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 .
Claims Status
Claims 1-3 remain pending and are rejected.
Interview Summary
The Examiner attempted to contact Applicant’s representative to discuss the previously suggested amendment and potentially filing a supplemental response. Multiple attempts were made to reach Applicant’s representative, but the listed phone number for Applicant’s representative was not accepting calls and did not provide an option to leave a voice mail.
To schedule an interview, applicant is invited to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice, and/or file an authorization for electronic communication as discussed in MPEP 502.03(II) to expedite future communication.
Response to Amendment/Arguments
I. Applicant Remarks regarding the objection to the specification are acknowledged. Applicant indicates that Applicant “well remove” the trademarks in question; however, no amendment to the specification has been filed, nor has Applicant removed the terms from the claims. The objection is maintained.
II. Applicant’s arguments made with respect to the rejection under 35 USC 112(a) and 112(b) have been fully considered but are not persuasive.
The Examiner acknowledges Applicant’s adoption of suggested changes. Upon further review of the amendment suggested by the Examiner in the Non-Final Action mailed 7/2/2025, the Examiner observed that not all necessary changes were reflected in the proposal. For these reasons, this action is made Non-Final as a courtesy to Applicant.
The Examiner reiterates that the previously suggested amendment was meant to address a portion of the issues raised with respect to 35 USC 112(b), namely with respect to the grammatical structure and overall drafting of the method claims, and did not address other deficiencies (e.g., 35 USC 112(a) and 35 USC 101). The amendment was merely demonstrative for addressing the structural limitations within the method claim.
III. Applicant’s arguments made with respect to the rejection under 35 USC 101 have been fully considered but are not persuasive.
Applicant argues that the claimed invention is directed to “a technical system for enabling intelligent human-computer interacting – not merely abstract marketing”. Applicant then compares the current claims to the eligible claims of McRO, Inc. v. Bandai Namco Games America Inc. The basis for the court’s decision in McRO was that the claims were clearly directed to an improvement in computer-related technology (allowing computers to produce "accurate and realistic lip synchronization and facial expressions in animated characters"). As part of the analysis, the court in McRO emphasized the specification, which clearly described the invention as improving computer animation through the use of specific rules. The decision in McRO was similar to that in Enfish v. Microsoft (Fed. Cir. 2016) and other precedential decisions in that the courts emphasized the specificity of the specification in detailing and solving a problem arising in a specific technology or technical field.
The Examiner holds that a comparison to the circumstances and concepts described in McRO is inapposite. At a high level, both McRO and the instant application involve some form of digital character; however, the similarities cease there. If it is asserted that the invention improves upon conventional functioning of a computer, or upon conventional technology or technological processes, a technical explanation as to how to implement the invention should be present in the specification. That is, the disclosure must provide sufficient details such that one of ordinary skill in the art would recognize the claimed invention as providing an improvement. If the specification explicitly sets forth an improvement but in a conclusory manner (i.e., a bare assertion of an improvement without the detail necessary to be apparent to a person of ordinary skill in the art), the examiner should not determine the claim improves technology (MPEP 2106.05(a))
Unlike McRO, The specification and claims set forth only at a high level of generality the use and creation of virtual agents, as well as artificial intelligence. Neither claims nor the specification provide any detail concerning the technical explanation of how the underlying technical processes are performed and lack any restriction on the manner in which these steps are performed by the computer. Applicant’s assertion is little more than a bare assertion without the necessary detail to demonstrate the alleged improvement. Furthermore, a recitation of claim limitations that attempt to cover any solution to an identified problem with no restriction on how the result is accomplished and no description of the mechanism for accomplishing the result, does not integrate a judicial exception into a practical application or provide significantly more because this type of recitation is equivalent to the words “apply it” (see MPEP 216.05(f)).
MPEP 2106.05(d) also contrasts the McRO decision with that in in Affinity Labs of Tex. v. DirecTV, LLC. In that decision, the court relied on the specification’s failure to provide details regarding the manner in which the invention accomplished the alleged improvement when holding the claimed methods of delivering broadcast content to cellphones ineligible. 838 F.3d 1253, 1263-64, 120 USPQ2d 1201, 1207-08 (Fed. Cir. 2016). The Examiner holds that a more proper comparison of the claimed invention is to that of Affinity Labs of Tex. v. DirecTV, LLC, rather than McRO (or other eligible decisions). The Examiner also draws Applicant’s attention to RecogniCorp, LLC v. Nintendo Co. Fed. Cir. 2017), which held claims directed to a method of creating a composite image through encoding/decoding facial data to be ineligible.
The Examiner further notes that generally linking the use of a judicial exception to a particular technological environment or field of use also fails to confer eligibility upon the claim. One example of this is the aforementioned Affinity Labs of Texas v. DirecTV, LLC. The court identified the claimed concept of providing out-of-region access to regional broadcast content as an abstract idea, and noted that the additional elements limited the wireless delivery of regional broadcast content to cellular telephones (as opposed to any and all electronic devices such as televisions, cable boxes, computers, or the like). Although the additional elements did limit the use of the abstract idea, the court explained that this type of limitation merely confines the use of the abstract idea to a particular technological environment (cellular telephones) and thus fails to add an inventive concept to the claims (see: MPEP 2106.05(h)).
Turning to Applicant’s comparison to DDR Holdings Inc. v. Hotels.com (Fed. Cir. 2014), the Examiner again disagrees. The claims in DDR Holdings attempted to address the problem specific to the routine functionality of a link (i.e. a user is directed away from the current page to the site of another merchant). The claims of DDR Holdings specified how interactions with the computer/Internet were manipulated to create a composite/hybrid page that prevented the user from being directed to the outside merchant, therein overriding the routine function of the link. The claims of the instant application, however, lack any restriction on the manner in which the computing operations are to be performed to generate virtual agents, train the artificial intelligence, et al. The manner in which the currently pending claims are written is much more akin to the claims in Affinity Labs of Texas v. DirecTV, LLC (above), Internet Patents Corp. v. Active Network, Inc. (Fed. Cir. 2015) (claims contained no restriction on the manner in which the additional elements perform these claimed functions), and Ultramercial Inc. v. Hulu LLC (Fed. Cir. 2014) (generally linked the abstract idea to a particular technological environment).
Returning to MPEP 2106.05(a) and MPEP 2106.04(d)(1), the Examiner appreciates the arguments set forth by Applicant but maintains that the evidence at hand demonstrates that the invention fails to provide the requisite detail and technical explanation with respect to the alleged improvements in order to demonstrate to one of ordinary skill in the art that the claimed invention achieves an improvement in the functioning of the computer itself or another technology or technical field. While the claims set forth a number of additional elements, they are characterized more by their use in facilitating the abstract commercial process, and result in an improvement to the abstract idea itself. Accordingly, the rejection under 35 USC 101 has been maintained below.
Objection to the Specification
The use of the term “Android” and “iOS” in paragraphs 3, 14, 26, 53, 61, and 70, which is a trade name or a mark used in commerce, has been noted in this application. The term should be accompanied by the generic terminology; furthermore the term should be capitalized wherever it appears or, where appropriate, include a proper symbol indicating use in commerce such as ™, SM , or ® following the term.
Although the use of trade names and marks used in commerce (i.e., trademarks, service marks, certification marks, and collective marks) are permissible in patent applications, the proprietary nature of the marks should be respected and every effort made to prevent their use in any manner which might adversely affect their validity as commercial marks.
Claim Objections – Informalities
Claims 1-3 have been amended and are replete with grammatical errors and idiomatic English. For example, claim 1 has the following errors:
Limitation 2: displaying wherein the virtual agents via are configured to…
Limitation 3: overlaying graphics on top of the virtual agents, the virtual agents displayed on wherein a set of multi-layer info panels coupled to the one or more processors; are configured to overlay graphics on top of the virtual agents
Limitation 5: performing, during interaction with the virtual agents, wherein the artificial intelligence engine is configured for…
Limitation 6: emulating, by wherein the artificial intelligence engine
Limitation 8: interacting, by the user via wherein a set of touch screens
Limitation 10: uploading wherein pictures or voices of the user;
Claims 2-3 recite similar errors. Appropriate correction is required for claims 1-3.
Claim Rejections - 35 USC § 112(a)
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1-3 rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Regarding claim 1, claim 1 recites:
wherein the artificial intelligence engine is trained by human experts in the field and configured to dynamically personalize content in real-time based on multi-modal biometric inputs received from the user. The specification merely repeats this language in, e.g., paragraphs 3, 14, 26, 53, 61 and 70, sans any details with respect to how the artificial intelligence engine is trained by human experts.
Likewise, the specification fails to provide sufficient detail with respect to how the artificial intelligence engine is configured to dynamically personalize content in real-time based on multi-modal biometric inputs received from the user. In fact, the specification is silent with respect to multi-modal biometric inputs and their utilization in dynamically personalizing content.
While the specification may, in some portions, literally support the claimed limitations, merely reproducing the claim limitation in the specification or pointing to an original claim does not satisfy the written description requirement where the claim itself does not convey enough information to show that the inventor had possession of the claimed invention. Elements that are essentially a "black box" will not be sufficient.
Moreover, whether one of ordinary skill in the art could devise a way to accomplish these functions is not relevant to the issue of whether the inventor(s) has shown possession of the claimed invention. This is because the ability to make and use the invention does not satisfy the written description requirement if details of how a function (such as the claimed updating) is performed are not disclosed.
Disclosure of function alone is little more than a wish for possession and it does not satisfy the written description requirement. [See MPEP 2163: II(3)(a)(i), Eli Lilly, 119 F.3d at 1568, 43 USPQ2d at 1406]. Moreover, a specification which does little more than outline goals applicant hopes the claimed invention achieves does not satisfy the written description requirement [see MPEP 2163: II(3)(a)(i), In re Wilder, 736 F.2d 1516, 1521, 222 USPQ 369, 372-73 (Fed. Cir. 1984)]. Lastly, the specification lacks adequate description of a “representative number of species” which may satisfy the written description requirement [see MPEP 2163: II(3)(a)(ii)].
Further regarding claim 1, the recitation wherein the virtual agents’ gender, age and ethnicity is determined by the artificial Intelligence’s analysis on input from the user, this limitations is not adequately described in the specification because the specification provides no further detail or description of how the determination is made. While the specification may literally support the claimed limitations, merely reproducing the claim limitation in the specification or pointing to an original claim does not satisfy the written description requirement where the claim itself does not convey enough information to show that the inventor had possession of the claimed invention. Elements that are essentially a "black box" will not be sufficient.
Moreover, whether one of ordinary skill in the art could devise a way to accomplish these functions is not relevant to the issue of whether the inventor(s) has shown possession of the claimed invention. This is because the ability to make and use the invention does not satisfy the written description requirement if details of how a function (such as the claimed updating) is performed are not disclosed.
Disclosure of function alone is little more than a wish for possession and it does not satisfy the written description requirement. [See MPEP 2163: II(3)(a)(i), Eli Lilly, 119 F.3d at 1568, 43 USPQ2d at 1406]. Moreover, a specification which does little more than outline goals applicant hopes the claimed invention achieves does not satisfy the written description requirement [see MPEP 2163: II(3)(a)(i), In re Wilder, 736 F.2d 1516, 1521, 222 USPQ 369, 372-73 (Fed. Cir. 1984)]. Lastly, the specification lacks adequate description of a “representative number of species” which may satisfy the written description requirement [see MPEP 2163: II(3)(a)(ii)].
Further regarding claim 1, claim 1 recites wherein the artificial intelligence engine is configured for real-time speech recognition, speech to text generation, real-time dialog generation, text to speech generation, voice-driven animation, and human avatar generation. Similar to the discussion above, the specification fails to provide any further detail with respect to how the artificial intelligence engine may be performs each of the noted functions, and fails to disclose how the operations are performed by the artificial intelligence engine (i.e., the specification merely literally supports that the AI engine is configured to perform these operations, but does not demonstrate how the operations are performed or how an AI engine is made to be capable of performing the operations). This represents a black box as discussed above and is not supported by the original disclosure.
Disclosure of function alone is little more than a wish for possession and it does not satisfy the written description requirement. [See MPEP 2163: II(3)(a)(i), Eli Lilly, 119 F.3d at 1568, 43 USPQ2d at 1406]. Moreover, a specification which does little more than outline goals applicant hopes the claimed invention achieves does not satisfy the written description requirement [see MPEP 2163: II(3)(a)(i), In re Wilder, 736 F.2d 1516, 1521, 222 USPQ 369, 372-73 (Fed. Cir. 1984)]. Lastly, the specification lacks adequate description of a “representative number of species” which may satisfy the written description requirement [see MPEP 2163: II(3)(a)(ii)].
Further regarding claim 1, claim 1 wherein the artificial intelligence engine is configured to emulate different voices and use different languages, wherein the visual agents are connected via network means. Here again, the specification only literally supports the limitation sans any further description. The emulation and use different languages is a black box and is not adequately supported by the original disclosure.
Disclosure of function alone is little more than a wish for possession and it does not satisfy the written description requirement. [See MPEP 2163: II(3)(a)(i), Eli Lilly, 119 F.3d at 1568, 43 USPQ2d at 1406]. Moreover, a specification which does little more than outline goals applicant hopes the claimed invention achieves does not satisfy the written description requirement [see MPEP 2163: II(3)(a)(i), In re Wilder, 736 F.2d 1516, 1521, 222 USPQ 369, 372-73 (Fed. Cir. 1984)]. Lastly, the specification lacks adequate description of a “representative number of species” which may satisfy the written description requirement [see MPEP 2163: II(3)(a)(ii)].
Further regarding claim 1, claim 1 recites interacting by the user via wherein a set of touch screens coupled to the one or more processors is configured to allow the user to interact with the virtual agents by hand, facial expression, sign language and body posture. While a interacting with a touch screen by hand may be known, the specification does not adequately describe a touch screen that can also interact by facial expression, sign language and body posture. These are not known functions and one of ordinary skill would not conclude that Applicant possessed a touch screen capable of such interactions based on the specification as originally filed.
Further regarding claim 1, claim 1 recites creating the virtual agents wherein the virtual agents are configured to be created based on an appearance of a real human character. Here again, the specification only literally supports the limitation sans any further description. The creation of the virtual agents is a black box and is not adequately supported by the original disclosure.
Disclosure of function alone is little more than a wish for possession and it does not satisfy the written description requirement. [See MPEP 2163: II(3)(a)(i), Eli Lilly, 119 F.3d at 1568, 43 USPQ2d at 1406]. Moreover, a specification which does little more than outline goals applicant hopes the claimed invention achieves does not satisfy the written description requirement [see MPEP 2163: II(3)(a)(i), In re Wilder, 736 F.2d 1516, 1521, 222 USPQ 369, 372-73 (Fed. Cir. 1984)]. Lastly, the specification lacks adequate description of a “representative number of species” which may satisfy the written description requirement [see MPEP 2163: II(3)(a)(ii)].
Examiner comment on the above rejections
It is noted that the above rejections are not an enablement rejection. Applicant’s failure to sufficiently describe any algorithm, steps, details, or procedures taken to perform the claimed operations raises questions as to whether Applicant truly had possession of this feature at the time of filing. The nature of the disclosure is such that little to no details are provided with respect to the computing technology, computers used, configuration or operation of the artificial intelligence engine, software, or underlying functionality of any computing components. The Examiner reiterates, as stated above, that disclosure of function alone is little more than a wish for possession and it does not satisfy the written description requirement. A specification which does little more than outline goals applicant hopes the claimed invention achieves does not satisfy the written description requirement.
Regarding claims 2-3, claims 2-3 recite at least the same limitations as recited above, As such, claims 2-3 have the same deficiencies and are rejected under 35 USC 112(a) under at least similar rationale.
Claim Rejections - 35 USC § 112(b)
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 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 claim 1, claim 1 is replete with language that renders the scope of the claim indefinite. Notably, claim 1 recites a method, but within the method the claim recites what appears to be various structural limitations configured to perform functions. While a method may employ structural elements such as computing components, the intended scope and the impact of the structural elements on the performance of the method renders the scope unclear. This is exacerbated by the formatting and grammatical structure of some limitations, where amended limitations now recite both an active step (e.g., displaying wherein the virtual agents via are configured to be displayed in LED/OLED displays, Android/iOS tablets, Laptops/PCs, smartphones, or VR/AR goggles) as well as a redundant function of a configured component (e.g., displaying wherein the virtual agents via are configured to be displayed in LED/OLED displays, Android/iOS tablets, Laptops/PCs, smartphones, or VR/AR goggles).
As another examples, claim 1 recites:
wherein an artificial intelligence engine is coupled to the one or more processors and a server, wherein the artificial intelligence engine is trained by human experts in the field, and configured to dynamically personalize content in real-time based on multi-modal biometric inputs.
Here, it is unclear whether an active training is required, or whether this is some passive step that is not required and only indicative of the characteristic of the artificial intelligence engine. Further, it is unclear whether configured to dynamically personalize content in real-time based on multi-modal biometric inputs requires an active step of requires an active step of dynamic personalization of the content by the artificial intelligence engine, or if this is 9again) only a characteristic and capability of the artificial intelligence engine.
Other examples recited in claim 1 include:
displaying wherein the virtual agents via are configured to be displayed in LED/OLED displays, Android/iOS tablets, Laptops/PCs, smartphones, or VR/AR goggles,
overlaying graphics on top of the virtual agents, the virtual agents displayed wherein a set of multi-layer info panels coupled to the one or more processors are configured to overlay graphics on top of the virtual agents,
displaying wherein the virtual agents are configured to be displayed with an appearance of a real human or a humanoid or a cartoon character, wherein the virtual agents’ gender, age and ethnicity is determined by the artificial Intelligence’s analysis on input from the user,
wherein the virtual agents are configured to be displayed in full body or half body portrait mode,
wherein the artificial intelligence engine is configured for real-time speech recognition, speech to text generation, real-time dialog generation, text to speech generation, voice-driven animation, and human avatar generation,
emulating by wherein the artificial intelligence engine is configured to emulate different voices and use different languages, wherein the visual agents are connected via network means;
Each of the above limitations exudes similar issues of having both an active step and a component configured for the step, which redundantly recites the step performed. Moreover, it remains unclear how such limitations that recite a “configured to” component imparts further limitation on the scope of the method because the limitation set forth a structure and its function that itself redundant to already performed steps of the method.
Further regarding claim 1, claim 1 recites an “artificial intelligence engine”. The specification provides no definition for an artificial intelligence engine, nor does the specification set forth any examples of an artificial intelligence engine. It is unclear whether this term refers to software (as the term ‘engine’ in the art is often used), an AI ‘model’ (which is what is typically trained), or the combination of an AI model plus software.
Additionally, the artificial intelligence engine is trained by human experts in the field renders the claim indefinite because the scope of expert is not defined by the specification, nor is one of ordinary skill in the art able to readily delineate by what may be an expert vs, a non-expert in any field. This is a relative term that is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree of who may be considered an “expert”, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.
Lastly, the term the field has no antecedent basis, and it is unclear what the scope of the field may include, what field this may refer to, and how to avoid infringement of expert in the field.
Further regarding claim 1, claim 1 recites wherein the virtual agents’ gender, age and ethnicity is determined by the artificial Intelligence’s analysis on input from the user. The grammatical structure of this claim is ambiguous because it is unclear whether this limitation requires active determination, or if this is merely a characteristic of the agents that has already been determined.
Further regarding claim 1, claim 1 recites wherein the virtual agents are configured to be displayed in LED/OLED displays, Android/iOS tablets, Laptops/PCs, smartphones, or VR/AR goggles. Claim 1 contains the trademark/trade names Android and iOS. Where a trademark or trade name is used in a claim as a limitation to identify or describe a particular material or product, the claim does not comply with the requirements of 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph. See Ex parte Simpson, 218 USPQ 1020 (Bd. App. 1982). The claim scope is uncertain since the trademark or trade name cannot be used properly to identify any particular material or product. A trademark or trade name is used to identify a source of goods, and not the goods themselves. Thus, a trademark or trade name does not identify or describe the goods associated with the trademark or trade name. Accordingly, the identification/description is indefinite.
Further regarding claim 1, claim 1 recites wherein a set of multi-layer info panels coupled to the one or more processors are configured to overlay graphics on top of the virtual agents. The term multi-layer info panel is unclear because the specification provides no further description of the structure of the panel, nor does the specification provide a drawing or figure to allow one of ordinary skill to ascertain the scope of what may or may not comprise the panel, and what multi-layer may be intended to describe.
Further regarding claim 1, claim 1 recites wherein the set of microphones are enabled to be beamforming, Similar to the above discussions concerning redundant “configured to” language, this limitation does not seem to relate back to or refine what is required by the step of detecting the user’s voice by a set of beamforming microphones coupled to the one or more processors.
Further regarding claim 1, claim 1 recites “uploading wherein pictures or voices of the user; are configured to be uploaded and processed either on a cloud server or in local or personal devices to analyze and create”. The underlined portion is disconnected from the previous portion of the limitation and it is unclear what is required by the underlined portion. It is also unclear how pictures or voices are uploaded on…personal devices.
Further regarding claim 1, claim 1 recites interacting, by a user via wherein a set of touch screens coupled to the one or more processors is configured to allow the user to interact with the virtual agents by hand, facial expression, sign language and body posture. Similar to the above discussions, certain limitations do not seem to relate back to or refine what is required by the step of interacting.
Further regarding claim 1, claim 1 recites guiding and suggesting a set of items through conversation between the virtual agents and the user, wherein the guiding and the suggestions are based on the user’s profile and analysis of the artificial intelligence engine, wherein the virtual agent is configured to suggest items that the user is mostly willing to buy based on interactions between the virtual agents and the user and the analysis of the artificial intelligence engine.
The wherein clause wherein the virtual agent is configured to suggest items that the user is mostly willing to buy based on interactions between the virtual agents and the user and the analysis of the artificial intelligence engine renders the claim unclear because it is unclear ow such a clause – which does not recite a specific step to be performed as part of the method – imparts further limitation on the scope of the method.
Additionally, the phrasing mostly willing to buy because mostly willing is a relative term which renders the claim indefinite. The term “mostly willing” 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.
Lastly, wherein the virtual agent is configured to suggest items that the user is mostly willing to buy based on interactions between the virtual agents and the user and the analysis of the artificial intelligence engine is unclear because it is unclear which analysis the analysis of the artificial intelligence engine refers to (e.g., the AI engine’s analysis on input from the user, or, analyzing the user profile).
Further regarding claim 1, claim 1 recites usages of credit cards, payment applications, cash, checks, cryptocurrency or other payment means. The term other payment means is open ended and distinct from the listed payment means of credit cards, payment applications, cash, checks, cryptocurrency. The specification does not provide any further examples of payment means, and it is unclear what forms of payment may or may not be envisioned by applicant as part of other payment means.
Regarding claims 2-3, claims 2-3 recite at least the same limitations as recited above, As such, claims 2-3 have the same deficiencies and are rejected under 35 USC 112(a) under at least similar rationale.
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 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception (abstract idea) without significantly more.
Regarding claims 1-3, under Step 2A claims 1-3 recite a judicial exception (abstract idea) that is not integrated into a practical application and does not provide significantly more.
Under Step 2A (prong 1), and taking claim 1 as representative, claim 1 recites a method for providing sales and customer services via agents,
detecting a request from a user in a store,
detecting and tracking the user’s face, eye, and pose,
analyzing the user’s profile from audio-visual information wherein the user’s profile includes the user’s audio and facial characteristics;
selecting the user’s profile based on matching audio and facial characteristics from a set of profiles, wherein the user’s profile comprises information on prior food ordering habits, food preferences, and possible food allergies;
guiding and suggesting a set of items through conversation between the agents and the user, wherein the guiding and the suggestions are based on the user’s profile and analysis of the artificial intelligence engine, wherein the virtual agent suggest items that the user is mostly willing to buy based on interactions between the agents and the user and the analysis of the artificial intelligence engine;
providing options for the user to customize and make orders of any of items in the store, wherein the options comprise customization of the items, methods of payment or financing, and method of delivery of the items;
receiving information of orders of any of the items from the user, wherein the information includes information of payment, wherein the user can choose different ways for the payment, wherein the different ways includes usages of credit cards, payment applications, cash, checks, cryptocurrency or other payment means;
arranging the orders to be delivered to an address, wherein the address is chosen by the user; and
adding the orders and payment information to the user’s profile.
These limitations recite ‘certain methods of organizing human activity’, such as by performing commercial interactions (see: MPEP 2106.04(a)(2)(II)). This is because claim 1 sets forth or describes providing sales and customer services via agents. This represents the performance of a marketing and/or sales activity, which is a commercial interaction and falls under organizing human activity.
Accordingly, under step 2A (prong 1) claim 1 recites an abstract idea because claim 1 recites limitations that fall within the “Certain methods of organizing human activity” grouping of abstract ideas.
Under Step 2A (prong 2), the abstract idea is not integrated into a practical application. The Examiner acknowledges that representative claim 1 does recite additional elements, including virtual agents powered with artificial intelligence,
one or more processors,
capturing a gesture or voice command via a camera and microphone array coupled to said processors
wherein an artificial intelligence engine is coupled to the one or more processors and a server, wherein the artificial intelligence engine is trained by human experts in the field and configured to dynamically personalize content in real-time based on multi-modal biometric inputs received from the user;
displaying wherein the virtual agents via are configured to be displayed in LED/OLED displays, Android/iOS tablets, Laptops/PCs, smartphones, or VR/AR goggles;
overlaying graphics on top of the virtual agents, the virtual agents displayed on wherein a set of multi-layer info panels coupled to the one or more processors; are configured to overlay graphics on top of the virtual agents,
displaying wherein the virtual agents are configured to be displayed with an appearance of a real human or a humanoid or a cartoon character, the virtual agents displayed having a gender, age and ethnicity, wherein the virtual agents’ gender, age and ethnicity is determined by the artificial Intelligence’s analysis on input from the user, wherein the virtual agents are configured to be displayed in full body or half body portrait mode;
performing, during interaction with the virtual agents, wherein the artificial intelligence engine is configured for real-time speech recognition, speech to text generation, real-time dialog generation, text to speech generation, voice-driven animation, and human avatar generation;
emulating, by wherein the artificial intelligence engine is configured to emulate different voices and use different languages, wherein the visual agents are connected via network means;
set of outward-facing cameras coupled to the one or more processors;
interacting, by the user via wherein a set of touch screens coupled to the one or more processors is configured to allow the user to interact with the virtual agents by hand, facial expression, sign language and body posture;
detecting the user’s voice by a set of beamforming microphones coupled to the one or more processors, wherein the set of microphones are connected to loudspeakers; wherein the set of microphones are enabled to be beamforming,
uploading wherein pictures or voices of the user; are configured to be uploaded and processed either on a cloud server or in local or personal devices to analyze and create
creating the virtual agents wherein the virtual agents are configured to be created based on an appearance of a real human character;
transmitting the orders to cloud servers of the store.
Although reciting these additional elements, taken alone or in combination these elements are not sufficient to integrate the abstract idea into a practical application. This is because the additional elements of claim 1 are recited at a high level of generality (i.e. as generic computing hardware) such that they amount to nothing more than the mere instructions to implement or apply the abstract idea on generic computing hardware (or, merely uses a computer as a tool to perform an abstract idea). Further, the additional elements do no more than generally link the use of a judicial exception to a particular technological environment or field of use (such as the Internet or computing networks).
Secondly, the additional elements are insufficient to integrate the abstract idea into a practical application because the claim fails to (i) reflect an improvement in the functioning of a computer, or an improvement to other technology or technical field, (ii) implement the judicial exception with, or use the judicial exception in conjunction with, a particular machine or manufacture that is integral to the claim, (iii) effect a transformation or reduction of a particular article to a different state or thing, or (iv) applies or uses the judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment.
In addition to the above, upload pictures or voices and transmitting the orders to cloud servers of the store represent little more than extra-solution activity (e.g. data gathering or outputting) that contributes only nominally or insignificantly to the execution of the claimed method (see: MPEP 2106.05(g)).
In view of the above, under Step 2A (prong 2), claim 1 does not integrate the recited exception into a practical application.
Under Step 2B, examiners should evaluate additional elements individually and in combination to determine whether they provide an inventive concept (i.e., whether the additional elements amount to significantly more than the exception itself). In this case, the claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception.
Returning to representative claim 1, taken individually or as a whole the additional elements of claim 1 do not provide an inventive concept (i.e. they do not amount to “significantly more” than the exception itself). As discussed above with respect to the integration of the abstract idea into a practical application, the additional elements used to perform the claimed process amount to no more than the mere instructions to apply the exception using a generic computer and/or no more than a general link to a technological environment.
Furthermore, the additional elements fail to provide significantly more also because the claim simply appends well-understood, routine, conventional activities previously known to the industry, specified at a high level of generality, to the judicial exception. For example, the additional elements of claim 1 utilize operations the courts have held to be well-understood, routine, and conventional (see: MPEP 2106.05(d)(II)), including at least:
receiving or transmitting data over a network,
storing or retrieving information from memory,
presenting offers
Even considered as an ordered combination (as a whole), the additional elements of claim 1 do not add anything further than when they are considered individually.
In view of the above, representative claim 1 does not provide an inventive concept (“significantly more”) under Step 2B, and is therefore ineligible for patenting.
Regarding independent claim 2 and independent claim 3, claims 2-3 recite at least substantially similar concepts and elements as recited in claims 2-3 such that similar analysis of the claims would be readily apparent to one of ordinary skill in the art. As such, claims 2-3 are rejected under 35 USC 101 for at least similar rationale.
Allowable Subject Matter
Claims 1-3 are allowable over the prior art, though they remain rejected on other grounds. Claims 1-3 are allowable for at least the reasons discussed on pages 23-25 of the previous Non-Final Rejection mailed 7/2/2025.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure:
Harper (US 20150169336) discloses the use of a persona-based virtual assistant for processing voice input and textual representations (see Fig. 4, 0106, 0118, 0216)
POTO form 892-U discusses utilization of artificial intelligence and chatbots in the food and beverage service industry (see: Introduction)
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WILLIAM J. ALLEN
Primary Examiner
Art Unit 3625
/WILLIAM J ALLEN/Primary Examiner, Art Unit 3619