tool to perform an existing process. Unlike McRO, Applicant’s claimed invention is directed to abstract ideas and there is no description in Applicant’s specification of improving a technological process. The claims simply use a computer as a tool to perform an existing process of creating profiles to target product or service offers. As made clear by Applicant’s specification its “profile manager service, for instance, leverages generative AI to generate a profile for an entity based on listings already generated by the entity or other entities as part of a listing service, e.g., to offer products or services for sale” [0019].
Applicant argues that the claims as a whole integrate any alleged abstract idea into a practical application and are therefore patent eligible under Prong Two of Step 2A because claim 10 recites a specific iterative profile generation process using generative AI, specifically requiring that a second profile input is generated based on the first candidate profile. The Examiner respectfully disagrees. Repeating a process does not improve a technology or the computer itself; hence a model employing a feedback loop used to synthesize a subsequent candidate profile, is not an improvement to the computer or any technology. See as least Recentive Analytics, Inc. v. Fox Corp, 134 F.4th 1205, 1213 (Fed. Cir. 2025) (“requirements that the machine learning model be “iteratively trained” or dynamically adjusted in the Machine Learning Training patents do not represent a technological improvement”).
Applicant contends that the invention is directly analogous to the eligible claims in the USPTO's AI-specific Example 47 (Anomaly Detection) and Example 48 (Speech Separation). The Examiner respectfully disagrees. These examples are extremely disparate; thus, they are not analogous to each other nor to Applicant’s invention. The instant claimed invention and Example 47 have different claim sets and different fact patterns, and therefore the two are not analogous. Example 47, Claim 3 was deemed eligible because it trained a machine learning model to generate an ANN that was used to detect anomalies in network traffic. Contrary to Example 47, the instant claimed invention, is directed towards the abstract grouping of Certain Methods of Organizing Human Activity (see 101 analysis above) and does not provide a technological solution to a technical problem. Also, there is no technical support/technical description in Applicant’s Specification that the claimed invention, when implemented, improves the functioning of a network, the computing device itself, or that of another technology/technical field.
The instant claims are not analogous to Claim 2 of Example 48 because they have different claim sets, different fact patterns and do not provide any additional elements that integrate the abstract ideas into a practical application. The claims for instance do not generate a mixed speech signal that excludes speech signal from a target source, but rather they iteratively generate and update a profile. Not monopolize the idea of creating a profile or marketing, is not a stand-alone test for eligibility (see MPEP 2106.04(I)), and furthermore, does not amount to an improvement to the computer itself or any technology. A computer automation providing an improvement over manual tools, manual interactions, static templates or computational resources is what is to be expected and is similar to “claiming the improved speed or efficiency inherent with applying the abstract idea on a computer” which does not integrate the abstract idea into a practical application (MPEP 2106.05(f)(2)). As such, there is no technical improvement as provided by Claim 2 of Example 48, and the combined additional elements in the instant claims do not integrate the abstract ideas into a practical application
Applicant further argues that the claims recite an inventive concept that amounts to significantly more than the abstract idea by providing a technical feedback loop where the system receives a second profile input that is generated based on a first candidate profile. The Examiner respectfully disagrees. Using a machine-learning model to apply the abstract idea does not amount to significantly more. This amounts to using an algorithm to implement the creation of a profile via a computer, which addresses an entrepreneurial problem rather than a technological one. See TLI at 613, 1748 (mere recitation of concrete or tangible components is not an inventive concept). Even assuming arguendo, the invention automates the manual process by using a new, non-conventional interaction model where the first candidate profile is technically linked to and drives the subsequent refinement input, it still would not constitute significantly more. As even newly discovered judicial exceptions are still exceptions, despite their novelty. For example, the mathematical formula in Flook, 437 U.S. at 591-92, (1978), the laws of nature in Mayo Collaborative Servs. v. Prometheus Labs. Inc., 566 U.S. 66, 73-74, 101 USPQ2d 1961, 1968 (2012), and the isolated DNA in Association for Molecular Pathology v. Myriad Genetics, Inc., 133 S. Ct. 2107, 2116, 106 USPQ2d 1972, 1978 (2013) were all novel, but were considered by the Supreme Court to be judicial exceptions.
Applicant also contends that claim 10 is directly analogous to BASCOM. The Examiner respectfully. In BASCOM, the court agreed that the concept of filtering content was an abstract idea; however, the claims were found to be significantly more since they did not merely recite the abstract idea along with the requirement to perform it on the Internet, or on a set of generic computer components. The inventive concept was found in the non-conventional and non-generic arrangement of known, conventional pieces, because although, filtering content on the Internet was already a known concept, the patent described how its particular arrangement of elements was a technical improvement over prior art ways of filtering content. Thus, like BASCOM, Applicant’s claims are directed to an abstract concept but unlike BASCOM, they do not improve any technology neither are they unconventional. Employing modules in an iterative sequence/feedback loop is not unconventional. See above and 101 analysis; See also TLI at 613, 1748 (“It is well-settled that mere recitation of concrete, tangible components is insufficient to confer patent eligibility to an otherwise abstract idea”)
As such, the claims as a whole, in view of Alice, do not connote an improvement to another technology or technical field; the claims do not amount to an improvement to the functioning of a computer itself; and the claims do not move beyond a general link of the use of the abstract idea to a particular technological environment. Therefore, the 35 U.S.C. § 101 rejection is maintained.
B. Applicant submits regarding the 35 U.S.C. § 103 rejection that Hunsmann does not disclose generating a first candidate profile that the user then critiques and refines upon. The Examiner respectfully disagrees. First, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). Notwithstanding, the Zehr discloses refining a profile whose input is based on an existing i.e. a prior/first profile, in that the input data may be utilized to update or refine an existing style profile; Zehr [Col. 15 Ln 65-66]; and the user may further provide text queries to refine profiles, such as indicating certain items or additional attributes; Zehr [Col. 4 Ln 13-15]. A person of ordinary skill in the art would know that to refine a profile it necessarily has to be based on the initial/first profile.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Errol CARVALHO whose telephone number is (571)272-9987. The Examiner can normally be reached on M-F 9:30-7:00 Alt Fri
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Ilana Spar can be reached on 571- 270-7537. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/E CARVALHO/
Primary Examiner, Art Unit 3622
1 See, Alice Corp. Pty Ltd. v. CLS Bank lnt'l, 134 S. Ct. 2347, 2360 (2014) (noting that none of the hardware recited “offers a meaningful limitation beyond generally linking ‘the use of the [method] to a particular technological environment,’ that is, implementation via computers” (citing Bilski v. Kappos, 561 U.S. 593, 610-11 (2010))).