DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 5/4/26 has been entered.
Notice to Applicant
The following is a Non-Final Office action. In response to Examiner’s Final Rejection of 3/4/26, Applicant, on 5/4/26, amended claims. Claims 1-20 are pending in this application and have been rejected below.
Response to Amendment
Applicant’s amendments are acknowledged.
Reasons for Overcoming Prior Art under 103
The claim 1 overcomes the Prior Art and the 103 Rejection.
Claim 1 overcomes the prior art based on: 1) determine a rating skewness of the plurality of ratings by subtracting a second central tendency measure of the plurality of ratings from a first central tendency measure of the defined rating scale to generate a result, and dividing the result by a standard deviation of the plurality of ratings; 2) initiate the following automated actions: notifying the individual instructor that instructor training is required; scheduling the individual instructor for the required instructor training;
notifying the individual instructor that the required instructor training was scheduled; and 3) following verification by the apparatus that the individual instructor has completed a required duration of the required instructor training determined based on the rating skewness, automatically update instructor training status information stored in the memory to indicate completion of the required instructor training.
Independent claims 17 and 20 overcome the art for similar reasons. All other claims depend from these claims.
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 1-20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception (i.e. an abstract idea) without reciting significantly more.
Step One - First, pursuant to step 1 in MPEP 2106.03, the claim 1 is directed to an apparatus which is a statutory category.
Step 2A, Prong One - MPEP 2106.04 - The claim 1 recites–
“An apparatus for assessing instructor ratings, comprising:
…
receive a raw instructor rating data set, the raw instructor rating data set comprising a plurality of ratings from an individual instructor, each one of the plurality of rating corresponding to a numerical value on a defined rating scale;
determine a rating skewness of the plurality of ratings by subtracting a second central tendency measure of the plurality of ratings from a first central tendency measure of the defined rating scale to generate a result, and dividing the result by a standard deviation of the plurality of ratings;
compare the skewness of the plurality of ratings to at least one comparative rating skewness to generate a skewness comparison report;
determine the individual instructor requires instructor training based on the skewness comparison report;
identify a required instructor training to provide to the individual instructor; and
initiate the following … actions:
notifying the individual instructor that instructor training is required;
scheduling the individual instructor for the required instructor training;
notifying the individual instructor that the required instructor training was scheduled; and
transmitting at least one of the rating skewness, the skewness comparison report, and the required instructor training information to one or more end users; and
following verification … that the individual instructor has completed a required duration of the required instructor training determined based on the rating skewness, … update instructor training status information stored … to indicate completion of the required instructor training.”
As drafted, this is, under its broadest reasonable interpretation, within the Abstract idea grouping of “certain methods of organizing human activity” (e.g. managing interactions between people (social activities, teaching) and “mathematical relationships” as here we have ratings from instructors/teachers, and performing a series of mathematical operations – ratings corresponding to a numerical scale, determining a rating skewness by subtracted one tendency measure (average/mean/median/mode) from another, then dividing by standard deviation, comparing skewness [presumably from one instructor to a threshold/level of “comparative rating skewness”, as the specification indicates it can be a “baseline… reference point… of optimal rating skewness”], determine instructor below the baseline level, “require” instructor training, notify the instructor of required training, schedule the instructor for the training, notify the instructor that the training was scheduled, and make the mathematical rating skewness, the report, and the training available to the users; verification that instructor has completed a required duration of training, update their training status information to indicate completion. Accordingly, claim 1 is directed to an abstract idea because it is doing a series of mathematical calculations and analysis steps to determine a rating taking into account skewness, and comparing instructors ratings to see which instructors/people needs more training, scheduling the instructors, and determining when they have completed the training and then updating their training status.
Step 2A, Prong Two - MPEP 2106.04 - This judicial exception is not integrated into a practical application. In particular, the claim 1 recites additional elements that are:
“An apparatus for assessing instructor ratings, comprising:
a processor; and
a memory that stores code executable by the processor to:
…
Initiate automated actions:
Notifying instructor that instructor training is required
Scheduling required training …
Notifying instructor required training was scheduled; and
transmitting at least one of the rating skewness, the skewness comparison report, and the required instructor training information to one or more end users;
following verification by the apparatus that the individual instructor has completed a required duration of the required instructor training determined based on the rating skewness, automatically update instructor training status information stored in the memory to indicate completion of the required instructor training”
(MPEP 2106.05f applies –“apply it [the abstract idea – certain methods of organizing human activity and math relationships] on a computer”; merely uses a computer, memory as a tool to perform an abstract idea; even with the second-to-last step of “automate” either scheduling, notifying, or transmitting information to users, this is still viewed under MPEP 2106.05f, where the computer is automating the abstract idea – here the abstract portion is “notifying” a user; the final step is just verifying “by a computer” that a person has completed the required training; for combination of “stored in memory” at end and “automated” sending notifications to user and computer is also viewed as MPEP 2106.05h (Field of use)).
Accordingly, the additional elements do not integrate the abstract idea into a practical application because it does not impose any meaningful limits on practicing the abstract idea. The claim also fails to recite any improvements to another technology or technical field, improvements to the functioning of the computer itself, use of a particular machine, effecting a transformation or reduction of a particular article to a different state or thing, and/or an additional element applies or uses the judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment, such that the claim as a whole is more than a drafting effort designed to monopolize the exception. See 84 Fed. Reg. 55. The claim is directed to an abstract idea.
Step 2B in MPEP 2106.05 - The claim does not include additional elements that are sufficient to amount to significantly more than the judicial exception. As discussed above with respect to integration of the abstract idea into a practical application, the additional element of a computing system, is treated as MPEP 2106.05(f) (Mere Instructions to Apply an Exception – “Thus, for example, claims that amount to nothing more than an instruction to apply the abstract idea using a generic computer do not render an abstract idea eligible.” Alice Corp., 134 S. Ct. at 235)). Mere instructions to apply an exception using a generic computer component cannot provide an inventive concept.
The claim fails to recite any improvements to another technology or technical field, improvements to the functioning of the computer itself, use of a particular machine, effecting a transformation or reduction of a particular article to a different state or thing, adding unconventional steps that confine the claim to a particular useful application, and/or meaningful limitations beyond generally linking the use of an abstract idea to a particular environment. See 84 Fed. Reg. 55. The claim is not patent eligible. Viewed individually or as a whole, these additional claim element(s) do not provide meaningful limitation(s) to transform the abstract idea into a patent eligible application of the abstract idea such that the claim(s) amounts to significantly more than the abstract idea itself.
In addition, at step 2B, “transmitting” reports is also considered a conventional computer function (See MPEP 2106.05d(II) - “Receiving or transmitting data over a network, e.g., using the Internet to gather data, Symantec, 838 F.3d at 1321”); and the final step of “training status stored in memory” is also considered a conventional computer function (See MPEP 2106.05d(II) - Storing and retrieving information in memory, Versata Dev. Group, Inc. v. SAP Am., Inc., 793 F.3d 1306, 1334.)
Independent claim 17 is a statutory category at step one (method). The remaining limitations are similar to claim 1, and are rejected for the same reasons at step 2a, prong one; step 2a, prong two, and step 2B. Examiner further notes that method claim 17 has contingent limitations; the fourth limitation is “if” instructor requires training; thus, many of the limitations are not required for the method claim.
Independent claim 20 is a statutory category at step one (article of manufacture).
The beginning of the claim 20 recites: “A program product for assessing instructor ratings comprising a non-transitory computer readable storage medium storing code, the code being configured to be executable by a processor to perform operations comprising”. These are additional elements and are treated at step 2a, prong two and step 2B similar to the computer, memory and code in claim 1. The remaining limitations are similar to claim 1 and are rejected for the same reasons at step 2a, prong one; step 2a, prong two, and step 2B.
Claims 2-9, 18-19 narrow the abstract idea by having further mathematical relationships including specifying mean/median/mode, using a reference value, a period for evaluating an instructor, looking at magnitudes when comparing, and what kind of scale is used.
Claims 10 narrows the abstract idea by stating the title of the instructor and what they teach a person (naming the data), and indicating the ratings relate to “flight” instructions.
Claim 11 narrows the abstract idea by stating the training “made accessible” in claim 1 is “aviation-specific teaching methodologies and flight simulation techniques.” This is viewed as explaining to a person how to use the flight simulator and further narrows the abstract idea of - certain methods of organizing human activity” (e.g. managing interactions between people (social activities, teaching).
Claim 12 has additional elements of “memory further stores code executable by the processor to receive additional data sources; and the additional data sources are made accessible to one or more end user.” These are viewed as “apply it [abstract idea] on a computer” (MPEP 2106.05f) at step 2a, prong two and step 2B. At step 2B, this is also a conventional computer function – See MPEP 2106.05d(II) - iv. Storing and retrieving information in memory, Versata Dev. Group, Inc. v. SAP Am., Inc., 793 F.3d 1306, 1334.
Claim 13 narrows the abstract idea by plotting the mathematical ratings into a graph or visual representation.
Claim 14 narrows the abstract idea – but is explicitly for at least two instructors, similar to claim 1.
Claim 15-16 narrows the abstract idea by stating there are a plurality of evaluation periods, and then further tracking changes between periods, and adjusting recommended training for instructors based on changes, and also identifying trends and then recommendations based on the trends.
Therefore, the claim(s) are rejected under 35 U.S.C. 101 as being directed to non-statutory subject matter.
For more information on 101 rejections, see MPEP 2106.
Response to Arguments
Applicant's arguments filed 5/4/26 have been fully considered but they are not persuasive and/or are moot in view of the new rejections.
With regards to 101, Applicant argues that claims are directed to a “computer-implemented apparatus and corresponding methods” that use “rating skewness as an input to control automated system behavior, including notifying the individual instructor that instructor training is required, scheduling instructor for required training, notifying instructor that training was scheduled, transmitting either rating skewness, skewness comparison report, or required instructor training information to users, verification of training of training completion, and updating of instructor training status information stored in memory.” Remarks, page 10. In response, Examiner respectfully disagrees. First, the arguments that this becomes “control” of automated system behavior making the claim eligible are not persuasive. There is no “control” in the claims that qualifies like Diamond v. Diehr or other examples in MPEP 2106. Rather, the computer here has “automated actions” of 1) notifying instructor training is required, 2) scheduling instructor for required training, 3) notifying instructor required training scheduled, and 4) transmitting either rating skewness, skewness comparison report, or instructor training information to one or more end users. The additional element added here involves a computer to help further conduct the abstract idea – a certain method of organizing human activity to help with teaching people, and ensuring instructors get required training. See MPEP 2106.05f “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 (e.g., a fundamental economic practice or mathematical equation) does not integrate a judicial exception into a practical application or provide significantly more. See Affinity Labs v. DirecTV, 838 F.3d 1253.” Examiner further notes that method claim 17 has contingent limitations; the fourth limitation is “if” instructor requires training; thus, many of the “automated” action limitations are not even required for the method claim. This is similar to examples in MPEP that do not show an improvement in computer functionality – MPEP 2106.05(a)(I) iii. Mere automation of manual processes, such as using a generic computer to process an application for financing a purchase, Credit Acceptance Corp. v. Westlake Services, 859 F.3d 1044, 1055, 123 USPQ2d 1100, 1108-09 (Fed. Cir. 2017).
Applicant then argues that claims do not merely calculate skewness and present the result, but is then used to determine instructor needs training, determine duration of training, determine completion of training, update profile as now amended. Remarks, page 10. In response, Examiner respectfully disagrees. The subsequent “operations” here are ordinary computer operations of notify/transmit/store – that use the abstract idea of helping people get the education they are determined to need. Using the “computer” to make determinations of education duration, determine completion of training, update profile, notify of required training, and scheduling, is not viewed as a practical application since it’s the epitome of “apply it [abstract idea] on a computer”. See MPEP 2106.05f: “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 (e.g., a fundamental economic practice or mathematical equation) does not integrate a judicial exception into a practical application or provide significantly more. See Affinity Labs v. DirecTV, 838 F.3d 1253.” Applicant further argues this a “control” of system behavior, as if this is a “control” case that is practical application. This is not persuasive here. This is not similar to MPEP 2106.05e “Other Meaningful Limitations” where it discusses how “opening and closing a mold” led to eligibility. “In Diehr, the claim was directed to the use of the Arrhenius equation (an abstract idea or law of nature) in an automated process for operating a rubber-molding press. 450 U.S. at 177-78, 209 USPQ at 4. The Court evaluated additional elements such as the steps of installing rubber in a press, closing the mold, constantly measuring the temperature in the mold, and automatically opening the press at the proper time, and found them to be meaningful because they sufficiently limited the use of the mathematical equation to the practical application of molding rubber products. 450 U.S. at 184.” The arguments are also not persuasive based on MPEP 2106.05a (Improvements to Computer Functionality” as this is more similar to examples “not” sufficient to show improvement in computer-functionality. ii. Accelerating a process of analyzing audit log data when the increased speed comes solely from the capabilities of a general-purpose computer, FairWarning IP, LLC v. Iatric Sys., 839 F.3d 1089; vii. Providing historical usage information to users while they are inputting data, in order to improve the quality and organization of information added to a database, because "an improvement to the information stored by a database is not equivalent to an improvement in the database’s functionality," BSG Tech LLC v. Buyseasons, Inc., 899 F.3d 1281, 1287-88, 127 USPQ2d 1688, 1693-94 (Fed. Cir. 2018).
With regards to step 2a, prong two, Applicant argues the claims have a “sequence of automated operations” for “controlling” system behavior and update training status information “in memory.” Remarks, page 11. In response, Examiner respectfully disagrees. Determining a person has learning/education needs is not a technical improvement; mere notification to a user to do extra educational learning to help them be a better grader/teacher and scheduling is not a technical improvement; merely giving a “notification” of a scheduled instructor class is not an additional element beyond “using a computer to display the information;” merely giving a person a report of whether the instructor grading is skewed is not a technical improvement. Computing technology is not improved the way the claim is constructed. See e.g. MPEP 2106.04(a)(2)(II)(C) “An example of a claim reciting managing personal behavior is Intellectual Ventures I LLC v. Capital One Bank (USA), 792 F.3d 1363, 115 USPQ2d 1636 (Fed. Cir. 2015). The patentee in this case claimed methods comprising storing user-selected pre-set limits on spending in a database, and when one of the limits is reached, communicating a notification to the user via a device. 792 F.3d. at 1367, 115 USPQ2d at 1639-40. The Federal Circuit determined that the claims were directed to the abstract idea of "tracking financial transactions to determine whether they exceed a pre-set spending limit (i.e., budgeting)", which "is not meaningfully different from the ideas found to be abstract in other cases before the Supreme Court and our court involving methods of organizing human activity." 792 F.3d. at 1367-68, 115 USPQ2d at 1640.”
Applicant then argues that “notification or scheduling” are characterized as “insignificant post-solution activity.” Remarks, page 12. In response, Examiner respectfully disagrees. These aspects are characterized as being part of the abstract idea; the only additional element is “by a computer”.
With regards to Step 2B, Applicant then argues that the claims are not conventional, evidence is required, and the claims are “significantly more” than any alleged judicial exception. Remarks, page 12. In response, Examiner respectfully disagrees. With regards to step 2B, only those additional elements (analyzed under 2B) that are deemed “conventional” need to comply with Berkheimer. When elements are just part of “apply it” [abstract idea] on a computer, under MPEP 2106.05(f); or “field of use” under MPEP 2106.05h, no evidence is needed. In addition, citations were already provided to MPEP 2106.05(d)(II) for how a conventional computer function is “Receiving or transmitting data over a network, e.g., using the Internet to gather data,” and “Storing and retrieving information in memory”.
With regards to 103, the arguments are moot as the 103 rejections are withdrawn in response to the amendments. Examiner notes
Conclusion
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/IVAN R GOLDBERG/Primary Examiner, Art Unit 3619
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