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 . In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
DETAILED ACTION
This Final Office Action is in response Applicant communication filled on 08/22/2025.
Status of Claims
Claims 1 and 3-7, 9-15 were amended by Applicant with the 08/22/2025 amendment.
Claims 1-16 remain pending and have been rejected as follows.
Terminal Disclaimer/ Double Patenting
- The terminal disclaimer filed on 08/22/2025 disclaiming the terminal portion of any patent granted on this application which would extend beyond the expiration date of Patent 11562386 has been reviewed and is accepted. The terminal disclaimer has been recorded. Thus, the non-statutory double patenting rejection in Non-Final Act 04/24/2025 p.2-p.3 ¶2 has been withdrawn.
Response to Applicant’s rebuttal of Claim Rejections under 35 USC 112
- 112(b) and (d) rejections in the previous act are withdrawn in view of Applicant’s amendment as suggested by examiner.
Response to Applicant’s rebuttal of Claim Rejections under 35 USC 101
- Step 2A Prong one: Remarks 08/22/2025 p.11 ¶4-p.12 cites Fig.4 and Spec. ¶ [0065]-[0066] to argue that the amended claims are directed to simulation aspects of the intelligent agent, not to actual retailer system or environment 450 of Fig.4. Remarks 08/22/2025 p.13-p.14 further argues the claims are not directed to improvement to an abstract entrepreneurial concept through optimization or simulation for promotional performance (Remarks 08/22/2025 p.13 ¶1), as identified by Non-Final Act 04/24/2025 p.7 but rather to a simulation, which is argued by Applicant as not one of the enumerated sub-grouping of fundamental economic principles or practices, commercial or legal interactions, etc. or an enumerated sub-group of the broader Certain Methods of Organizing Human Activities but rather alleged by Applicant at Remarks 08/22/2025 p.14 ¶3-p.15 ¶1 as a technical operation that involves the intelligent agent. Further, Remarks 08/22/2025 p.15 ¶2-p.16 ¶2 asserts that the technical problem is that retailers consider one promotion at a time and do not consider the impact of a sequence of promotions on total sales over a time period, and the technical solution is the use of simulation based on prior actions of the system, a simulated state of an environment, and a promotional model, with the Remarks 08/22/2025 p.16 ¶3-¶4 further comparing the current claims to DDR and Enfish. Further, Remarks 08/22/2025 p.16 last ¶-p.17 ¶3 further asserts “providing for an expected reward for each of the one or more candidate itemsets”, “simulating a sales metric of the plurality of product records based on the respective candidate itemset” is not directed to certain methods of organizing human activities, entrepreneurial or other abstract solutions. Then, Remarks 08/22/2025 p.17 ¶5-p.19 ¶4 argues the claims are similar to Examples 38,39. Lastly, Remarks 08/22/2025 p.19 ¶5-mid-p.20, emphasizes the “reinforcement learning algorithm”, “a simulated state of an environment”, “storing the sensor data in the short-term” and “long-term memory”, and “correcting the simulated state” to argue that the steps recited in independent Claim 1 cannot be practically performed in the human mind.
- Examiner fully considered the Step 2A prong 1 arguments but respectfully disagrees finding them unpersuasive, starting from Applicant’s own admission that the claims are directed to simulation for promotional performance, with the problem being that retailers do not consider the impact of a sequence of promotions on the total sales over a period of time, and the solution being use of simulation based on prior actions of the system, a simulated state of an environment, and a promotional model. Based on Applicant admission Examiner reincorporates all findings of Non-Final At 04/24/2025 p.5 last ¶-p.6 ¶1, to resubmit that “simulating promotional performance”, including “providing for an expected reward for each of the one or more candidate itemsets”, “simulating a sales metric of the plurality of product records based on the respective candidate itemset”, as raised by Remarks 08/22/2025 p.15 ¶2-p.16 ¶2, p.16 last ¶-p.17 ¶3, is not meaningfully different than the offer-based optimization of OIP Techs Inc v Amazon.com, Inc., 788 F.3d 1359,1362-63, 115 USPQ2d 1090, 1092 (Fed. Cir. 2015) cited under MPEP 2106.04(a)(2) II B iii, which falls under the Certain Methods of Organizing Human Activities grouping. Here, the current, “simulating promotional performance”, are similar to the OIP’ claims supra because the simulation is interpreted as an optimization example of an offer, which, at its turn is interpreted as a promotion. Also, similar to the current claims, the OIP’s claims did not necessarily focus on the actual retailing system or environment. Yet, OIP’s claims were nonetheless deemed patent ineligible by the Federal Circuit in OIP Techs Inc v Amazon.com supra.
It then follows that here the analogous argument that the claims are not recited to the retailer system or environment, as made by Applicant at Remarks 08/22/2025 p.12 ¶7, p.16 ¶3 would also not preclude the current claims from reciting, describing or setting forth the abstract exception.
For example, at no point does the MPEP 2106.04(a)(2) II B preclude optimization of promotions (i.e. offers) as not being an integral part, of the marketing activities. Similarly, at no point does MPEP 2106.04(a)(2) II A preclude the simulation of promotions or offers as not being part of the fundamental economic practices or principles. In fact, MPEP 2106.04(a)(2) II A ¶2 cited by Non-Final Act 04/24/2025 p.6 ¶2 last sentence to p.7, is clear that building blocks of the modern economy remain ineligible, with the term “fundamental” not used in the sense of necessarily being "old" or "well-known" citing again to OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1364, 115 U.S.P.Q.2d 1090, 1092 (Fed Cir. 2015) which ruled that a new method of price optimization was still a fundamental economic concept. Here, the simulation or optimizations of promotions or offers, and their subsequent reward based correction represent such fundamental building blocks of the modern economy, and thus remain ineligible, no matter whether or not such simulation or optimizations of promotions / offers is old or well-known as contested by Applicant in at least Remarks 08/22/2025 p.15 ¶2-p.16 ¶2.
Specifically here, far from an actual technological solution to an actual technological problem, both the asserted problem of the retailers not considering the impact of a sequence of promotions on the total sales over a period of time (Remarks 08/22/2025 p.15 ¶2- ¶3) and the asserted solution of using of simulation based on prior actions of the system, a simulated state of an environment, and a promotional model (Remarks 08/22/2025 p.16 ¶2), remain entrepreneurial and abstract, as building blocks of the modern economy, and thus remain ineligible right from the onset, no matter whether or not such the asserted solution in simulating promotions or offers and their subsequent correcti[on] “comprising the measured reward” would be intelligent over what is old and well-known in retail.
In fact, MPEP 2106.04 I, as cited by Non-Final At 04/24/2025 p.7-p.8¶1, stresses that even a “groundbreaking, innovative, or even brilliant discovery does not by itself satisfy the 101 inquiry” citing Myriad,569 U.S at 591, 106 USPQ2d at 1979. The “Myriad” rationale was corroborated by “SAP Am Inc v InvestPic” which is also cited by MPEP 2106.04(a)(2) I.C(i). Digging deeper into the Court’s rationale in SAP supra, the Examiner finds that the Court ruled that, “even if one assumes that the techniques claimed are groundbreaking, innovative, or even brilliant those features are not enough for eligibility because their innovation is innovation in ineligible subject matter. An advance of that nature is ineligible for patenting”. That is, “no matter how much of an advance in the field the claims” [would] “recite the advance” [would still] “lie entirely in the realm of abstract ideas” with no plausibly alleged innovation in non-abstract application realm. Here, as in the rationale of SAP Am Inc v. InvestPic, LLC 890 F.3d 1016,126 USPQ.2d 1638 (Fed. Cir. 2018), no matter how much intelligence or advance the “agent” would provide by use of simulation based on prior actions of the system, a simulated state of an environment, and a promotional model, as alleged by Remarks 08/22/2025 p.16 ¶3-¶4, said advance would still lie entirely within the abstract marketing realm of Certain Methods of Organizing Human Activities, with no plausibly of the alleged innovation entering the non-abstract realm. The “SAP” findings were corroborated by Versata Dev Grp Inc v SAP Am, Inc 115 USPQ2d 1681 Fed Cir 2015 again undelaying the difference between improvement to entrepreneurial goal objective and actual improvement to actual technology. MPEP 2106.04. This finding is also applicable to the Applicant’s criticism at Remarks 08/22/2025 p.15 ¶4, against the prior art of Ouimet; Kenneth J. US 20150324828 A1 noted by Non-Final At 04/24/2025 p.15, because once again the Examiner stresses that building blocks of the modern economy remain ineligible, with the term “fundamental” not used in the sense of necessarily being "old" or "well-known" citing a OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1364, 115 U.S.P.Q.2d 1090, 1092 (Fed Cir. 2015) from MPEP 2106.04(a)(2) II A ¶2.
To be also clear, considerations of novelty (35 USC 102) and non-obviousness (35 USC 103) over the prior art (argued here on Ouimet) still pertain to features that are abstract, or incapable to integrate the abstract idea or provide significantly more, which do not render the claims patent eligible (35 USC 101). Simply said, the novel and non-obviousness rationale above do not necessarily render the claims patent eligible. See for example MPEP 2106.04 I ¶5, 3rd sentence citing Mayo, 566 U.S. 71, 101 USPQ2d at 1965); Flook, 437 U.S. at 591-92, 198 USPQ2d at 198 "the novelty of the mathematical algorithm is not a determining factor at all”.
As per Applicant’s allegation at Remarks 08/22/2025 p.16 ¶3-¶4 that the claims are similar to DDR and Enfish, the Examiner submits that the current legal findings of the present claims are irreconcilably different than what was found eligible in, Enfish and DDR because here, the limitations argued at Remarks 08/22/2025 p.19 are asserted by Applicant as directed to “simulating promotional performance”, including “providing for an expected reward for each of the one or more candidate itemsets”, “simulating a sales metric of the plurality of product records based on the respective candidate itemset. At no point do the amended claims provide anything remotely analogous to the plurality of classification structures for repeated extraction and importing as required precursors for the mapping, for the referential data structures, as was the case in Enfish, 822 F.3d 1327, 1336, 118 USPQ2d 1684, 1689 (Fed. Cir. 2016) as cited by MPEP 2106.04(a). Also, at no point do the amended claims provide anything remotely analogous to the systems and methods of generating a composite webpage that combines certain visual elements of a host website with the content of a third-party merchant, as in DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 113 USPQ2d 1097 (Fed. Cir. 2014), as cited by MPEP 2106.05(d). Digging deeper into DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d at 1248, 113 USPQ2d at 1099, the Examiner finds the Court ruled that the eligible claim had additional elements that amounted to significantly more than the abstract idea, because they modified conventional Internet hyperlink protocol to dynamically produce a dual-source hybrid webpage, which differed from the conventional operation of Internet hyperlink protocol that transported the user away from the host’s webpage to the third party’s webpage when the hyperlink was activated. Here, there is nothing similar to such patent eligible technological arrangement.
As per the argued use of computer components of: “reinforcement learning algorithm”, “short-term”, and “long-term” memories in “simulating promotional performance”, with “expected reward simulating a sales metric of the plurality of product records based on the respective candidate itemset” (independent Claims 1,9), as raised by Remarks 08/22/2025 p.19 ¶5-mid-p.20, the Examiner initially points to Non-Final At 04/24/2025 p.8 ¶2 to argue that as broadly recited, such computerization can be argued as not meaningfully different than use of computer tools or computer environments in determining a price, using organizational and product group hierarchies, as was the case in Versata, 793 F.3d at 1312-13, 1331, 115 USPQ2d at 1685, 1699 as cited by MPEP 2106.04(a)(2) III C #1.
Such computerized price determination in Versata supra, would analogously correspond here to the measured reward simulation, while the use of organizational and product group hierarchies would correspond here to “the one or more selected itemsets identifying two or more products in the plurality of product records” (independent Claims 1,9), and simulated “first” and “second” “category” “hierarchy” (dependent Claims 3-5, 11-13).
Since such level of computerization did not save the claims in Versata from patent ineligibility, the Examiner reasons that here, the asserted level of computerization at Remarks 08/22/2025 p.19 ¶5-mid-p.20, in “simulating promotional performance”, with “expected reward simulating a sales metric of the plurality of product records based on the respective candidate itemset” (independent Claims 1,9) would similarly not prelude the current claims from reciting, describing or setting forth the abstract exception. In fact, the Examiner will further demonstrate at the subsequent steps that as instructed by MPEP 2106.05(f)(2)(i)1 performing a business method and underlining mathematical algorithm on a computer does not integrate the abstract idea into a practical application or provides significantly more, because it would represent mere invocation of computer components or other machinery.
As per Applicant’s reliance at Remarks 08/22/2025 p.17 ¶5-p.19 ¶4 on USPTO’s Examples 38,39, the Examiner reminds the Applicant that all the examples [including Examples 38,39] issued by the Office in conjunction with the examining guidance are merely hypothetical and non-precedential and do not carry the weight of Court decisions and hence are not used as basis for a subject matter eligibility rejection. see USPTO “2019 PEG, 101 Examples 37-42 document entitled “Subject Matter Eligibility Examples: Abstract Ideas” p.1 ¶1 2nd sentence. “The examples below are hypothetical and only intended to be illustrative of the claim analysis under the 2019 PEG” corroborating “May 2016 Update: Memorandum - Formulating a Subject Matter Eligibility Rejection and Evaluating the Applicant’s Response to a Subject Matter Eligibility Rejection”, p.5 ¶2 Section C: “USPTO issued examples in conjunction with the Interim Eligibility Guidance, including […] July 2015 Update Appendix I: Examples […]; These examples, many of which are hypothetical, were drafted to show exemplary analyses under the Interim Eligibility Guidance and are intended to be illustrative of the analysis only. While some of the fact patterns draw from U.S. Supreme Court and U.S. Court of Appeals for the Federal Circuit decisions, the examples do not carry the weight of court decisions. Therefore, the examples should not be used as a basis for a subject matter eligibility rejection.
In any event here, the argued claims are irreconcilably different than USPTO’s Examples 38 and 39. For example, Example 38 did not recite an abstract idea because it employed a simulation to more closely replicate the sound quality of an analog audio mixer by accounting for slight variances in analog circuit values that generated during the circuit’s manufacturing. Here “simulating” [the entrepreneurial and abstract] “promotional performance” as argued by Applicant is far remote from the technological audio simulation to more closely replicate the sound quality of the technological analog audio mixer by accounting for slight variances in analog circuit values generated during the technological circuit’s manufacturing, as was the case in eligible, hypothetical and non-precedential Example 38. Similarly, the currently argued independent Claims 1,9 are irreconcilably different than the technological details of the transformations to each digital facial image including mirroring, rotating, smoothing, or contrast reduction to create a modified set of digital facial images; creating a first training set comprising the collected set of digital facial images, the modified set of digital facial images, and a set of digital non-facial images; training the neural network in a first stage using the first training set, as was the case in
the eligible, hypothetical and nonprecedential USPTO’s Example 39.
Simply put here, the claims’ still recite, describe or set forth the abstract idea, with simulating promotional performance as contested by Applicant above being not technological but entrepreneurial, and with its computerized execution being, at most, an attempt at applying the abstract idea, [MPEP 2106.05(f)] such as applying or involving the intelligent agent and associated simulation as argued at Remarks 08/22/2025 p.14 ¶3, last sentence, and Remarks 08/22/2025 p.16 ¶2 respectively.
Such computerization could also be argued as a technological environment or a computational field of use [MPEP 2106.05(h)] upon which to narrow the abstract idea. These concepts will be more granularly tested and explained at the subsequent steps below.
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- Step 2A Prong two: Remarks 08/22/2025 mid-p.21 to p.22 ¶3 argues that even if the claims do a judicial exception, the emphasized limitations of “executing a reinforcement learning algorithm to simulate”, “an expected reward for each of the one or more candidate itemsets” and “wherein the sensor data is representative of a measured state of the environment”; “storing the sensor data in the short-term memory”; “storing the sensor data in the long-term memory”; “correcting the simulated state of the environment based on the sensor data comprising the measured reward” go beyond generally linking use of abstract idea to a particular technological environment, since they allegedly transform, through “reinforcement learning” and respective simulat[ion] any abstract concept into non-abstract computerized functions and simulations substantially distinct from any contemporary commercial practices, thus integrating the abstract idea into a practical application or providing significantly more.
Remarks 08/22/2025 p.22 ¶4-p.23 ¶1 further argue that the amended independent claims provide example of technological improvement that integrates the abstract idea into a practical application by incorporating rules similar to MPEP 2106.05(a)(II), recited here as “a reinforcement learning algorithm”, execut[ed], “to simulate”, “at the simulation component, based on the short-term memory of the memory component, the long-term memory of the memory component, a simulated state of an environment, and the retail promotional model, an expected reward for each of the one or more candidate itemsets, each expected reward simulating a sales metric of the plurality of product records based on the respective candidate itemset”.
Remarks 08/22/2025 p.23 ¶2-¶5 argues that the current claims are similar to DDR because even if they recite commercial factors, they analogously expand these factors to a technological extent in which the solution is claimed, namely by “executing a reinforcement learning algorithm to simulate”, “applying the current action to the simulated state of the environment” and “correcting the simulated state of the environment based on the sensor data comprising the measured reward”.
- Examiner fully considered the Step 2A prong 2 arguments but respectfully disagrees finding them unpersuasive, because here the level of automation or computerization, emphasized by Remarks 08/22/2025 mid-p.21 to p.22 ¶3, is a mere attempt at applying existing or abstract processes, as tested per MPEP 2106.05(f), and/or narrow them to a field of use or technological environment, as tested per MPEP 2106.05(h). None of these integrate the abstract idea into a practical application. For example, MPEP 2106.05(f)(2) ¶12 finds that use of a computer or other machinery in its ordinary capacity for economic or other tasks such as to store data does not integrate a judicial exception into a practical application. It then follows that here, “storing the sensor data in the short-term memory” and “storing the sensor data in the long-term memory” would represent such an example of using a computer or other machinery for economic or other tasks to store data, and thus would similarly not integrate the abstract exception into a practical application.
Similarly, the same MPEP 2106.05(f)(2) ¶13 states that claiming any improved speed or efficiency inherent with applying the abstract idea on a computer does not integrate a judicial exception into a practical application or provide an inventive concept. It then follows that here, far from a technological improvement asserted by Applicant at Remarks 08/22/2025 p.22 ¶4-p23 ¶1, any alleged efficiency inherent with applying the abstract idea with “providing, in a memory, an intelligent agent, the intelligent agent comprising: a retail promotional model; a simulation component, a memory component comprising a long-term memory, and a short-term memory”, and any alleged efficiency inherent with applying the abstract idea with “executing a reinforcement learning algorithm to simulate, at the simulation component, based on the short-term memory of the memory component, the long-term memory of the memory component, a simulated state of an environment, and the retail promotional model, an expected reward for each of the one or more candidate itemsets, each expected reward simulating a sales metric of the plurality of product records based on the respective candidate itemset” would analogously not integrate the above abstract exception into a practical application.
These findings are corroborated by MPEP 2106.05(f)(2) (iii)4 which states that a process for monitoring audit log data executed on a computer is merely an example of invoking computers or machinery as a tool to perform an existing process, which merely applies the abstract idea and thus does not integrate said abstract idea into a practical application. It then follows that here, the argued recitation of “wherein the sensor data is representative of a measured state of the environment”, and read in light of Original Specification ¶ [0014] as a retailer related state, would represent such an example of monitoring audit log data executed on a computer, invoking computers or machinery as a tool and thus merely applying the abstract idea without not integrating it into a practical application.
These findings are also corroborated by MPEP 2106.05(f)(2)(i)5 which similarly finds that applying a mathematical algorithm on a computer for an underlining a business method, is another an example of invoking computers or machinery as tools, which merely apply the abstract idea and thus does not integrate it into a practical application. It then follows that here, far from any patent eligible rules, as alleged by Applicant at Remarks 08/22/2025 p.22 ¶4-p.23 ¶1, the argued “executing a reinforcement learning algorithm to simulate”, “an expected reward for each of the one or more candidate itemsets” “correcting the simulated state of the environment based on the sensor data comprising the measured reward” would represent an example of applying a business related mathematical algorithm [MPEP 2106.05(f)(2) (i)], as an invocation of computers or machinery as a tool, which merely apply the abstract idea, and thus, does not integrate it into a practical application.
Additionally and/or alternatively, when tested per MPEP 2106.05(h), it can also be argued that the level of automation or computerization as argued by Applicant at Remarks 08/22/2025 mid-p.21 to p.22 ¶3, represents a mere technological environment or field of use, upon which the abstract idea is being performed, such as narrowing the combination of collecting information, analyzing it, and displaying certain results of the collection and analysis to a computerized technological environment. According to MPEP 2106.05(h) and 2106.05(h)(vi)6 such narrowing to a computerized etchnoglical environment or field of use also does not integrate the abstract exception into a practical application.
As per the Applicant’s allegation at Remarks 08/22/2025 p.23 ¶2-¶5 that by “executing a reinforcement learning algorithm to simulate”, “applying the current action to the simulated state of the environment” and “correcting the simulated state of the environment based on the sensor data comprising the measured reward”, the claims are similar to DDR, the Examiner submits that the current legal findings of the present claims are irreconcilably different than what was found eligible in, “DDR Holdings” because, as previously identified above, the claims’ character as a whole remains directed to “simulating promotional performance”, including “providing for an expected reward for each of the one or more candidate itemsets”, “simulating a sales metric of the plurality of product records based on the respective candidate itemset. At no point do the amended claims provide anything remotely analogous to the systems and methods of generating a composite webpage that combines certain visual elements of a host website with the content of a third-party merchant, as in DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 113 USPQ2d 1097 (Fed. Cir. 2014), as cited by MPEP 2106.05(d).
Digging deeper into DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d at 1248, 113 USPQ2d at 1099, the Examiner finds the Court ruled that the eligible claim in DDR had additional elements that amounted to significantly more than the abstract idea, because they modified conventional Internet hyperlink protocol to dynamically produce a dual-source hybrid webpage, which differed from the conventional operation of Internet hyperlink protocol that transported the user away from the host’s webpage to the third party’s webpage when the hyperlink was activated.
Here, there is nothing similar to DDR’s eligible technological arrangement.
In conclusion the Examiner submits that the claims’ character as a whole still recites or at the minimum describes or sets forth the abstract idea (Step 2A prong one), with no additional computer-based elements capable to, either alone or in combination integrate the abstract idea into a practical application (step 2A prong two), and for the same reasons also, incapable to provide significantly more (Step 2B) than what was already found as the abstract idea itself. Thus, the claims are patent ineligible.
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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 1-16 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea, here abstract idea) without significantly more. The claim(s) recite(s) describe, set forth the abstract Certain Methods of Organizing Human Activities including fundamental economic practices and/or commercial interactions [MPEP 2106.04(a)(2) II], including but not limited to offer-based optimization7 set forth here by recitation of “simulating promotional performance” as summarized by the preamble of independent Claims 1,9 and detailed throughout the body of the Claims 1-16. Specifically, the Examiner follows the USPTO’s latest 2024 Guidance Update on Patent Subject Matter Eligibility, Including on Artificial Intelligence (2024 AI SME update). (Effective July 17, 2024) and the corresponding sections of the MPEP. For example, MPEP 2106.04(a)(2) II B iii. cites OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1362-63, 115 USPQ2d 1090, 1092 (Fed. Cir. 2015) to state that offer-based optimization, pertains to marketing and thus falls within the abstract commercial interactions. Further, MPEP 2106.04(a)(2) II A again cites OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1364, 115 U.S.P.Q.2d 1090, 1092 (Fed Cir. 2015) to analogously state that a new method of price optimization was found to be an abstract, fundamental economic concept.
Examiner, tests the claims against to the fundamental economic practices and/or commercial interactions of MPEP 2106.04(a)(2) II A and B supra, and finds that here, the commercial interactions are similarly described or set forth by recitation of: “determining” “one or more candidate itemsets, each of the one or more candidate itemsets identifying two or more products in a plurality of product records”, “selecting” “one or more selected itemsets from the one or more candidate itemsets, each of the one or more selected itemsets identifying two or more products in the plurality of product records” (independent Claims 1,9), “the plurality of product records further comprises a product category hierarchy” (dependent Claims 3,11), “a first product belongs to the first level of the product category hierarchy and a first candidate itemset in the one or more candidate itemsets comprises the first product” (dependent Claims 3,11), “a second product belongs to the second level of the product category hierarchy and the first candidate itemset in the one or more candidate itemsets comprises the second product” (dependent Claims 4,12), “receiving, from a retailer system, retail data for a current time period” (dependent Claims 7,14) etc. Further the offer-based optimization is set forth here as simulation of a retail “environment”, and associated “retail promotional model” and “an expected reward” [i.e. offer result] “for each of the one or more candidate itemsets”, “generating a current” [offer based] “action corresponding to the one or more selected itemsets from the one or more candidate itemsets and each corresponding expected reward”; “applying the current action to the simulated state of the environment” for a further optimization by “correcting the simulated state” associated with the “retail promotional model”, “measured reward” and “expected reward simulating a sales metric of the plurality of product records based on the respective candidate itemset” (independent Claims 1,9), “the simulating the expected reward is for a first level of the product category hierarchy” (dependent Claims 3,11), “simulating a second level of the product category hierarchy, the second level at a lower level than the first level in the product category hierarchy” (dependent Claims 4,12), “simulating a first product set in the one or more selected itemsets, the first product set having a first product in the first level of the product category hierarchy and a second product in the second level of the product category hierarchy” (dependent Claims 5,13). Such further optimization is also set forth by “determining one or more solution increments for the one or more time periods”; “and” “simulating an addition or removal of product records to the one or more selected itemsets” (dependent Claims 6,14) “updating the retail promotional model based on the retail data for the current time period and the one or more selected itemsets” (dependent Claims 7,14). Yet, MPEP 2106.04(a)(2) II A ¶2 is clear that building blocks of the modern economy remain ineligible, with the term “fundamental” not used in the sense of necessarily being "old" or "well-known" citing again to OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1364, 115 U.S.P.Q.2d 1090, 1092 (Fed Cir. 2015) which ruled that a new method of price optimization was still a fundamental economic concept. In fact, MPEP 2106.04 I stresses that even a “groundbreaking, innovative, or even brilliant discovery does not by itself satisfy the 101 inquiry” citing Myriad,569 U.S at 591, 106 USPQ2d at 1979. The “Myriad” rationale was corroborated by “SAP Am Inc v InvestPic” which is also cited by MPEP 2106.04(a)(2) I.C(i). Digging deeper into the Court’s rationale in SAP supra, the Examiner finds that the Court ruled that, “even if one assumes that the techniques claimed are groundbreaking, innovative, or even brilliant those features are not enough for eligibility because their innovation is innovation in ineligible subject matter. An advance of that nature is ineligible for patenting”. That is, “no matter how much of an advance in the field the claims” [would] “recite the advance” [would still] “lie entirely in the realm of abstract ideas” with no plausibly alleged innovation in non-abstract application realm. Here, as in SAP Am, Inc v. InvestPic, LLC, 890 F.3d 1016, 126 USPQ.2d 1638 (Fed. Cir. 2018), no matter how much of an advance in “simulating promotional performance” the claims would recite said advance would still lie entirely within the realm of Certain Methods of Organizing Human Activities with no plausibly of the alleged innovation entering the non-abstract realm. The “SAP” findings were corroborated by Versata Dev Grp Inc v SAP Am, Inc 115 USPQ2d 1681 Fed Cir 2015 again undelaying the difference between improvement to entrepreneurial goal objective and actual improvement to actual technology. MPEP 2106.04.
Following such legal precedents, as underlined by MPEP 2106.04 above, the Examiner reasons that here, the claims would at most improve an entrepreneurial and abstract concept through optimization or simulation for “promotional performance”. Yet, as identified above and confirmed by MPEP 2106.04 (d)(1) a claim is not patent eligible merely because it applies an abstract idea in a narrow way; that is, an “improvement in the judicial exception itself” “is not an improvement in technology”. Specifically, MPEP 2106.04 I ¶5 states that the Supreme Court’s decisions made it clear that judicial exceptions need not be old or long-prevalent, and that even newly discovered or novel judicial exceptions are still exceptions. For example, both Myriad and Flook were novel, but nonetheless considered by the Supreme Court to be judicial exceptions because they were basic tools of scientific and technological work’ that lie beyond the domain of patent protection. Here when considered in light of the above legal findings, the simulation of a retail “environment”, and associated “retail promotional model” and “an expected reward” [i.e. offer result] “for each of the one or more candidate itemsets”, “generating a current” [offer based] “action corresponding to the one or more selected itemsets from the one or more candidate itemsets and each corresponding expected reward”; “applying the current action to the simulated state of the environment” for a optimization by “correcting the simulated state” associated with the “retail promotional model”, “measured reward” and “expected reward simulating a sales metric of the plurality of product records based on the respective candidate itemset” (independent Claims 1,9) etc., would at most correspond to such narrowing or improvement to the abstract exception, namely the building blocks of modern economy8 or the fundamental economic practices or principles of MPEP 2106.04(a)(2) II A and/or the customer behavior-based marketing activities / business relations of MPEP 2106.04(a)(2) II B. Yet, these building blocks of modern economy remain patent ineligible as iterated by MPEP 2106.04(a)(2) II A ¶2.
As per the level of computerization in the claims, the Examiner points to MPEP 2106.04(a)(2) II ¶6, 4th sentence, which states that certain activity between a person and a computer may still fall within the "certain methods of organizing human activity" grouping. In a similar vein9, the computer-aided, evaluation and judgement of mental processes (MPEP 2106.04(a)(2) III) do not preclude the claims from reciting, describing or setting forth the abstract exception, because MPEP 2106.04(a)(2) III. C. clearly states that: #1. Performing a mental process on a generic computer, # 2. Performing a mental process in a computer environment, or #3. Using a computer as a tool to perform a mental process, do not preclude the claim from reciting a mental process. For example, MPEP 2106.04(a)(2) III C #1 cites Versata, 793 F.3d at 1312-13, 1331, 115 USPQ2d at 1685, 1699, to state that using general purpose computer hardware for determining a price, using organizational and product group hierarchies still recites the attract exception. Such price determination would analogously correspond here to the measured reward simulation, while the use of organizational and product group hierarchies would correspond here to “the one or more selected itemsets identifying two or more products in the plurality of product records” (independent Claims 1,9), and simulated “first” and “second” “category” “hierarchy” (dependent Claims 3-5, 11-13). Following, the MPEP 2106.04(a)(2) III. C. test, Examiner finds that here, it could be argued that the “simulating” of “promotional performance” could be executed by computer components to aid the human evaluation and judgment of a retail environment with respect to a “measured reward”, “an expected reward for each of the one or more candidate itemsets” and “a current action corresponding to the one or more selected itemsets from the one or more candidate itemsets and each corresponding expected reward”. Indeed, MPEP 2106.04(a)(2) III is clear that the abstract combination of collecting information, analyzing it, and displaying certain results of the collection and analysis remains directed to the abstract exception10. It then follows that here “receiving” “retail data for current time period” (dependent Claims 7, 15), “receiving” “measured reward” “representative of a measured state of the environment” and “correcting the simulated state of the environment based on the sensor data comprising the measured reward” (independent Claims 1,9) followed by “simulating an addition or removal of product records to the one or more selected itemsets” (dependent Claims 6,14), “updating the retail promotional model based on the retail data for the current time period and the one or more selected itemsets” (dependent Claims 7,15), as an example of certain results of the collection and analysis, would also fall within the realm abstract exception. Thus here, there is preponderance of legal evidence demonstrating that the claims recite, describe or set forth abstract Certain Methods of Organizing Human Activities practically implementable through equally abstract Mental Processes. Step 2A prong one.
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This judicial exception is not integrated into a practical application because per Step 2A prong two, the individual or combination of the additional, computer-based elements is/are found to merely apply the already recited abstract idea and/or narrow it to a field of use or technological environment. Here, the additional elements are: “server” (independent Claim 9), “memory component comprising” “long-term” “and” “short-term memory” (independent Claims 1,9, dependent Claims 2,10), “processor in communication with the memory” (independent Claim 1) “network device” (independent Claim 9), “intelligent agent module” (independent Claims 1,9), “simulation component” (independent Claims 1,9), possibly the “reinforcement learning algorithm” (independent Claims 1,9), narrowed as “genetic algorithm” (dependent Claims 8,16), “sensor data” (independent Claims 1,9, dependent Claims 2,10), “retailer system” (dependent Claims 7,15).
More specifically, here, when tested per MPEP 2106.05(f)(2) such additional, computer-based elements, merely apply the abstract idea, such as the aforementioned business method [here identified above] and mathematical algorithm [here “simulation component”, “reinforcement learning algorithm” etc.] to use a computer11 [here “processor”, “intelligent agent” etc.] or other machinery in its ordinary capacity for economic tasks [here identified above] or other tasks to store, receive and transmit data12. Such storing is exemplified here by the capabilities of the “memory component” comprising “short-term” and “long-term” “memory” to “store/storing the sensor data” (independent Claims 1,9). The capabilities of the additional computer-based element to receive of data is exemplified here by recitations of: “receiving, at the intelligent agent, sensor data comprising a measured reward, wherein the sensor data is representative of a measured state of the environment” (Claims 1,9), “receiving, from a retailer system / using the network device/, retail data for a current time period” (dependent Claims 7,15). The capabilities of the additional computer-based element to transmit data are reflected here by: “updating the retail promotional model based on the retail data for the current time period and the one or more selected itemsets” (dependent Claims 7,15).
Further, MPEP 2106.05(f)(2) iii cites FairWarning IP, LLC v. Iatric Sys., 839 F.3d 1089, 1095, 120 USPQ2d 1293, 1296 (Fed. Cir. 2016), to state that a process for monitoring audit log data that is executed on a general-purpose computer, is also an example of invoking computers or machinery as a tool to perform an existing process, which does not integrate the abstract idea into a practical application. It then follows that here, recitations of “sensory data” such as “receiving, at the intelligent agent, sensor data comprising a measured reward, wherein the sensor data is representative of a measured state of the environment” at independent Claims 1,9 read in light of Original Specification ¶ [0067] would correspond to such an example of monitoring audit log data, which would not integrate the abstract idea into a practical application.
Further still, MPEP 2106.05(f)(2) v. cites Intellectual Ventures I LLC v. Capital One Bank (USA), 792 F.3d 1363,1370-71,115 USPQ2d 1636,1642 (Fed. Cir. 2015) to state that requiring use of software to tailor information and provide it to user on a generic computer, is another example of applying the abstract idea, which does not integrate it into a practical application. It then follows that here requiring use of computer components for “correcting” or tailoring “simulated state of the environment based on the sensor data comprising the measured reward” (independent Claims 1,9), “updating the retail promotional model based on the retail data for the current time period and the one or more selected itemsets” (dependent Claims 7, 15) would similarly not integrate the abstract exception into a practical application.
In a similar vein, MPEP 2106.05(h) cites Electric Power Group, LLC v. Alstom S.A., 830 F.3d 1350, 1354,119 USPQ2d 1739, 1742 (Fed. Cir. 2016) to state that limiting the combination of collecting information, analyzing it, and displaying certain results of collection and analysis [here identified and mapped above] to data related to a technological environment, is an example of limiting the identified abstract idea to a field of use or technological environment which again does not integrate it into a practical application. Step 2A prong two. Analogously, MPEP 2106.05(h) cites FairWarning v. Iatric Sys., 839 F.3d 1089, 1094-95, 120 USPQ2d 1293, 1295 (Fed. Cir. 2016) to state that specifying that the abstract idea of monitoring audit log data relates to transactions or activities executed in a computer environment is a requirement that merely limits the claims to the computer field, without integrating the abstract idea into a practical application. It then follows that here, narrowing the above, abstract economic and/or commercial transactions to the computerized implementation above would at most narrow the abstract idea to a field of use or technological environment without integrating it into a practical application. Similarly, MPEP 2106.05(h) x cites buySAFE Inc v Google, Inc 765 F.3d 1350,1354, 112 USPQ2d 1093,1095-96 (Fed Cir 2014) to state that performance of a transaction (a) using a computer that receives and sends information over a network, or (b) be limited to guaranteeing online transactions, represent limitations that limit the use of the abstract idea to computer environments, which would not integrate such abstract idea into a practical application. It then follows that here, the computerized capabilities to simulate promotional performance, as identified above; would represent analogous limitations that limit the use of the abstract idea to computer environments, which would similarly not integrate the current abstract idea into a practical application.
Thus here, there is preponderance of legal evidence for the additional, computer-based elements, to merely apply the abstract idea [MPEP 2106.05(f)] and/or narrow it to a technological environment or filed of use [MPEP 2106.05(h)], and thus not integrating it into a practical application. Step 2A prong two.
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The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because per above, the additional computer-based elements merely apply the already recited abstract idea and link use of abstract idea to a field of use or technological environment. see MPEP 2106.05(f) and/or (h). Specifically Examiner follows the guidelines of MPEP 2106.05(d) II 2nd bullet point and caries over the conclusions reached on the MPEP 2106.05(f), and/or (h) tests to Step 2B, and submits that for the same reasons articulated above, said computer-based additional elements also do not provide significantly when considering MPEP 2106.05(f) and/or (h) as sufficient option(s) for evidence, without the need to rely on Berkheimer evidence for the well-understood, routine and conventional test. Yet, assuming arguendo, that further evidence would be required to demonstrate conventionality of the additional, computer-based elements, the Examiner would further rely on MPEP 2106.05(d) guidelines to demonstrate that said additional elements are also well-understood, routine, conventional. In such case, the Examiner would rely as evidence on Applicant’s own Specification:
- Original Specification ¶ [00055] 1st sentence states: “Reference is made to Fig. 1, which shows an autonomous enterprise planning system according to an embodiment of the present invention and indicated generally by reference 100”.
- Original Specification ¶ [00055] 6th sentence reciting at high level of generality: “As will be described in more detail below, the computing and processing facility 110 comprises computers and/or processors implemented in hardware and/or software configured to process the retail data and generate retail merchandise operational plans, sales/margins results measurements and forecasts, and a retailer merchandise plan tailored for one or more of the retailers”.
- Original Specification ¶ [0056] last sentence: “The particular implementation details will be within the understanding of those skilled in the art of computers and computer programming”.
- Original Specification ¶ [00085] last sentence: “The particular implementation details for the aprioriT/D algorithm will be readily within the understanding of those skilled in the art”.
- Original Specification ¶ [000120] states: “It will be further appreciated that in a practical system, the product selection solutions (or control inputs) will rarely be 100 per cent executed without …human intuition”.
- Original Specification ¶ [00124] 1st sentence, reciting at a high level: “Reference is next made to Fig. 6, which shows in diagrammatic form high level data platform architecture for the retail planning system 100 of Fig. 1, according to an exemplary implementation and indicated generally by reference 600”.
- Original Specification ¶ [00146] last sentence states: “The particular implementation details of the modules and f