Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 06/02/2026 has been entered.
Detailed Action
Claims 1 – 9, 11, 13, and 19 – 27, are pending.
The effective filing date of the present application is 08/09/2023.
Response to Amendment
Applicant's amendment to claim 26 has rendered a previous rejection of claims 26 and 27 as moot; therefore, the previous rejection under 35 U.S.C. 112(b) for these claims is withdrawn.
The examiner will address applicant's remarks at the end of this office action.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1 – 9, 11, 13, and 19 – 27, are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
At Step 1 of analysis, the instant claims are directed towards a method and systems. Thus, all claims fall within one of the four statutory categories and are considered eligible subject matter.
At Step 2A, Prong One, of analysis, the claims describe evaluating the performance of retail outlets with regards to compliance with required specific conditions and a planogram. This evaluation requires observing certain data (monitored data), evaluating that data (determining compliance and scores), then forming a final judgment or opinion (performing an action). Observations, evaluations, and judgments are concepts that recite a mental processes and are an abstract idea.
Claim 1, which is illustrative of claims 7 and 13, contains elements that define this abstract idea (and are highlighted below):
A method of assessing performance of a plurality of outlets, the method comprising:
receiving monitored data related to a plurality of predefined parameters corresponding to each product stored in each of the plurality of outlets, wherein the monitored data is received from one or more sensor clusters deployed in each of the plurality of outlets;
determining planogram compliance based on the monitored data and a predefined planogram associated with each of the product;
determining an ambience score of each product category in each of the plurality of outlets based on the corresponding monitored data, the determined planogram compliance, and one or more compliance conditions pre-set for each of the plurality of predefined parameters of the corresponding product category, wherein each of the product is associated with one of each of the product category, wherein the determining the ambience score further comprises computing, for each of the plurality of predefined parameters, a respective parameter compliance value by comparing an actual sensor reading from the one or more sensor clusters against an expected compliant range for the corresponding predefined parameter of the corresponding product category;
determining a compliance assessment score for each of the plurality of outlets based on the ambience score of each of the product category of each of the plurality of outlets;
assessing performance of each of the plurality of outlets based on the compliance assessment score; and
performing one or more actions based on the compliance assessment score of each of the plurality of outlets, wherein the one or more actions comprises at least one of: providing real-time alerts to at least one of a manufacturer of each of the product, a distributor of each of the product and merchants of each of the plurality of outlets, or providing feedback via a merchant device to the merchants of each of the plurality of outlets.
At Step 2A, Prong Two, of eligibility analysis, the Examiner has determined that the identified abstract idea (judicial exception) is not integrated into a practical application because the additional elements are merely instructions to apply the abstract idea to a computer, as described in MPEP 2106.05(f). Further, in MPEP 2106.05(f) it is noted that "[use] of a computer or other machinery in its ordinary capacity for economic or other tasks (e.g., to receive, store, or transmit data) or simply adding a general-purpose computer or computer components after the fact to an abstract idea does not integrate a judicial exception into a practical application or provide significantly more.” Therefore, according to the MPEP, this is not solely limited to computers but includes other technology that, recited in an equivalent to “apply it,” is a mere instruction to perform the abstract idea on that technology.
Claims 1, 7, and 13, recite only the following additional elements:
one or more sensor clusters;
a device;
an assessment system for assessing performance of a plurality of outlets, the assessment system comprising: a processor; and a memory, communicatively coupled to the processor, wherein the memory stores processor-executable instructions;
non-transitory computer readable medium including instruction stored thereon.
These elements are mere instructions to apply the abstract idea to a computer, per MPEP § 2106.05(f). Applicant has described these computing elements generically in the disclosure, at Specification [0034 – 0035 and 0048 – 0049] and Figures 1B and 2 as filed. Accordingly, alone and in combination, these additional elements do not integrate the abstract idea into a practical application. The claims are directed to an abstract idea.
At Step 2B of analysis, the Examiner has determined that the claims do not include additional elements that are sufficient to amount to significantly more than the judicial exceptions because they do not amount to more than mere instructions to apply the abstract idea to a computer, per MPEP 2106.05(f). These include: one or more sensor clusters; a device; an assessment system comprising: a processor; and a memory, non-transitory computer readable medium including instruction stored thereon). Instructions to apply the exception do not provide for significantly more. See MPEP 2106.05(f).
Dependent claims 2, 5, 6, 8, and 11, contain limitations that are further recitations to the same abstract ideas found in claims 1 and 7. Recitations to parameters (to be observed and evaluated), comparing and generating scores (evaluating), and one or more actions based on the compliance assessment (a judgment), are further refinements of what to observe and what judgment is needed. They are recitations directed to the mental process described. Furthermore, these claims include recitations that amount to no more than simply instructing one to implement the abstract idea on a computer, using the generically described devices noted above; (the assessment system discussed above). This does not render the claims as being patent eligible. See MPEP § 2106.04(d).
Dependent claims 3, 4, and 9, contain limitations that are further recitations to the same abstract ideas found in claims 1 and 7. Recitations to type of, and utilization of, sensors, are further recitations to no more than simply instructing one to implement the abstract idea on a computer, using the generically described devices noted above; (one or more sensor cluster). This does not render the claims as being patent eligible. See MPEP § 2106.04(d).
Dependent claims 19 and 25 contains limitations that are further recitations to the same abstract idea found in claim 1. Recitations to thresholds of temperature and humidity, and locations, are refinements of the data observed and evaluated. Therefore, they are directed to the abstract mental process. Furthermore, these claims amount to no more than simply using the generically described devices noted above; (one or more sensor cluster). This does not render the claims as being patent eligible. See MPEP § 2106.04(d).
Dependent claims 20 – 23, 26, and 27, contains limitations that are further recitations to the same abstract idea found in claims 1 and 7. Recitations to image capture, are directed to the data observed and evaluated. Furthermore, these claims amount to no more than simply using the generically described devices noted above; (image capturing unit). This does not render the claims as being patent eligible. See MPEP § 2106.04(d).
Dependent claim 24 contains a limitations that is instructing one to perform the abstract idea (determining compliance) in a computer environment. “In an embodiment, the assessment system may use trained Artificial Intelligence (AI) model to perform image processing and compare the captured images.” This is generic description of this technology and does not integrate the abstract idea into a practical application.
Therefore, for the reasons set above, claims 1 – 9, 11, 13, and 19 – 27, are directed to an abstract idea without integration into a practical application and without significantly more.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 1 – 9, 11, 13, and 19 – 27, are rejected under 35 U.S.C. 103 as being unpatentable over Whitman (US 2021/0081883), in view of Adato (US 2021/0398067).
Regarding claims 1, 7, and 13, Whitman discloses: an assessment system for assessing performance of a plurality of outlets, the assessment system comprising: a processor; and a memory, communicatively coupled to the processor, wherein the memory stores processor-executable instructions; and, non-transitory computer readable medium including instruction stored thereon; (see [0252 – 0255] detailing a system for monitoring quality of perishable goods/services throughout a distribution chain);
a method of assessing performance of a plurality of outlets, the method comprising: receiving monitored data related to a plurality of predefined parameters corresponding to each product stored in each of the plurality of outlets, wherein the monitored data is received from one or more sensor clusters deployed in each of the plurality of outlets; (first, see [0103] where a system for monitoring the condition of a plurality of individual items of sale is disclosed; see also [0134] detailing a method for monitoring and reporting the data. See also Figures 20 – 22. At [Abstract], Whitman details the system may include a plurality of micro-climate sensors disposed on a floor of a store, each structured to generate store floor data corresponding to items of sale on the floor. At [0007], Whitman outlines a sensor cluster may include micro-climate sensors that remain stationary and provide data regarding environment, and/or equipment related data, e.g., power usage of a cooler, associated with the items of sale. Lastly, Whitman discloses a plurality of outlets when detailing the supply chain may include one or more sources, distribution centers, and/or stores; and, offers examples of stores include supermarkets, farmer's markets, food pantries, cafeterias, restaurants, and/or food stands locations in stores);
determining a compliance assessment score for each of the plurality of outlets based on the ambience score of each of the product category of each of the plurality of outlets; (at [0202], a method for determining a score is disclose and score values are compared to compliance with standards and SOPs);
assessing performance of each of the plurality of outlets based on the compliance assessment score; (see [Abstract], disclosing monitored store analysis data, as a measure of the store’s (outlet) compliance);
computing, for each of the plurality of predefined parameters, a respective parameter compliance value by comparing an actual sensor reading from the one or more sensor clusters against an expected compliant range for the corresponding predefined parameter of the corresponding product category; (First, Whitman discloses an inventive concept to generate product flow data via climate sensors. [0007]. Whitman’s method further interprets this data and determines a score value, [0013]. This analysis includes comparing the store data to SOP data, [0141]. This SOP data further defined at [0116] and Figure 9. Whitman further suggests product placements (as a planogram may advise) when disclosing locations within a store, on a display store, [0101], and shelf location [0245];
performing one or more actions based on the compliance assessment score of each of the plurality of outlets, wherein the one or more actions comprises at least one of: providing real-time alerts to at least one of a manufacturer of each of the product, a distributor of each of the product and merchants of each of the plurality of outlets, or providing feedback via a merchant device to the merchants of each of the plurality of outlets; (see [0245] detailing real-time status tracking and real-time corrective actions, including alerts. See also 0145] detailing actions to be taken. Figures 28 and 29 further illustrate product flow data compared to SOP data; leading to recommended actions and alerts. Therefore, Whitman discloses this element within the instant claims; including, [performing one or more actions…comprising at least one of: “providing real-time alerts to at least one of a manufacturer, a distributor, merchants”.
Not disclosed by Whitman is:
a) determining planogram compliance based on the monitored data and a predefined planogram associated with each of the product;
b) determining an ambience score of each product category in each of the plurality of outlets based on the corresponding monitored data, the determined planogram compliance, and one or more compliance conditions pre-set for each of the plurality of predefined parameters of the corresponding product category, wherein each of the product is associated with one of each of the product category.
However, Adato discloses a method for planogram compliance in retail stores and teaches identifying products and monitoring planogram compliance using analysis of image data, at [0006]; thus, teaching a), above.
Adato further teaches compliance scoring for metrics of a specific retail store, at [0230]. Adato further adds other product parameters, at [0183]. Adato teaches reports that summarize these scoring methods and illustrates these reports; see Figures 11A – 11C; thereby, teaching b), above.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to score stores per an ambience (storage) and other parameter monitoring method, per the method of Adato, within Whitman’s method for determining compliance, because this provides a desired result of removing human workers from having to visit the stores, as well as offering techniques that are more efficient and aligned. See Adato’s background at [0003].
Regarding claims 2 and 8, the combination of Whitman and Adato discloses all the limitations of claims 1 and 7, above. Whitman further discloses: wherein the plurality of predefined parameters are associated with at least one of: temperature of a storage area of each of the product, humidity of the storage area, location of each of the product in the storage area and images of associated with each of the product stored in the storage area, and wherein the images are indicative of at least one of: a layout associated with each of the product in the storage area, and a brand name of each of the product in the storage area; (first, see [0159] detailing SOPs (parameters) are set for temperatures for freezers. See also [0117] teaching temperature, humidity and location of a product being monitored. Whitman adds image processing at [0181-0188].)
Regarding claims 3 and 9, the combination of Whitman and Adato discloses all the limitations of claims 1 and 7, above. Whitman further discloses: wherein the one or more sensor cluster comprises at least one of: temperature sensor, humidity sensor, an image capturing unit, a location sensor, a cellular module, or a motion sensor; (see [0117] where the sensors monitor environmental data, such as temperature and humidity).
Regarding claim 4, the combination of Whitman and Adato discloses all the limitations of claim 3, above. Whitman further discloses: wherein the one or more sensor clusters deployed in each of the plurality of outlets varies in terms of type of sensors, number of sensors, position of sensors, and manner of deployment of sensors based on one or more outlet characteristics; (first, see [0105] where it is disclosed “sensors 212 may be associated with, and/or attached to, the items of sale 210 at any portion of the supply chain 110, e.g., at a source 112, distribution center 116, store 118, a location in a store, a customer location, and/or any point/location therebetween”. Thus, disclosing number of, position, and manner of deployment. See also [0117] where the sensors monitor environmental data, such as temperature and humidity. Thus, disclosing type of sensor).
Regarding claims 5 and 11, the combination of Whitman and Adato discloses all the limitations of claims 1 and 7, above. Whitman further discloses: wherein assessing the performance comprises: comparing the compliance assessment score of each outlet of the plurality of outlets with predefined acceptable threshold level associated with the compliance assessment score; and generating a rating for each of the plurality of outlets based on the comparison and one or more outlet characteristics, wherein the one or more outlet characteristics comprises at least one of: a location of the outlet, or a class of the outlet and a retail channel of the outlet; (see [0202], where Whitman discloses the scoring method, and includes “the score value may represent an individual store, a chain of stores, a brand of stores, a subset of stores in a chain, and the like.” This compares to location of outlet, class, and retail channel. Because Whitman’s disclosure describes systems and methods for determining compliance with an entity’s SOPs, this discloses compliance with predefined acceptable levels. In addition, Whitman details the system includes a plurality of stores, distributed across a plurality of retail locations. Further disclosing elements within the instant claims).
Regarding claim 6, the combination of Whitman and Adato discloses all the limitations of claim 1, above. Whitman further discloses: wherein assessing the performance further comprises: performing one or more actions based on the compliance assessment score of each of the plurality of outlets, wherein the one or more actions comprises: providing real-time alerts to at least one of a manufacturer of each of the product, a distributor of each of the product and merchants of each of the plurality of outlets, providing feedback via a merchant device to the merchants of each of the plurality of outlets, upgrading or downgrading a class of one or more outlets of the plurality of outlets, modifying a supply of one or more of each of the product to one or more of each of the plurality of outlets, and determining one or more outlets of the plurality of outlets as ineligible outlets; (first, see [0202] where a score may represent an individual store, and [0203] where the score is presented as dashboard, and recommendations of actions are displayed. See also Fig. 63).
Regarding claims 19 and 25, the combination of Whitman and Adato discloses all the limitations of claims 1 and 7, above. Whitman further discloses: wherein the one or more compliance conditions are associated with at least one of: a threshold temperature range, a threshold humidity range, predefined location ranges of each of the product stored in the product storage area, the predefined planogram, predefined brand visibility conditions and predefined brand contamination conditions; (see [0126] disclosing monitoring data includes temperature and humidity thresholds).
Regarding claims 20 and 26, the combination of Whitman and Adato discloses all the limitations of claims 3 and 9, above. Whitman further discloses: wherein the monitored data comprises captured images of each of the product received from the image capturing unit; (see [0127 and Figures 17 and 18 disclosing an image capturing device).
Regarding claims 21 and 27, the combination of Whitman and Adato discloses all the limitations of claims 20 and 26, above.
Not disclosed by Whitman is: wherein determining the planogram compliance comprises comparing the captured images with the predefined planogram associated with each of the product.
However, Adato discloses a method for planogram compliance in retail stores and teaches identifying products and monitoring planogram compliance using analysis of image data, at [0006]. Further, see [0247] suggesting the comparison between a planogram and one or more images. For example, a computing device may analyze the one or more images to determine an actual placement of products on the store shelf).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to compare planograms with images, per the method of Adato, within Whitman’s method for determining compliance, because this provides a benefit, such as a technological method to provide a dynamic solution that will automatically monitor retail spaces. See Adato [0003].
Regarding claim 22, the combination of Whitman and Adato discloses all the limitations of claim 20, above.
Not disclosed by Whitman is: wherein the method further comprises: determining brand visibility based on the captured images and the predefined brand visibility conditions; and determining the ambience score based on the corresponding monitored data, the determined planogram compliance, the determined brand visibility, and one or more compliance conditions pre-set for each of the plurality of predefined parameters of the corresponding product category.
However, Adato discloses a method for planogram compliance in retail stores and teaches in-store execution by providing adequate visibility to ensure that the right products are located at preferred locations on the shelf. See [0229] and Figures 11C. Adato teaching that the right product is implicitly defined by brand; see [0115-0117]. See also [0123] visually searching a brand name, Adato then further adds this data into the scoring method disclosed at [0230].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to score stores per a visibility compliance score and other parameter monitoring methods, per the method of Adato, within Whitman’s method for determining compliance, because this provides a desired result of removing human workers from having to visit the stores, as well as offering techniques that are more efficient and aligned. See Adato’s background at [0003].
Regarding claim 23, the combination of Whitman and Adato discloses all the limitations of claim 20, above.
Not disclosed by Whitman is: determining brand contamination based on the captured images and the predefined brand contamination conditions; and determining the ambience score based on the corresponding monitored data, the determined planogram compliance, the determined brand contamination, and one or more compliance conditions pre-set for each of the plurality of predefined parameters of the corresponding product category.
However, Adato discloses a method for planogram compliance in retail stores and teaches image processing to determine compliance with planograms by image matching for proper brand locations on shelves, see [0192 and 0207]. See also [0363, 0402, and 0425] discussing improper locations among disparate brands. Noting that the instant disclosure defined brand contamination as storing a competitor brand in the asset provided by a particular brand (location), Adato is concluded to accurately disclose the instant claim limitations.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to score per brand contamination, per the method of Adato, within Whitman’s method for determining compliance, because this provides the intended result of making sure a specific product (brand – Coca-Cola® as opposed to Pepsi®, in Adato), is stored or displayed in a specific location. While defined as contamination within the instant application, Adato accomplishes the same result of having a competitor brand identified as being in the competition’s storage location.
Regarding claim 24, the combination of Whitman and Adato discloses all the limitations of claim 1, above. Whitman further discloses: wherein determining the planogram compliance is based on a trained artificial intelligence (AI) model; (see [0224] disclosing an artificial intelligence circuit to evaluate products based on images).
Response to Arguments
Applicant's arguments filed 06/02/2026 have been fully considered but they are not persuasive. Applicant’s arguments discuss rejection of prior claims under 35 U.S.C. § 101. Applicant’s first remarks contend that the amended claims do not recite a mental process, at Step 2A, Prong One, adding that the claims recite a “specific, multi-step technical process that cannot practically be performed in the human mind”. See page 9. Based on the reasoning that follows, the Examiner respectfully disagrees with Applicant’s arguments.
Step 2A is a two-prong inquiry, in which examiners determine in Prong One whether a claim recites a judicial exception. A claim recites a judicial exception when the judicial exception is “set forth” or “described” in the claim. The Examiner has detailed above how the instant amended claims set forth a process for evaluating the performance of retail outlets with regards to compliance with required specific conditions and a planogram. Therefore, the amended claims describe an assessment method requiring observing certain data (monitored data), evaluating that data (determining compliance and scores), then forming a final judgment or opinion (performing an action) based on the evaluations. These observations, evaluations, and judgments are concepts that recite a mental processes and are an abstract idea.
Applicant’s amendments to the claims have added steps for computing compliance with certain parameters by comparing readings to an expected range. Based upon this comparison, one or more actions are initiated; these include giving alerts or feedback to certain parties. This actions are also mental processes because one skilled in the art would know to evaluate sensor readings and make a judgment based on scoring. This is analogous to a store manager, observing temperature readings being too high and notifying a repairman or manager that settings need to be adjusted. Therefore, as noted above, the amended claims describe a mental process.
The Examiner adds that claims can recite a mental process even if they are claimed as being performed on a computer. Courts have found claims requiring a generic computer or nominally reciting a generic computer may still recite a mental process even though the claim limitations are not performed entirely in the human mind. The instant amended claims recite receiving data, comparing readings, and assessing performance. These are all steps that the human mind has can perform when performing traditional merchandising. Applicant discloses that “[o]ne of the traditional techniques used is to hire third party auditors or empower the distributor sales representative to conduct in-store audits.” Specification [0004]. Applicant’s arguments are not persuasive.
Applicant next argues that at Step 2A, Prong Two, the “claims are integrated into a practical application”. See page 10. The Examiner respectfully disagrees with these arguments. At Step 2A, Prong Two analysis, a judicial exception is integrated into a practical application if the additional elements describe certain elements that show this integration. These considerations are set forth in MPEP 2106.05(a) through (c), and MPEP 2106.05(e) through (h). No such additional elements are present within the instant amended claims that would show integration. As detailed above, the additional elements within the amened claims describe mere instructions to apply the abstract idea to a computer, per MPEP 2106.05(f). These include: a device; an assessment system for assessing performance of a plurality of outlets, comprising: a processor; and a memory, communicatively coupled to the processor, wherein the memory stores processor-executable instructions; and, non-transitory computer readable medium including instruction stored thereon. These elements are mere instructions to apply the abstract idea to a computer, per MPEP § 2106.05(f). Applicant has described these computing elements generically in the disclosure, at Specification [0034 – 0035 and 0048 – 0049] and Figures 1B and 2 as filed. Accordingly, alone and in combination, these additional elements do not integrate the abstract idea into a practical application.
Further to Applicant’s use of sensor clusters; these elements are also mere instructions to apply the abstract idea to a computer, per MPEP § 2106.05(f). Notably is Applicant’s disclosure that “[t]he monitored data from the one or more sensor cluster may be transmitted to the assessment system.” Specification [0029]. Thus, describing use of a computer or other machinery in its ordinary capacity for economic or other tasks (e.g., to receive, store, or transmit data). Applicant has also described these devices and components elements generically in the disclosure, at Specification [0029], which includes: “The one or more sensor cluster may be used to transmit monitored data (such as data monitored by the one or more sensor cluster of the products) to the proposed assessment system. The one or more sensor cluster may include multiple sensors for example, a temperature sensor, a humidity sensor, an image capturing unit, a location sensor, a cellular module, and a motion sensor to monitor the products.” See also [0033]; “Exemplary architecture may include a proposed assessment system, a plurality of outlets (also referred as plurality of outlets), one or more sensor cluster (also collectively referred as one or more sensor cluster or sensor cluster) and merchant devices (also referred merchant devices).” Applicants arguments that these additional elements and claims provide for integration into a practical application are not persuasive.
Applicant would further like to rely on Desjardins as providing analogous reasoning for showing an improvement to technology. See pages 10 – 11. Applicant’s reliance on Desjardins is not persuasive. First, the December 05 memorandum noted initially, that, “[t]hese updates are not intended to announce any new USPTO practice or procedure and are meant to be consistent with existing USPTO guidance.” Therefore, the Examiner maintains that analysis under 35 U.S.C. § 101 is correct, accurate, and hereby maintained as detailed by the rejection within this Office Action.
Second, the panel In Ex Parte Desjardins, credited benefits including reduced storage, reduced system complexity and streamlining, and preservation of performance attributes associated with earlier tasks during subsequent computational tasks as technological improvements that were disclosed in the patent application specification. Specifically, at Step 2A Prong Two analysis, the panel then determined that the specification identified improvements as to how the machine learning model itself operates, including training a machine learning model to learn new tasks while protecting knowledge about previous tasks to overcome the problem of “catastrophic forgetting” encountered in continual learning systems. Importantly, the ARP evaluated the claims as a whole in discerning at least the limitation “adjust the first values of the plurality of parameters to optimize performance of the machine learning model on the second machine learning task while protecting performance of the machine learning model on the first machine learning task” reflected the improvement disclosed in the specification. Accordingly, the claims as a whole integrated what would otherwise be a judicial exception instead into a practical application at Step 2A Prong Two.
No such technical problems are outlines within the instant Specification and no technical solutions are claimed. Applicant discloses the problem as “assessing performance of a plurality of outlets”, while stating, “the claimed steps clearly bring an improvement in the functioning of the system itself”. A method of assessing the plurality of outlets is not a technical concept. It is a mental process requiring evaluating data and making comparisons and scores based on data. As detailed earlier, traditional merchandising techniques are performed by manufacturers and their distributors – by hiring third party auditors or representatives. Thus, defining evaluations and judgments typically performed by humans. Because the disclosure does not define a technical problem, Applicant’s arguments are not persuasive.
Continuing along this line of arguments, the Examiner adds that the claims do not contain steps or components that provide a technical improvement as Applicant argues. The amended claims merely describe evaluating the performance of retail outlets with regards to compliance with required specific conditions and a planogram. This evaluation requires observing certain data (monitored data), evaluating that data (determining compliance and scores), then forming a final judgment or opinion (performing an action). These elements do not allude to improvements to monitoring, capturing, sending, or storing data. Further, steps for scoring and determining compliance can practically be performed in the human mind, (and do not necessarily require a technical environment). Therefore, Applicant cannot point to any technical solution to any technical problem as detailed within Desjardins and Applicant’s arguments are not persuasive.
Regarding Applicant’s arguments as to sensor clusters as a specific technical configuration; the Examiner respectfully disagrees with Applicant. See page 11. As detailed throughout prosecution, the elements of sensor cluster, has been concluded to be mere instructions to apply the abstract idea to a computer, per MPEP § 2106.05(f). Notably is Applicant’s disclosure that “[t]he monitored data from the one or more sensor cluster may be transmitted to the assessment system.” Specification [0029]. Thus, describing use of a computer or other machinery in its ordinary capacity for economic or other tasks (e.g., to receive, store, or transmit data). Applicant has also described these devices and components elements generically in the disclosure, at Specification [0029], which includes: “The one or more sensor cluster may be used to transmit monitored data (such as data monitored by the one or more sensor cluster of the products) to the proposed assessment system. The one or more sensor cluster may include multiple sensors for example, a temperature sensor, a humidity sensor, an image capturing unit, a location sensor, a cellular module, and a motion sensor to monitor the products.” See also [0033]; “Exemplary architecture may include a proposed assessment system, a plurality of outlets (also referred as plurality of outlets), one or more sensor cluster (also collectively referred as one or more sensor cluster or sensor cluster) and merchant devices (also referred merchant devices).” Applicants arguments that these additional elements are a specific configuration are not persuasive.
Applicant further argues “other meaningful limitation”, and points to Example 46 as showing an analogous requirement of performing concrete corrective actions, by providing alerts. See page 12. This argument is not persuasive. Noting that claim 2 in Example 46 also cited a mental process, at Step 2A, Prong Two, a certain limitation within that claim 2 specified that the monitoring component automatically sends a control signal to the feed dispenser to dispense a therapeutically effective amount of supplemental salt and minerals mixed with the feed when the analysis results for the animal indicate that the animal is exhibiting an aberrant behavioral pattern indicative of grass tetany. Thus, that limitation “does not merely link the judicial exception to a technical field, but instead adds a meaningful limitation in that it can employ the information provided by the judicial exception (the mental analysis of whether the animal is exhibiting an aberrant behavioral pattern indicative of grass tetany) to operate the feed dispenser. The Examiner respectfully disagrees that the instant claims recite any similar meaningful limitation. The instant claims merely recite providing real-time alerts, or providing feedback. Notifying someone that a score is low does not automatically act analogous to “automatically operate a feed dispenser to dispense a therapeutically effective amount of supplemental salt and minerals mixed with the feed…”. As applicant notes, upon receiving an alert, a merchant might do something. This inaction is hardly descriptive of a meaningful limitation that employs the information provided by the judicial exception (the mental analysis) to further operate any equipment or enact any step to the claimed method that adds a meaningful limitation to traditional merchandising efforts.
Further, as explained within the Example disclosure, automatically identifying aberrant behavioral patterns and operating farm equipment based on such identification avoids the need for the farmer to evaluate the behavior of each animal in the herd on a continual basis, and then manually take appropriate action for each animal exhibiting aberrant behaviors. The certain claimed limitation (d) in combination with the feed dispenser enables the control of appropriate farm equipment based on the automatic detection of grass tetany, which goes beyond merely automating the abstract idea. Applicant’s argument is not persuasive.
Applicant next argues as to analysis at Step 2B and remarks that the claims recite significantly more. See page 12. The Examiner respectfully disagrees with Applicant. As detailed above, at Step 2B of analysis, the Examiner has determined that the claims do not include additional elements that are sufficient to amount to significantly more than the judicial exceptions because they do not amount to more than mere instructions to apply the abstract idea to a computer, per MPEP 2106.05(f). These include: one or more sensor clusters; a device; an assessment system comprising: a processor; and a memory, non-transitory computer readable medium including instruction stored thereon). Instructions to apply the exception do not provide for significantly more. See discussion above and MPEP 2106.05(f).
Applicant next argues rejection of all prior claims under 35 U.S.C. § 103. See page 14. In view of the amendments to the claims and upon additional prior art scrutiny, Applicant’s arguments are not persuasive. The Examiner notes that Applicant’s arguments are pointed to any combination of Whitman and Adato failing to teach or suggest the specific integrated framework recited in the amended independent claims. See page 15. Applicant adds the claims requires determining an ambience score that is based on three inputs- the monitored data, planogram compliance, and compliance conditions. The Examiner respectfully disagrees that the combination of Whitman and Adato fail to teach or suggest this combination.
Whitman’s inventive concept is generating product flow data via climate sensors. [0007]. Whitman’s method further interprets this data and determine a score value, [0013]. This analysis includes comparing the store data to SOP data, [0141]. This SOP data further defined at [0116] and Figure 9. Applicant adds the element of planogram compliance; however, this element is taught by Adato as a scoring attribute. Whitman itself suggests product placements (as a planogram may advise) when disclosing locations within a store, on a display store, [0101], and shelf location [0245]. Further, Whitman is ardent on requiring corrective actions and teaches certain elements within the instant, amended claims; including, [performing one or more actions…comprising at least one of: “providing real-time alerts to at least one of a manufacturer, a distributor, merchants”; see [0245] detailing real-time status tracking and real-time corrective actions, including alerts. See also 0145] detailing actions to be taken. Figures 28 and 29 further illustrate product flow data compared to SOP data; leading to recommended actions and alerts. Therefore, the combination of Whitman and Adato are concluded to disclose all the limitations of amended claims 1 – 9, 11, 13, and 19 – 27. Further citations for the newly amended claims are contained within the rejection for all claims in this Office Action.
Applicant further argues elements within claims 19, 22, 23, and 25. See pages 15-16. These arguments are not persuasive. Regarding claims 19 and 25, the combination of Whitman and Adato discloses all the limitations of claims 1 and 7, to which they depend. Whitman further discloses: wherein the one or more compliance conditions are associated with at least one of: a threshold temperature range, a threshold humidity range, predefined location ranges of each of the product stored in the product storage area, the predefined planogram, predefined brand visibility conditions and predefined brand contamination conditions; (see [0126] disclosing monitoring data includes temperature and humidity thresholds).
Regarding claim 22, the combination of Whitman and Adato discloses all the limitations of claim 20, to which it depends. Adato is included as it discloses a method for planogram compliance in retail stores and teaches in-store execution by providing adequate visibility to ensure that the right products are located at preferred locations on the shelf. See [0229] and Figures 11C. Adato teaching that the right product is implicitly defined by brand; see [0115-0117]. See also [0123] visually searching a brand name, Adato then further adds this data into the scoring method disclosed at [0230]. Applicant’s arguments are not persuasive.
Regarding claim 23, the combination of Whitman and Adato discloses all the limitations of claim 20, to which it depends. Adato further discloses a method for planogram compliance in retail stores and teaches image processing to determine compliance with planograms by image matching for proper brand locations on shelves, see [0192 and 0207]. See also [0363, 0402, and 0425] discussing improper locations among disparate brands. Noting that the instant disclosure defined brand contamination as storing a competitor brand in the asset provided by a particular brand (location), Adato is concluded to accurately disclose the instant claim limitations. Applicant’s arguments are not persuasive.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Adato discusses managing inventory of perishable products. Adelberg discloses a vending store inventory management and reporting system. Hofman details a method for identifying retail products and determining retail product arrangements.
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DONALD J. EDMONDS
Examiner
Art Unit 3629
/SARAH M MONFELDT/Supervisory Patent Examiner, Art Unit 3629
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