DETAILED ACTION
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 2/10/2026 has been entered.
Status of Claims
This is in reply to the claim amendments and remarks of the RCE filed 2/10/2026.
Claims 1, 3, 12, and 15-17 have been amended and claims 2 and 14 have been cancelled.
Claims 1, 3-13, and 15-18 are currently pending and have been examined.
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 .
Priority
This application claims priority of Provisional Application 63/436465 filed on 12/30/2022. Applicant's claim for the benefit of this prior-filed application is acknowledged.
Response to Amendments
The previously pending 35 USC 103 rejection is withdrawn in response to Applicant’s claim amendments. See below for reasoning.
Applicant’s amendments have been fully considered, but do not overcome the previously pending 35 USC 112 and 35 USC 101 rejections.
Response to Arguments
Applicant's arguments have been fully considered but they are not persuasive.
With regard to the limitations of claims 1, 3-13, and 15-18, Applicant argues that the claims are patent eligible under 35 USC 101 because the Desjardins memo. The Examiner respectfully disagrees. The Examiner has clearly pointed out the limitations directed towards the abstract idea, what the additional elements are and why they do not integrate the abstract idea into a practical application, and why the additional elements and remaining limitations do not amount to significantly more than the abstract idea. The Examiner asserts that the similarity and product swap determinations are the abstract idea, where using both proprietary and third party data in the analysis narrows the abstract idea. The claims do not even appear to recite machine learning, but rather use of a vector space model, which if interpreted to be machine learning is recited at such a high level of generality that it merely adds the words apply it with the judicial exception. Applicant’s arguments are not persuasive.
With regards to McRO and Enfish the Examiner points to Page 2 of the McRO-Bascom Memo from December 2016, "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." The Applicants’ claims are geared toward analyzing product to determine similarity for swapping purposes, where these techniques are merely being applied/calculated in a computing environment. Simply applying these known concepts to a specific technical environment (e.g. the computers/Internet) does not account for significantly more than the abstract idea because it does not solve a problem rooted in computer technology nor does it improve the functioning of the computer itself because it is merely making a determination based on rules and/or mathematical relationships to output to a user. The Applicant’s claimed limitations do not appear to bring about any improvement in the operation or functioning of a computer per se, or to improve computer-related technology by allowing computer performance of a function not previously performable by a computer (see page 2 of the McRo-Bascom memo). The solution appears to be more of a business-driven solution rather than a technical one. In addition, McRO had no evidence that the process previously used by animators is the same as the process required by the claims. The Applicant’s claimed limitations and originally filed specification provide no evidence that the claimed process/functions are any different than what would be done without a computer, where there are no adjustments to the mental process to accommodate implementation by computers. Applicant’s arguments are not persuasive.
Applicant argues the claims do not recite an abstract idea. The Examiner respectfully disagrees. The Examiner refers to the rejection below which clearly shows why the claims are directed towards an abstract idea. If further reasoning is needed for Applicant the Examiner refers to MPEP 2106.05 for more details. Applicant’s arguments are not persuasive.
Applicant argues the claims improve the computer. The Examiner respectfully disagrees. The Examiner asserts that running the calculations on a general purpose computer and outputting the results does not improve the computer itself, but rather is merely using the computer for implementing the abstract idea (See MPEP 2106.05). The specification does not actually state there is any improvement, but rather mere use of a vector space model in the analysis, which is recited at such a high level of generality that if it was determined to be an additional element and not abstract it would merely add the words apply it with the judicial exception. Applicant’s arguments are not persuasive.
Applicant points to Paragraph 0007 of the specification to define the claimed term similar with the word similar. The term “similar” is a relative term which renders the claim indefinite. The term “similar” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. Applicant’s arguments are not persuasive.
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, 3-13, and 15-18 are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter;
When considering subject matter eligibility under 35 U.S.C. 101, it must be determined whether the claim is directed to one of the four statutory categories of invention, i.e., process, machine, manufacture, or composition of matter. If the claim does fall within one of the statutory categories, it must then be determined whether the claim is directed to a judicial exception (i.e., law of nature, natural phenomenon, and abstract idea), and if so, it must additionally be determined whether the claim is a patent-eligible application of the exception. If an abstract idea is present in the claim, any element or combination of elements in the claim must be sufficient to ensure that the claim amounts to significantly more than the abstract idea itself.
In the instant case (Step 1), claims 1 and 3-11 are directed toward a process and claims 12-13 and 15-18 are directed toward a system; which are statutory categories of invention.
Additionally (Step 2A Prong One), the independent claims are directed toward a computer-implemented method for swapping a product selected for purchase by a user for an alternative product based on predictive success scoring, the method comprising: a computer network including one or more servers that operate to receive, analyze and store data; accessing the computer network from at least one external user interface to input data for the selected product; storing the input data on one of the one or more servers as a product catalog database; retrieving the input data from the product catalog database; analyzing the input data to determine a company score for a source of the selected product and a product score for the selected product; saving the company score and the product score on one of the at least one or more servers in a reviews repository that is separate from the product catalog database; analyzing the company score, the product score to determine an attribute score of the selected product; saving the attribute score of the selected product to one of the at least one or more servers in the reviews repository that is separate from the product catalog database; calculating a breakthrough score for the selected product as an indication of predicted future success of the selected product, wherein the breakthrough score is calculated by: accessing proprietary source data provided by the source of the selected product via the computer network accessing third-party analytics data via the computer network, the third-party analytics data comprising at least one of social media engagement data, search term popularity data, and website traffic data: and blending the proprietary source data with the third-party analytics data, the third- party analytics data being focused on the attribute score, to generate the breakthrough score; collecting data comprising explicit data and implicit data for alternative products; analyzing the explicit data and implicit data to identify alternative products that are similar within a same product category as the selected product and having at least one overlapping attribute with the selected product, wherein similarity is calculated using a vector space model that computes proximity based on product attributes stored as vectors; calculating a corresponding attribute score for each of the identified alternative products, and calculating a corresponding breakthrough score for each of the identified alternative products based on the corresponding attribute score and third-party analytics data; filtering out alternative products whose attribute scores are lower than the selected product; saving the attribute score for each of the alternative products to one of the at least one or more servers in the reviews repository; ranking remaining alternative products by both similarity of the alternative product to the selected product and by the alternative products attribute score; displaying the alternative products with the highest scores from the reviews repository through the user interface; selecting a swapping product from the alternative products that are displayed; and replacing the selected product with the swapping product (Organizing Human Activity), which are considered to be abstract ideas (See MPEP 2106.05). The steps/functions disclosed above and in the independent claims are directed toward the abstract idea of Organizing Human Activity because the claimed limitations are analyzing product and company data to determine company scores and product scores to determine an attribute score which is then analyzed to other product attribute scores to determine if and what products can be swapped out, which is a commercial interaction. The Examiner notes the claims are merely analyzing products and companies to make determinations, which is merely Organizing Human Activity.
Dependent claims 3-11, 13, and 15-18 further narrow the abstract idea identified in the independent claims, where any additional elements introduced are discussed below.
Step 2A Prong Two: In this application, even if not directed toward the abstract idea, the independent claims additionally recite “a computer-implemented method: a computer network including one or more servers that operate to; accessing the computer network from at least one external user interface; storing the input data on one of the one or more servers as a product catalog database; from the product catalog database; on one of the at least one or more servers in a reviews repository that is separate from the product catalog database; to one of the at least one or more servers in the reviews repository that is separate from the product catalog database; via the computer network accessing third-party analytics data via the computer network, to one of the at least one or more servers in the reviews repository (claim 1)”; “a system; the system comprising: a product catalog database stored on at least one server; a reviews repository database stored on a server separate from the product catalog database; at least one processor that; via the computer network; at least one processor scorer; at least one processor ranker; at least one processor selector; an interface (claim 12)”, which are additional elements that do not integrate the judicial exception (e.g. abstract idea) into a practical application because the claimed structure merely adds the words to apply it with the judicial exception and mere instructions to implement an abstract idea on a computer (See MPEP 2106.05) and are recited at such a high level of generality. These limitations can also be viewed as nothing more than an attempt to generally link the use of the judicial exception to the technological environment of a computer. Even when viewed in combination, the additional elements in the claims do no more than use the computer components as a tool. There is no change to the computer or other technology that is recited in the claim, and thus the claims do not improve computer functionality or other technology.
In addition, dependent claims 3-11, 13, and 15-18 further narrow the abstract idea and recite no additional elements. The claim limitations are recited at such a high level of generality that they merely add the words apply it with the judicial exception (See MPEP 2106.05).
Step 2B: When analyzing the additional element(s) and/or combination of elements in the claim(s) other than the abstract idea per se the claim limitations amount(s) to no more than: a general link of the use of an abstract idea to a particular technological environment and merely amounts to the application or instructions to apply the abstract idea on a computer (See MPEP 2106.05). Further, method; and System Independent claims 1 and 12 recite “a computer-implemented method: a computer network including one or more servers that operate to; accessing the computer network from at least one external user interface; storing the input data on one of the one or more servers as a product catalog database; from the product catalog database; on one of the at least one or more servers in a reviews repository that is separate from the product catalog database; to one of the at least one or more servers in the reviews repository that is separate from the product catalog database; via the computer network accessing third-party analytics data via the computer network, to one of the at least one or more servers in the reviews repository (claim 1)”; “a system; the system comprising: a product catalog database stored on at least one server; a reviews repository database stored on a server separate from the product catalog database; at least one processor that; via the computer network; at least one processor scorer; at least one processor ranker; at least one processor selector; an interface (claim 12)”; however, these elements merely facilitate the claimed functions at a high level of generality and they perform conventional functions and are considered to be general purpose computer components which is supported by Applicant’s specification in Paragraphs 0055-0056 and 0071-0072. The Applicant’s claimed additional elements are mere instructions to implement the abstract idea on a general purpose computer and generally link of the use of an abstract idea to a particular technological environment. When viewed as a whole, these additional claim element(s) do not provide meaningful limitation(s) to transform the abstract idea into a patent eligible application of the abstract idea such that the claim(s) amounts to significantly more than the abstract idea itself.
In addition, claims 3-11, 13, and 15-18 further narrow the abstract idea identified in the independent claims and present no additional elements that provide significantly more. The Examiner notes that the dependent claims merely further define the data being analyzed and how the data is being analyzed (See MPEP 2106.05). The additional limitations of the independent and dependent claim(s) when considered individually and as an ordered combination do not amount to significantly more than the abstract idea. The examiner has considered the dependent claims in a full analysis including the additional limitations individually and in combination as analyzed in the independent claim(s). Therefore, the claim(s) are rejected under 35 U.S.C. 101 as being directed to non-statutory subject matter.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1, 3-13, and 15-18 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Regarding Claims 1, 3-13, and 15-18: Claims 1 and 12 recite “similar”. The term “similar” is a relative term which renders the claim indefinite. The term “similar” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.
Allowable over 35 USC 103
Claims 1, 3-13, and 15-18 are allowable over the prior art, but remain rejected under 35 USC 101 and 35 USC 112 for the reasons set forth above. Independent claims 1 and 12 disclose a system and method for swapping product for purchase by a user by determining company sourcing scores and product scores to calculate a breakthrough score for predicting future success of the product based on social media engagement data, search term popularity data, website traffic data, and blended proprietary and third party data to identify alternative products based on similarity score proximity determined using vector space models and filtering out products that do not meet threshold requirements.
Regarding a possible 103 rejection: The closest prior art of record is:
Ouimet et al. (US 2018/0130072 A1) – which discloses controlling a commerce system by using personalized shopping lists and advertisements.
Strickland et al. (US 2025/0156920 A1) – which discloses blockchain systems for determining sustainability of products.
Blumenthal et al. (US 2012/0041849 A1) – which discloses analyzing and ranking web accessible data targets.
The prior art of record neither teaches nor suggests all particulars of the limitations as recited in claims 1 and 12, such as swapping product for purchase by a user by determining company sourcing scores and product scores to calculate a breakthrough score for predicting future success of the product based on social media engagement data, search term popularity data, website traffic data, and blended proprietary and third party data to identify alternative products based on similarity score proximity determined using vector space models and filtering out products that do not meet threshold requirements. While individual features may be known per se, there is no teaching or suggestion absent applicants’ own disclosure to combine these features other than with impermissible hindsight and the combination/arrangement of features are not found in analogous art. Specifically the claimed “a computer-implemented method for swapping a product selected for purchase by a user for an alternative product based on predictive success scoring, the method comprising: a computer network including one or more servers that operate to receive, analyze and store data; accessing the computer network from at least one external user interface to input data for the selected product; storing the input data on one of the one or more servers as a product catalog database; retrieving the input data from the product catalog database; analyzing the input data to determine a company score for a source of the selected product and a product score for the selected product; saving the company score and the product score on one of the at least one or more servers in a reviews repository that is separate from the product catalog database; analyzing the company score, the product score to determine an attribute score of the selected product; saving the attribute score of the selected product to one of the at least one or more servers in the reviews repository that is separate from the product catalog database; calculating a breakthrough score for the selected product as an indication of predicted future success of the selected product, wherein the breakthrough score is calculated by: accessing proprietary source data provided by the source of the selected product via the computer network accessing third-party analytics data via the computer network, the third-party analytics data comprising at least one of social media engagement data, search term popularity data, and website traffic data: and blending the proprietary source data with the third-party analytics data, the third- party analytics data being focused on the attribute score, to generate the breakthrough score; collecting data comprising explicit data and implicit data for alternative products; analyzing the explicit data and implicit data to identify alternative products that are similar within a same product category as the selected product and having at least one overlapping attribute with the selected product, wherein similarity is calculated using a vector space model that computes proximity based on product attributes stored as vectors; calculating a corresponding attribute score for each of the identified alternative products, and calculating a corresponding breakthrough score for each of the identified alternative products based on the corresponding attribute score and third-party analytics data; filtering out alternative products whose attribute scores are lower than the selected product; saving the attribute score for each of the alternative products to one of the at least one or more servers in the reviews repository; ranking remaining alternative products by both similarity of the alternative product to the selected product and by the alternative products attribute score; displaying the alternative products with the highest scores from the reviews repository through the user interface; selecting a swapping product from the alternative products that are displayed; and replacing the selected product with the swapping product (as required by independent claims 1, 3-13, and 15-18)”, thus rendering claims 1, 12, and their dependent claims as allowable over the prior art.
Conclusion
The prior art made of record, but not relied upon is considered pertinent to Applicant's disclosure is listed on the attached PTO-892 and should be taken into account / considered by the Applicant upon reviewing this office action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MATTHEW D HENRY whose telephone number is (571)270-0504. The examiner can normally be reached on Monday-Thursday 9AM-5PM.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, BRIAN EPSTEIN can be reached on (571)-270-5389. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MATTHEW D HENRY/Primary Examiner, Art Unit 3625
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