DETAILED ACTION
Status of Claims
1. This is a Final office action in response to communication received on 08/18/2025. Claims 2-21 are pending and examined herein.
Priority
2. The examiner acknowledges priority benefits being claimed by the Applicant.
Double Patenting
3. The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper time wise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory obviousness-type double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); and In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on a nonstatutory double patenting ground provided the conflicting application or patent either is shown to be commonly owned with this application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement.
Effective January 1, 1994, a registered attorney or agent of record may sign a terminal disclaimer. A terminal disclaimer signed by the assignee must fully comply with 37 CFR 3.73(b). The Applicant can resolve this rejection as follows:
– Amend the claim(s)
– Cancel the claim(s)
– File a proper terminal disclaimer
However,
– Declarations under 37 CFR 1.131 are NOT sufficient to overcome this rejection
This is an obviousness type double patenting rejection (ODP). Only one patent can be issued per invention. Claims 2-21 are rejected on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 11,861,645; claims 1-20 of U.S. Patent 11,074,583; and claims 1-17 of U.S. Patent No.: 10,643,213. Although the conflicting claims are not identical, they are not patentably distinct from each other because the difference is the following:
Limitations in instant claim: receiving, from a contactless card having one or more biometric device integrated thereon, biometric characteristics of a user captured by the one or more biometric devices; applying a model to data including biometric characteristics and transaction data associated with the user; determining, by the model, an emotional state of the user based on the biometric characteristics of the user; determining, based on the emotional state of the user, an action associated with a transaction of the user, the action comprising at least one of an enablement operation to cause performance of the transaction, a confirmation operation to request the user to confirm the transaction, and an incentive operation to provide an incentive to the user for the transaction; and sending a signal to a computing device to perform the enablement operation to cause performance of the transaction, communication of the confirmation operation, or performance of the incentive operation, or a combination thereof.
Limitations in Patent US11,861,645: receiving, by a system and from a computing device, biometric data comprising one or more biometric characteristics of a user, the biometric data detected by one or more biometric devices of a transaction card;
applying, by the system, a model to the biometric data and transaction data associated with a transaction to determine an emotional state of the user, the emotional state of the user comprising one of a positive emotional state or a negative emotional state, and the model trained on historical biometric data and historical transaction data associated with previous transactions and biometric characteristics of a plurality of users;
determining, by the system, an action associated for the transaction based on the emotional state of the user during performance of the transaction, wherein the action comprises at least one of an enablement operation to cause the performance of the transaction, a confirmation operation to request the user to confirm the transaction via the computing device, and an incentive operation to provide an incentive to the user via the computing device for the transaction; and
causing, by the system, the performance of the transaction, communication of the confirmation operation, performance of the incentive operation, or a combination thereof.
Limitations in Patent US11,074,583: applying, by one or more processors, a model to user interaction data and transaction data associated with a transaction, the user interaction data including inputs and browsing patterns detected by an application or a web browser to perform the transaction, and the model trained on historical user interaction data and historical transaction data associated with previous transactions;
determining, by the one or more processors, an emotional state associated of a user during the transaction based on a result of application of the model the emotional state comprising one of a positive emotional state or a negative emotional state;
in response to determining the user is in the negative emotional state: communicate an incentive offer for the transaction and a confirmation request to a computing device to prompt the user to confirm the transaction, and process a response to the confirmation request received from the computing device; and
in response to determining the user is in the positive emotional state, cause performance of the transaction.
Limitations in Patent US10,643,213: receiving, by one or more servers of a system and from at least a computing device, biometric data and transaction data for a transaction performed in a web browser, the biometric data comprising one or more biometric characteristics and browser patterns of a user detected by one or more biometric devices including a touch interface during performance of the transaction, and the transaction data comprising information of the transaction;
applying, by the one or more servers, a model to the biometric data including the biometric characteristics and the browser patterns and the transaction data, and the model trained on historical biometric data and historical transaction data associated with previous transactions and biometric characteristics of users;
in response to application of the model to the biometric data, determining, by the one or more servers, an emotional state of the user during the transaction, the emotional state of the user comprising one of a positive emotional state or a negative emotional state;
determining, by the one or more servers, an action for the transaction based on the emotional state of the user during the performance of the transaction, wherein the action comprises at least one of an enablement operation, a confirmation operation, and an incentive operation; and
sending, by the one or more servers, a message to at least one of the computing device, a mobile device of the user and different device than the computing device, a server associated with a website associated with the transaction, or combination thereof to cause performance of the action.
However, it would be obvious to person having ordinary skill in the art to broaden the scope by eliminating certain limitations or claiming certain limitations as one or more dependent claims to extend the patent coverage. However note that the claimed elements would continue to function in the same manner as in the previously granted patents and underlying invention remains the same. Only one patent is granted per invention.
Claim Rejections - 35 USC § 101
4. 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 2-21 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. Next using the 2019 Revised Patent Subject Matter Eligibility Guidances (hereinafter 2019 PEG) the rejection as follows has been applied.
Under step 1, analysis is based on MPEP 2106.03, Claims 2-9 are a method; claims 10-17 are a system; and claim 18-21 is a non-transitory CRM. Thus, each claim 2-21, on its face, is directed to one of the statutory categories (i.e., useful process, machine, manufacture, or composition of matter) of 35 U.S.C. §101.
Under Step 2A Prong One, per MPEP 2106.04, prong one asks does the claim recite an abstract idea, law of nature, or natural phenomenon? In Prong One examiners evaluate whether the claim recites a judicial exception, i.e. whether a law of nature, natural phenomenon, or abstract idea is set forth or described in the claim. While the terms "set forth" and "described" are thus both equated with "recite", their different language is intended to indicate that there are two ways in which an exception can be recited in a claim. For instance, the claims in Diehr, 450 U.S. at 178 n. 2, 179 n.5, 191-92, 209 USPQ at 4-5 (1981), clearly stated a mathematical equation in the repetitively calculating step, and the claims in Mayo, 566 U.S. 66, 75-77, 101 USPQ2d 1961, 1967-68 (2012), clearly stated laws of nature in the wherein clause, such that the claims "set forth" an identifiable judicial exception. Alternatively, the claims in Alice Corp., 573 U.S. at 218, 110 USPQ2d at 1982, described the concept of intermediated settlement without ever explicitly using the words "intermediated" or "settlement."
Next, per 2019 PEG, to determine whether a claim recites an abstract idea in Prong One, examiners are now to: (I) Identify the specific limitation(s) in the claim under examination (individually or in combination) that the examiner believes recites an abstract idea; and (II) determine whether the identified limitation(s) falls within the subject matter groupings of abstract ideas enumerated in Section I of the 2019 PEG. If the identified limitation(s) falls within the subject matter groupings of abstract ideas enumerated in Section I, analysis should proceed to Prong Two in order to evaluate whether the claim integrates the abstract idea into a practical application.
(I) An abstract idea as recited per abstract recitation of claims 2-21 [i.e. recitation with the exception of additional elements, which are first considered under step 2A prong two when claim(s) is/are reconsidered as a whole and exclusively under step 2B inquiries below, i.e. under step 2A prong one the Examiner considered claim recitation other than the additional elements (which once again are expressly noted below) to be the abstract recitation] (II) is that of ascertaining emotional state of the user while performing a transaction and enabling certain actions such as allowing and confirming a transaction or not based on emotional state and presenting an incentive which is certain methods of organizing human activity (but for its implementation in network based environment - which is considered further under prong two and step 2B analysis as set forth below).
The phrase "Certain methods of organizing human activity" applies to fundamental economic principles or practices (including hedging, insurance, mitigating risk); commercial or legal interactions (including agreements in the form of contracts; legal obligations; advertising, marketing or sales activities or behaviors; business relations)); managing personal behavior or relationships or interactions between people (including social activities, teaching, and following rules or instructions). Further, see MPEP 2106.04(a)(2) II. A-C.
Therefore, the identified limitations fall within the subject matter groupings of abstract ideas enumerated in Section I of 2019 PEG, thus analysis now proceeds to Prong Two in order to evaluate whether the claim integrates the abstract idea into a practical application.
Under Step 2A Prong Two, per MPEP 2106.04, prong two asks does the claim recite additional elements that integrate the judicial exception into a practical application? In Prong Two, examiners evaluate whether the claim as a whole integrates the exception into a practical application of that exception. If the additional elements in the claim integrate the recited exception into a practical application of the exception, then the claim is not directed to the judicial exception (Step 2A: NO) and thus is eligible at Pathway B. This concludes the eligibility analysis. If, however, the additional elements do not integrate the exception into a practical application, then the claim is directed to the recited judicial exception (Step 2A: YES), and requires further analysis under Step 2B (where it may still be eligible if it amounts to an ‘‘inventive concept’’).
Next, per 2019 PEG, Prong Two represents a change from prior guidance. The analysis under Prong Two is the same for all claims reciting a judicial exception, whether the exception is an abstract idea, a law of nature, or a natural phenomenon. Examiners evaluate integration into a practical application by: (I) Identifying whether there are any additional elements recited in the claim beyond the judicial exception(s); and (II) evaluating those additional elements individually and in combination to determine whether they integrate the exception into a practical application, using one or more of the considerations laid out by the Supreme Court and the Federal Circuit.
Accordingly, the examiner will evaluate whether the claims recite one or more additional element(s) that integrate the exception into a practical application of that exception by considering them both individually and as a whole.
The claim elements in addition to the abstract idea, i.e. additional elements, as recited in claims 2-21 at least are one or more biometric devices of a transaction card, a computing device (optional due to “or”), a memory to store instructions; and processing circuitry, coupled with the memory, operable to execute the instructions (claim 10), and non-transitory computer-readable storage medium storing computer- readable program code executable by processing circuitry to cause the processing circuitry (claim 18) [independent claims 2, 10, 18]; a web browser (3, 11); the computing device and displaying confirmation in web page of a website (claims 7, 15, 20), and a user interface (claims 8, 16).
As would be readily apparent to a person having ordinary skill in the art (hereinafter PHOSITA), the additional elements are generic computer components. The additional elements are simply utilized as generic tools to implement the abstract idea or plan as "apply it" instructions (see MPEP 2106.05(f)). The additional elements are generic as they are described at a high level of generality, see at least as-filed Figs. 1A, 6, 7, and their associated disclosure. Further, the claims appear to be implementing a commercial solution to a commercial problem of selecting and delivering ads, see at least as-filed spec. para. [0003]-[0005]. The processor executing the "apply it" instruction is further connected to one or more device merely sending/receiving data over a network, note receiving or transmitting data over a network, e.g., using the Internet to gather data, Symantec, 838 F.3d at 1321, 120 USPQ2d at 1362 (utilizing an intermediary computer to forward information); TLI Communications LLC v. AV Auto. LLC, 823 F.3d 607, 610, 118 USPQ2d 1744, 1745 (Fed. Cir. 2016) (using a telephone for image transmission); OIP Techs., Inc., v. Amazon.com, Inc., 788 F.3d 1359, 1363, 115 USPQ2d 1090, 1093 (Fed. Cir. 2015) (sending messages over a network); buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355, 112 USPQ2d 1093, 1096 (Fed. Cir. 2014). Captured data is considered insignificant extra solution activity such as biometrics and transaction as being gathered here (see MPEP 2106.05(g)). Further, the processor analyzes captured and transmitted user data to ascertain the emotional state of user to execute an action and target incentive base on behavioral data. Thus, the process is similar to collecting information, analyzing it, and displaying certain results of the collection and analysis (Electric Power Group) - certain result here is a tailored content based on information about the user (Int. Ventures v. Cap One Bank ‘382 patent). The abstract idea is intended to be merely carried out in a technical environment such as collecting data via a network and analyzing data via a generic processor to provide personalized marketing content such as ads, however fail to contain meaningful limitations beyond generally linking the use of an abstract idea to a particular technological environment (see MPEP 2106.05(h)).
Accordingly, viewed as a whole, these additional claim element(s) do not provide any additional element that integrates the abstract idea (prong one), into a practical application (prong two) upon considering the additional elements both individually and as a combination or as a whole as they fail to provide: an additional element that reflects an improvement in the functioning of a computer, or an improvement to other technology or technical field; or an additional element that implements a judicial exception with, or uses a judicial exception in conjunction with, a particular machine or manufacture that is integral to the claim; or an additional element that effects a transformation or reduction of a particular article to a different state or thing; or an additional element that applies or uses the judicial exception, again, 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 explained above.
Thus, the abstract idea of ascertaining emotional state of the user while performing a transaction and enabling certain actions such as allowing and confirming a transaction or not based on emotional state and presenting an incentive which is certain methods of organizing human activity (prong one) is not integrated into a practical application upon consideration of the additional element(s) both individually and as a combination (prong two).
Therefore, under step 2A, the claims are directed to the abstract idea, and require further analysis under Step 2B.
Under step 2B, per MPEP 2106.05, as it applies to claims 2-21, the Examiner will evaluate whether the foregoing additional elements analyzed under prong two, when considered both individually and as a whole provide an inventive concept (i.e., whether the additional elements amount to significantly more than the exception itself). The abstract idea of ascertaining emotional state of the user while performing a transaction and enabling certain actions such as allowing and confirming a transaction or not based on emotional state and presenting an incentive which is certain methods of organizing human activity has not been applied in an eligible manner. The claim elements in addition to the abstract idea are simply being utilized as generic tools to execute "apply it" instructions as they are described at a high level of generality. Additionally, the abstract idea is intended to be merely carried out in a technical environment, however fail to contain meaningful limitations beyond generally linking the use of an abstract idea to a particular technological environment (Id. or note step 2A prong two).
Regarding, insignificant solution activity such as data gathering or post solution activity such as displaying on interface, the Examiner relies on court cases and publications that demonstrate that such a way to (i) gather data and (ii) display information is indeed well-understood, routine, or conventional in the industry or art, at least note as follows:
(i) (a) also see 2021/0334813 See Abstract note “a biometric sensor and a computer system communicatively coupled to the connected device. The connected device is configured to receive, via the biometric sensor, biometric data associated with a biometric condition of a customer of a financial institution. The computer system is configured to receive the biometric data, receive location data associated with a position of the customer, generate a health score of the customer in response to receiving a transaction request, determine a biometric state of the customer based on at least one of the health score exceeding a predetermined threshold of a base score or the position of the customer during a financial transaction, and transmit an account alert to a third party prior to authorizing the transaction request based on the biometric state of the customer”; [0011] note “connected device (e.g., a wearable) may receive biometric data associated with a biometric condition (e.g., the health or cognitive condition of the customer derived by indicators such as, but not limited to, vital signs, pulse rate, body temperature, blood pressure, etc.) of the customer of the financial institution. The connected device may generate a base score based on the biometric data received. As the connected device monitors the biometric condition of the customer, the connected device may generate a health score associated with the customer. The base score and the health score may be used by the connected device to determine a biometric state (e.g., a state of duress, coercion, fraud, or a combination thereof) of the customer which, in turn, determines a fraud victim risk level of a customer and detects potential coercion of the customer when conducting a financial transaction by a caregiver or other third party”; [0015]-[0016]; [0025]-[0028]; Pub. No.: US 2007/0220273 note “transaction authentication card uses a biometric input and a wireless output. The biometric input may be a sensor pad on the transaction authentication card that measures blood flow patterns, temperature, and/or fingerprint patterns to identify a user to permit access. The transaction authentication card is preferably substantially rigid, but may be formed to have some flexibility. Power to the transaction authentication card may be accomplished through an internal battery that is optionally rechargeable. Biometric data is stored on the card only and used for user verification. Biometric data will not be transferred from the card. If authorized biometric data is authenticated the card will transmit a wireless access code to a proximity reader or transaction equipment”; see Pub. No.: US 2002/0095587 see Abstract “doing business by improving the security of transactions performed using smart cards, and also a card with an integrated biometric sensor. The disclosed techniques also improve the security of transactions carried out with devices such as personal or “pervasive computing” devices. Biometric sensors are used for obtaining identifying information from users of smart cards. In one aspect, this may be done by securely attaching a smart card reader and a biometric sensor to a security core which authenticates these devices using public key infrastructure techniques, and which securely controls information exchanged with these devices. In another aspect, this is done by integrating a biometric sensor with a smart card”; Pub. No.: US2013/0056539 see “credit and debit cards that use biometric sensors for increased security, user authentication and transaction approval and near field communication (“NFC”) technology for the authorisation, approval and processing of transactions through the use of an NFC embedded chip in the credit or debit card, and with an electronic display panel for the card number, outstanding balance or remaining amount and the amount of the current ”, and
(b) receiving or transmitting data over a network, e.g., using the Internet to gather data, Symantec, 838 F.3d at 1321, 120 USPQ2d at 1362 (utilizing an intermediary computer to forward information); TLI Communications LLC v. AV Auto. LLC, 823 F.3d 607, 610, 118 USPQ2d 1744, 1745 (Fed. Cir. 2016) (using a telephone for image transmission); OIP Techs., Inc., v. Amazon.com, Inc., 788 F.3d 1359, 1363, 115 USPQ2d 1090, 1093 (Fed. Cir. 2015) (sending messages over a network); buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355, 112 USPQ2d 1093, 1096 (Fed. Cir. 2014) (computer receives and sends information over a network); Pub. No.: US2016/0034948 see [0034] “collecting information provided from a visitor's Web browser application, readers are directed to U.S. patent application Ser. No. 11/796,031, filed Apr. 26, 2007, entitled "METHOD FOR COLLECTING ONLINE VISIT ACTIVITY," which is fully incorporated herein by reference”; [0035]; Pub. No.: US2016/0182720 common ways to market online [0012] “Marketing spending is intended to drive enterprise revenue. With the growth of the Internet network, electronic advertising, including advertising via web pages, mobile applications, emails, text messaging, streaming TV/video/media, etc., e.g., search result page advertising via the Internet, have become vehicles for opt-in advertising and/or drive follow-up by the prospect or customer through various communication channels. Targeting methods for electronic advertising include targeting consumers based on search keyword, browser behavior, navigation history, profile information, likes or dislikes, survey response, GPS coordinates, social media activities, etc. For electronic advertising, a consumer receiving the advertisement may interact with it to initiate a process which represents the goal of the advertisement, e.g., a sale to a consumer of a service or a product.” [0015] “By utilizing the demand side platform 108, the publishers 114a, b, n can manage their bid requests for the available advertising space and the pricing for the impressions 104, and the market side computers 11 Oa, b, n can manage the advertisements that they are layering on to the website to target the audiences of the audience computers 106a, b, n. The market side computers 110a, b, n can perform various functions including design of marketing advertisements campaigns and arbitration of advertisement assignments to publishers, e.g., automated, based on rules. Logic for arbitration can include determining an actual current presence of end users and pricing. If the impression 104 includes an option for a communication with the representative 206, e.g., a chat or a call, then pacing can be implemented. Pacing is related to hit rate, e.g., percentage of accepted offers, which may vary across publishers 114a, b, n, and can depend on further parameters including time of day, season, etc., as described below. A winning bid from the market side computers 110a, b, n gets its impression 104 displayed.”; Pub. No.: US 20140207565 see [0059] “In a preferred embodiment, the incentivized advertisement 120 comprises content--i.e., the actual advertisement that is displayed to the Member on the member communication device 101. In addition, the advertisement 120 is associated with at least one response event module 122--i.e., an electronically trackable event corresponding to the Member's interaction with the advertisement 120. Examples of response events include clicking through the website, signing on to a clicked through website, making a purchase, registering with the clicked through website, completing a survey, or the like. The Manager 110 electronically tracks the response event selected and performed by the Member via a tracking module or software executed on the web server 111, email server 112, or on the Member communication device 101. Electronic tracking of the Member communication device 101 may be accomplished via any electronic tracking technology known in the art, including, but not limited to, " cookies" (i.e., small data files stored by a web browser on the Member's communication device 101), web bugs, web beacons, tracking bugs, tags, or webpage tags (i.e., objects embedded in a web page or email used for tracking user activities), or other now known or later discovered electronic tracking technologies.” [similarly here user's data is received and based on analysis targeted promotions are to be transmitted over a network].
(ii) Affinity v DirecTV - "The court rejected the argument that the computer components recited in the claims constituted an “inventive concept.” It held that the claims added “only generic computer components such as an ‘interface,’ ‘network,’ and ‘database,’” and that “recitation of generic computer limitations does not make an otherwise ineligible claim patent-eligible.” Id. at 1324-25 (citations omitted). The court noted that nothing in the asserted claims purported to improve the functioning of the computer itself or “effect an improvement in any other technology or technical field.” Mortgage Grader, 811 F.3d at 1325 (quoting Alice, 134 S. Ct. at 2359)." [similarly here transaction confirmation is displayed].
Therefore the claims here fail to contain any additional element(s) or combination of additional elements that can be considered as significantly more and the claims are rejected under 35 U.S.C. 101 for lacking eligible subject matter.
Response to Applicant’s Remarks
5. As per Double Patenting Rejection, Applicant’s arguments fail to comply with 37 CFR 1.111(b) because they amount to a general allegation that the claims define a patentable invention somehow, i.e. without specifically pointing out how the language of the claims patentably distinguishes them from the cited US patents. Accordingly, the Examiner finds the Applicant’s argument that amendments somehow overcome the double patenting rejection unpersuasive and respectfully maintains the rejection.
As per 101, the Applicant’s arguments are unpersuasive. The Applicant is reminded the claims must be given their broadest reasonable interpretation in light of the as-filed specification.
The Applicant argues that in view of claim amendments the claims somehow do not invoke abstract idea grouping. The Applicant is reminded that the abstract claim recitation is the basis of ascertaining whether abstract claim recitation invokes one of the abstract idea groupings or not. Here, based on abstract claim recitation certain methods of organizing human activity squarely applies. Furthermore, the Applicant has argued in view of additional element such as card sensor supplying biometric data of the user which is first considered under prong two analysis. Also, note the examples are not exhaustive and determination of whether based on abstract claim recitation results in invoking of an abstract idea grouping is done on a case-by-case basis. Thus, “abstract idea as recited per abstract recitation of claims 2-21 [i.e. recitation with the exception of additional elements, which are first considered under step 2A prong two when claim(s) is/are reconsidered as a whole and exclusively under step 2B inquiries below, i.e. under step 2A prong one the Examiner considered claim recitation other than the additional elements (which once again are expressly noted below) to be the abstract recitation] (II) is that of ascertaining emotional state of the user while performing a transaction and enabling certain actions such as allowing and confirming a transaction or not based on emotional state and presenting an incentive which is certain methods of organizing human activity (but for its implementation in network based environment - which is considered further under prong two and step 2B analysis as set forth below).
The phrase "Certain methods of organizing human activity" applies to fundamental economic principles or practices (including hedging, insurance, mitigating risk); commercial or legal interactions (including agreements in the form of contracts; legal obligations; advertising, marketing or sales activities or behaviors; business relations)); managing personal behavior or relationships or interactions between people (including social activities, teaching, and following rules or instructions). Further, see MPEP 2106.04(a)(2) II. A-C.
Therefore, the identified limitations fall within the subject matter groupings of abstract ideas enumerated in Section I of 2019 PEG, thus analysis now proceeds to Prong Two in order to evaluate whether the claim integrates the abstract idea into a practical application.”
Next, regarding prong two, the Applicant argues in view of amended claim limitation that gathering data via a contactless card having a biometric device integrated thereon and utilized to gather biometrics data of consumer is somehow supplies a particular machine that integrates the abstract idea into practical application. However under prong two upon consideration of the argued additional element and the claim as a whole, the argued element captures or gathers data which is an insignificant extra solution activity such as a pre-solution activity e.g. data gathering which in the claimed invention as a whole supplies requisite biometric data to be evaluated to determine a consumer’s emotional state such that appropriately tailored marketing content such as incentive can be provided as part of a fundamental economic activity of conducting a transaction and carrying out targeted/personalized/tailored marketing, however note collecting information, analyzing it, and displaying certain results of the collection and analysis (Electric Power Group) - certain result here is a tailored content based on information about the user (Int. Ventures v. Cap One Bank ‘382 patent).
Lastly, per step 2B, the Examiner has provided evidence that collecting biometrics data via card embedded sensor is indeed well-understood, routine, or conventional. As such, the Examiner respectfully finds the Applicants arguments under step 2B that the claims now somehow supply significantly more.
Therefore the Examiner respectfully maintains the rejection.
Reason(s) for Non-applicability of Prior Art
6. The Examiner notes the reason(s) for non-applicability of are substantially similar to the ones noted in Notice of Allowance and Fees Due (PTOL-85) of record 08/16/2023 in parent Application 17/377,181 now Patent US11,861,645. The Examiner also notes that the references already cited on List of references cited by examiner PTO-892 in the aforementioned parent are not being repeated in the instant application.
Additionally the Examiner notes the following as being close to the inventive concept:
- Pub. No.: US2016/0189174 note “using a wireless device for detection and tracking of user's data that uses electromagnetic frequency (EMF) identification (EMFID) technologies to provide data transfer and communications for EMFID sensors for automatic identification data collection of personal data for one or more individuals or end user, multiple EMFID tag interactions, remotely storing, monitoring and retrieving data and location data, physical, emotional and mental state data, integration of biometric data, healthcare, physical health conditions, medical conditions, diseases and conditions for disease control and prevention, pharmaceutical data and other data to develop a profile for one or more individuals, using radio and other frequency tags and relaying data from EMFID tag interactions to a database that can be accessed by members of a network, wherein predictive analytics are used for one or more individuals analysis, marketing, monitoring, behavior, diagnosis and promotions, of interest, of medical care, drugs, products, illegal activity, or other services, of interest, of past, present or future customers, users, targets and/or target markets.” However, they are insufficient to establish a prima facie case of obviousness, again, as noted in PTOL-85 of record 08/16/2023 in parent Application 17/377,181 now Patent US11,861,645.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DIPEN M PATEL whose telephone number is (571)272-6519. The examiner can normally be reached Monday-Friday, 08:30-17:00 EST.
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/DIPEN M PATEL/Primary Examiner, Art Unit 3621
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