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 .
DETAILED ACTION
Status of Claims
Claim(s) 1-20 have been examined.
Claim Objections
Claim 17 is objected to because of the following informalities: the claim starts with the phrase “he system according to claim 16” and it should read “The system according to claim 16”. Appropriate correction is required.
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 claims recite a judicial exception which is not integrated into a practical application and the claims lack an inventive concept.
Step 1 is the first inquiry into eligibility analysis and asks whether the claims are directed to a statutory category. In this instance, the answer must be in the affirmative because they recite a method and system.
Step 2A prong 1 is the next step in the eligibility analyses and asks whether the claimed invention recites a judicial exception. In this instance, the claims recite the following limitations which comprise the abstract idea:
receiving data for generating an evaluation system for evaluating heel cushioning of a first article of footwear;
generating a customer data record comprising a current level of heel cushioning of the first article of footwear and the received customer-selected evaluation of the heel cushioning;
associating the generated customer data record with a customer identifier indicating a purchase history of a customer;
receiving a customer-selected evaluation of the heel cushioning of the first article of footwear;
transmitting, from the customer computing system to a manufacturer or third party, data including the customer-selected evaluation of the heel cushioning for the first article of footwear.
This is an abstract idea because it is a certain method of organizing human activity including commercial or legal interactions such as marketing and sales activities and/or behaviors.
Step 2A prong 2 is the next step in the eligibility analyses and looks at whether the abstract idea is integrated into a practical application. This requires an additional element or combination of additional elements in the claims to apply, rely on, or use the judicial exception in a manner that imposes a meaningful limit on the judicial exception, such that the claim is more than a drafting effort designed to monopolize the exception.
In this instance, the claims recite the additional elements such as:
a consumer computing system;
a manufacturer or third-party computing system;
However, these elements do not amount to an improvement in the functioning of a computer or any other technology or technical field, apply the judicial exception with, or by use of, a particular machine, or apply or use 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.
In addition, the recitations of the various computing systems are recited at a high level of generality and also do not amount to an improvement in the functioning of a computer or any other technology or technical field, apply the judicial exception with, or by use of, a particular machine, or apply or use 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.
The dependent claims also fail to recite elements which amount to an improvement in the functioning of a computer or any other technology or technical field, apply the judicial exception with, or by use of, a particular machine, or apply or use 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. For example, claims 2-8 are directed towards the abstract idea itself. In addition, even if they were not directed towards the abstract idea, they do not amount to an integration according to any one of the considerations above.
Step 2B is the next step in the eligibility analyses and evaluates whether the claims recite additional elements that amount to an inventive concept (i.e., “significantly more”) than the recited judicial exception. According to Office procedure, revised Step 2A overlaps with Step 2B, and thus, many of the considerations need not be re-evaluated in Step 2B because the answer will be the same.
In Step 2A, several additional elements were identified as additional limitations:
a consumer computing system;
a manufacturer or third-party computing system;
These additional limitations, including the limitations in the dependent claims, do not amount to an inventive concept because they are recited at a high level of generality and also do not amount to an improvement in the functioning of a computer or any other technology or technical field, apply the judicial exception with, or by use of, a particular machine, or apply or use 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.
In addition, they were already analyzed under Step 2A and did not amount to a practical application of the abstract idea.
Therefore, the claims lack one or more limitations which amount to an inventive concept in the claims.
For these reasons, the claims are rejected under 35 U.S.C. 101.
Claim Rejections - 35 USC § 103
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 (i.e., changing from AIA to pre-AIA ) 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.
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.
Claim(s) 1-2, 4-6, 8-14, 16-18, 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Wilkinson (US 2015/0242929) in view of Bright (US 2011/0099122).
Referring to Claim 1, Wilkinson teaches a method for customizing an article of footwear, comprising:
receiving data on a customer computing system for generating an evaluation system for evaluating heel cushioning of a first article of footwear (see Wilkinson ¶0072 and Fig. 9-10);
generating, by the customer computing system, a customer data record comprising a current level of heel cushioning of the first article of footwear and the received customer-selected evaluation of the heel cushioning (see Wilkinson ¶¶0072,75, the user interface in Figure 9 constitutes a “data record” and comprises both “the recommendation system’s default value for that particular aspect of the item” which include the cushioning on the shoe including the heel, and also the user’s feedback on that particular aspect of the item);
receiving a customer-selected evaluation of the heel cushioning of the first article of footwear on the customer computing system (see Wilkinson ¶0072, a user clicks the heel and adjusts the cushioning slider);
transmitting, from the customer computing system to a manufacturer or third party computing system, data including the customer-selected evaluation of the heel cushioning for the first article of footwear (see Wilkinson ¶0071).
While Wilkinson teaches customer profiles (see Wilkinson ¶0079) it does not explicitly teach “associating the generated customer data record with a customer identifier indicating a purchase history of a customer”. However, Bright teaches associating a generated customer data record with a customer identifier indicating a purchase history of a customer (see Bright ¶0040, associating customer data with a customer identifier which indicates their purchase history). It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to expand the feature of generating a customer data record as taught in Wilkinson with the concept of associating the generated customer data record with a customer identifier in Bright because the results would be predictable. Specifically, Wilkinson would continue to teach generating a customer data record except that now the customer data record would be associated with a customer identifier as taught by Bright. This is a predictable result of the combination.
Referring to Claim 2, the combination teaches the method according to claim 1, wherein the evaluation system provides an evaluation scale through which a customer enters information relating to the customer-selected evaluation of the heel cushioning for the first article of footwear (see Wilkinson ¶0072).
Referring to Claim 4, the combination teaches the method according to claim 1, wherein the evaluation system provides a recommended level of heel cushioning for the first article of footwear (see Wilkinson ¶0075, a default value by the recommendation system).
Referring to Claim 5, the combination teaches the method according to claim 4, wherein the evaluation system provides multiple evaluation scales through which a customer enters information relating to properties of the heel cushioning for the first article of footwear, and wherein the multiple evaluation scales include: (i) a first scale for providing resilience property information (see Wilkinson Fig. 9, cushioning), (ii) a second scale for providing rigidity property information (see Wilkinson Fig. 9, arch support), (iii) a third scale for providing shock absorption property information (see Wilkinson Fig. 9, cushioning), and (v) a fourth scale for providing comfort property information (see Wilkinson Fig. 9, comfort).
Referring to Claim 6, the combination teaches the method according to claim 1, wherein the customer-selected evaluation of the heel cushioning of the first article of footwear corresponds to a first iteration of a customization cycle, and wherein the method further comprises:
generating on the customer computing system an evaluation system for evaluating heel cushioning of an article of footwear (see Wilkinson ¶0072 and Fig. 9-10);
receiving a customer-selected evaluation of the heel cushioning of the article of footwear on the customer computing system (see Wilkinson ¶0072 and Fig. 9-10);
transmitting, from the customer computing system to a manufacturer or third party computing system, data including the customer-selected evaluation of the heel cushioning of the article of footwear (see Wilkinson ¶0071).
Wilkinson teaches a first iteration, but not a second iteration. However, Bright teaches a second iteration (see Bright ¶0027, a consumer purchases a product which was recommended to them based on their fit prediction; ¶0020, the fit prediction uses machine learning to improve over time based on the consumer’s purchase history and feedback the consumer provides on items they purchased; ¶0028, the consumer provides feedback on an item they purchased, which can be a product recommended to them based on a fit prediction generated using purchase history of the consumer, which is a subsequent iteration; ¶0029, the feedback is used to improve the fit prediction for the consumer, and the cycle repeats in order to improve the fit prediction over time). It would have been obvious to one of ordinary skill in the art before the effective filing date of invention to combine these references because multiple iterations would lead to fit prediction that would “improve over time” leading to a reduced rate of returns, saving the merchant money on paying for return shipping (see Bright ¶¶0002,3). In addition, it would have been obvious to one of ordinary skill in the art before the effective filing date of invention to combine these references because the results would be predictable. Specifically, the prior art of Wilkinson would continue to teaches these steps for a first iteration except that now it would perform multiple subsequent iterations according to the teachings of Bright. This is a predictable result of the combination.
Referring to Claim 8, the combination teaches the method according to claim 6, further comprising:
generating on the customer computing system an evaluation system for evaluating heel cushioning of an article of footwear (see Wilkinson ¶0072 and Fig. 9-10);
receiving a customer-selected evaluation of the heel cushioning of the article of footwear on the customer computing system (see Wilkinson ¶0072 and Fig. 9-10);
transmitting, from the customer computing system to a manufacturer or third party computing system, data including the customer-selected evaluation of the heel cushioning of the article of footwear (see Wilkinson ¶0071).
Wilkinson teaches a first iteration, but not a third iteration. However, Bright teaches a third iteration (see Bright ¶0027, a consumer purchases a product which was recommended to them based on their fit prediction; ¶0020, the fit prediction uses machine learning to improve over time based on the consumer’s purchase history and feedback the consumer provides on items they purchased; ¶0028, the consumer provides feedback on an item they purchased, which can be a product recommended to them based on a fit prediction generated using purchase history of the consumer, which is a subsequent iteration; ¶0029, the feedback is used to improve the fit prediction for the consumer, and the cycle repeats in order to improve the fit prediction over time). It would have been obvious to one of ordinary skill in the art before the effective filing date of invention to combine these references because multiple iterations would lead to fit prediction that would “improve over time” leading to a reduced rate of returns, saving the merchant money on paying for return shipping (see Bright ¶¶0002,3). In addition, it would have been obvious to one of ordinary skill in the art before the effective filing date of invention to combine these references because the results would be predictable. Specifically, the prior art of Wilkinson would continue to teaches these steps for a first iteration except that now it would perform multiple subsequent iterations according to the teachings of Bright. This is a predictable result of the combination.
Referring to Claim 9, Wilkinson teaches a system for customizing an article of footwear comprising:
a computing system configured to:
generate an evaluation system for evaluating heel cushioning of a first article of footwear (see Wilkinson ¶0072 and Fig. 9-10);
generate a customer data record comprising a current level of heel cushioning of the first article of footwear and the received customer-selected evaluation of the heel cushioning (see Wilkinson ¶¶0072,75, the user interface in Figure 9 constitutes a “data record” and comprises both “the recommendation system’s default value for that particular aspect of the item” which include the cushioning on the shoe including the heel, and also the user’s feedback on that particular aspect of the item);
an information entry system configured to receive customer-selected evaluation information of the heel cushioning of the first article of footwear (see Wilkinson ¶0072, a user clicks the heel and adjusts the cushioning slider);
a transmission system to transmit the customer-selected evaluation information of the heel cushioning of the first article of footwear to a manufacturer or third party (see Wilkinson ¶0071).
While Wilkinson teaches customer profiles (see Wilkinson ¶0079) it does not explicitly teach “associate[ing] the generated customer data record with a customer identifier indicating a purchase history of a customer”. However, Bright teaches associating a generated customer data record with a customer identifier indicating a purchase history of a customer (see Bright ¶0040, associating customer data with a customer identifier which indicates their purchase history). It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to expand the feature of generating a customer data record as taught in Wilkinson with the concept of associating the generated customer data record with a customer identifier in Bright because the results would be predictable. Specifically, Wilkinson would continue to teach generating a customer data record except that now the customer data record would be associated with a customer identifier as taught by Bright. This is a predictable result of the combination.
Referring to Claim 10, the combination teaches the system according to claim 9, wherein the computing system, the information entry system, and the transmission system comprise portions of a mobile computing device (see Wilkinson Fig. 1).
Referring to Claim 11, the combination teaches the system according to claim 10, wherein the mobile computing device is a smartphone or a cell phone (see Wilkinson Fig. 1 and ¶0040).
Referring to Claim 12, the combination teaches the system according to claim 10, wherein the mobile computing device is a tablet or a laptop (see Wilkinson Fig. 1 and ¶0040).
Referring to Claim 13, the combination teaches the system according to claim 10, wherein the evaluation system is generated by an application program running on the mobile computing device (see Wilkinson ¶0040).
Referring to Claim 14, the combination teaches the system according to claim 9, wherein the evaluation system provides an evaluation scale through which the customer enters the customer-selected evaluation information of the heel cushioning for the first article of footwear (see Wilkinson Fig. 9-10).
Referring to Claim 16, the combination teaches the system according to claim 9, wherein the evaluation system provides a recommended level of heel cushioning for the first article of footwear (see Wilkinson ¶0075, a default value by the recommendation system).
Referring to Claim 17, the combination teaches the system according to claim 16, wherein the evaluation system provides multiple evaluation scales through which a customer enters information relating to properties of the heel cushioning for the first article of footwear, and wherein the multiple evaluation scales include: (i) a first scale for providing resilience property information (see Wilkinson Fig. 9, cushioning), (ii) a second scale for providing rigidity property information (see Wilkinson Fig. 9, arch support), (iii) a third scale for providing shock absorption property information (see Wilkinson Fig. 9, cushioning), and (v) a fourth scale for providing comfort property information (see Wilkinson Fig. 9, comfort).
Referring to Claim 18, this claim is similar to claim 6 and therefore rejected under the same reasons and rationale.
Referring to Claim 20, this claim is similar to claim 8 and therefore rejected under the same reasons and rationale.
Claim(s) 3 and 15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Wilkinson (US 2015/0242929) in view of Bright (US 2011/0099122) in further view of Reference U (see PTO-892).
Referring to Claim 3, the combination teaches the method according to claim 2, wherein the evaluation scale receives information from the customer relating to the heel cushioning of the first article of footwear over a sliding scale (see Wilkinson Fig. 9-10). Wilkinson does not teach wherein the sliding scale ranges from “too soft” and “too firm”. However, Reference U teaches the rating of “too soft” and “too firm” for cushioning (see Reference U Page 1). It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to apply the concept of “too soft” and “too firm” the sliding scales in the combination of Wilkinson and Bright because the results would be predictable. Specifically, Wilkinson and Bright would continue to teach a sliding scale that a consumer could use to provide feedback on a pair of shoes, except that now the sliding scale would have a “too soft” and “too firm” rating, according to the teachings of Reference U. This is a predictable result of the combination.
Referring to Claim 15, this claim is similar to claim 3 and therefore rejected under the same reasons and rationale.
Claim(s) 7 and 19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Wilkinson (US 2015/0242929) in view of Bright (US 2011/0099122) in further view of Miner (US 2012/0042539).
Referring to Claim 7, the combination teaches the method according to claim 6 and further that the manufacturer can be sent the consumer’s feedback and alter the product based on the feedback (see Wilkinson ¶0071). The combination does not teach what the alteration might entail. Specifically, the combination does not teach wherein the first article of footwear includes a first pattern of apertures in a heel region of a first sole member of the first article of footwear, wherein the second article of footwear includes a second pattern of apertures in a heel region of a second sole member of the second article of footwear, and wherein the second pattern differs from the first pattern. However, Miner teaches using a laser to remove material from the sole structure of a shoe to adjust its stability as desired (see Miner ¶¶0048,80 and Fig. 7-10). It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to combine these references because the combination would lead to an improved “fit profile” as desired by the combination (see Bright ¶0020). In addition, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to combine these references because the results would be predictable. Specifically, the combination of Wilkinson and Bright would continue to teach receiving feedback from a consumer on a shoe and sending that information to a manufacturer to make an improved version, except that now the manufacturer have created a first shoe with a first pattern of apertures in a heel region of a first sole member of the first article of footwear and a second pattern of apertures in a heel region of a second sole member of the second article of footwear, and wherein the second pattern differs from the first pattern, according to the teachings of Miner. This is a predictable result of the combination.
Referring to Claim 19, this claim is similar to claim 7 and therefore rejected under the same reasons and rationale.
Remarks
Additional prior art relevant to the claimed application but not relied upon includes:
Gupta (US 2014/0277663) teaches creating custom-fit apparel designs personalized for individuals and generated using body scanners.
Shum (US 2006/0129416) teaches selling custom footwear by a subscription service.
In regards to the double patenting rejection, the rejection has been withdrawn because the applicant has amended the claims and overcome the rejection.
In regards to the rejection under 35 U.S.C. 101, the applicant respectfully argues on pages 8-9 that the claims do not recite commercial or legal interactions such as marketing and sales activities and/or behaviors. The examiner respectfully disagrees. As an example the limitation “receiving a customer-selected evaluation of the heel cushioning of the first article of footwear” is the act of gathering a review on a product, which is a sales and marketing activity. For these reasons, the applicant’s arguments are not persuasive.
In regards to the rejection under 35 U.S.C. 101, the applicant respectfully argues on pages 9-11 that the claims are directed to “improvements for very specific computing devices” namely “legacy systems used for customizing articles of footwear”. In response, the examiner respectfully argues that the claims are devoid of any technology addressing legacy computing systems nor do they recite any improvement to the functioning of a computer, or to any other technology or technical field. In addition, if it is asserted that the invention improves upon conventional functioning of a computer, or upon conventional technology or technological processes, the disclosure must provide sufficient details such that one of ordinary skill in the art would recognize the claimed invention as providing an improvement. If the specification explicitly sets forth an improvement but in a conclusory manner (i.e., a bare assertion of an improvement without the detail necessary to be apparent to a person of ordinary skill in the art), the examiner should not determine the claim improves technology. An indication that the claimed invention provides an improvement can include a discussion in the specification that identifies a technical problem and explains the details of an unconventional technical solution expressed in the claim, or identifies technical improvements realized by the claim over the prior art. For example, in McRO, the court relied on the specification s explanation of how the particular rules recited in the claim enabled the automation of specific animation tasks that previously could only be performed subjectively by humans, when determining that the claims were directed to improvements in computer animation instead of an abstract idea. McRO, 837 F.3d at 1313-14, 120 USPQ2d at 1100-01. In contrast, the court in Affinity Labs of Tex. v. DirecTV, LLC relied on the specification s failure to provide details regarding the manner in which the invention accomplished the alleged improvement when holding the claimed methods of delivering broadcast content to cellphones ineligible. 838 F.3d 1253, 1263-64, 120 USPQ2d 1201, 1207-08 (Fed. Cir. 2016). See MPEP 2106.04(d). For these reasons, the applicant’s arguments are not persuasive.
In regards to the rejection under 35 U.S.C. 102, the applicant respectfully argues on pages 11-12 that the prior art does not teach the newly amended claims. The examiner respectfully disagrees. Wilkinson teaches generating, by the customer computing system, a customer data record comprising a current level of heel cushioning of the first article of footwear and the received customer-selected evaluation of the heel cushioning (see Wilkinson ¶¶0072,75, the user interface in Figure 9 constitutes a “data record” and comprises both “the recommendation system’s default value for that particular aspect of the item” which include the cushioning on the shoe including the heel, and also the user’s feedback on that particular aspect of the item). As for the limitation of “associating the generated customer data record with a customer identifier indicating a purchase history of a customer” this is taught by the newly introduced prior art of Bright and therefor the examiner has made a rejection under 35 U.S.C. 103. For these reasons, the applicant’s arguments are not persuasive.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MATTHEW E ZIMMERMAN whose telephone number is (571)270-5278. The examiner can normally be reached 8-4pm M-T, 8-12pm W.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Jeff Smith can be reached at (571)272-6763. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/MATTHEW E ZIMMERMAN/Primary Examiner, Art Unit 3688
Prosecution Insights