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 .
Status of Claims
Claim 9, 14 has been canceled.
Claims 1 – 8 and 10 - 13 have been amended
Claims 15 – 21 are newly added.
Claims 1- 8, 10 – 13 and 15 – 21 are presently pending
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.
This subject matter eligibility analysis follows the latest guidance for Patent Subject Matter Eligibility Guidance.
Claims 1-8,10-13 and 15-21 are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter.
Step 1:
Claims 1 –8, 10 - 11 are drawn to a system.
Claims 12, 15 - 18 are drawn to a method.
Claims 13, 19 - 22 are drawn to a CRM
Thus, initially, under Step 1 of the analysis, it is noted that the claims are directed towards eligible categories of subject matter.
Step 2A:
Prong 1: Does the Claim recite an Abstract idea, Law of Nature, or Natural Phenomenon?
Claims 1 -8, 10 and 11 are exemplary because they require substantially the same operative limitations of the remaining claims (reproduced below.) Examiner has underlined the claim limitations which recite the abstract idea, discussed in detail in the paragraphs that follow.
1. An affective gaming system, comprising:
one or more processors; and
one or more non-transitory machine-readable media storing instructions that,
when executed by the one or more processors, cause the affective gaming system to:
execute a session of a video game on an entertainment device for a first user of a plurality of users participating in the session of the video game, wherein
the video game is a multi-player video game;
receive, during gameplay of the session, biometric data associated with the first user;
generate, based on at least part of the biometric data, current emotion data associated with the first user;
generate, based at least in part on the current emotion data associated with the first user, target emotion data associated with the first user;
determine a difference between the target emotion data associated with the first user and the current emotion data associated with the first user to evaluate whether the difference meets or exceeds a threshold difference;
modify, responsive to the difference meeting or exceeding the threshold difference, one or more aspects of the video game that are specific to the first user;
cause the entertainment device to render the modified one or more aspects of the video game to the first user, wherein the modified one or more aspects of the video game is not rendered to other users participating in the session of the video game during the gameplay;
iteratively perform the generation of the current emotion data and the target motion data, the determination of the difference, and the cause of the rendering until the difference does not meet or exceed the threshold difference; and
cease the modification of the one or more aspects of the video game that are specific to the first user.
The claims recite italicized limitations that fall within at least one of the groupings of abstract ideas enumerated in the 2019 PEG, namely, Mental Processes and Certain methods of organizing human activity.
More specifically, under this grouping, the italicized limitations represent For example, the italicized limitations are directed towards the receiving of biometric information, analyzing the information to determining emotional states and modifying aspects of the video game in response wherein the modifications are specific to a user of the game session and the process is iteratively performed. This constitutes mental processes (Concepts performed in the human mind such as observation evaluation, judgment and opinion) and certain methods of organizing human activity (managing personal behavior or relationships or interactions between people (including social activities, teaching, and following rules or instructions).
Prong 2: Does the Claim recite additional elements that integrate the exception in to a practical application of the exception?
Although the claims recite additional limitations, these limitations do not integrate the exception into a practical application of the exception. For example, the claims require additional limitations as follow, (emphasis added): processors, memory, entertainment devices and CRM.
These additional limitations do not represent an improvement to the functioning of a computer, or to any other technology or technical field, (MPEP 2106.05(a)). Nor do they apply the exception using a particular machine, (MPEP 2106.05(b)). Furthermore, they do not effect a transformation. (MPEP 2106.05(c)). Rather, these additional limitations amount to an instruction to “apply” the judicial exception using a computer as a tool to perform the abstract idea. Therefore, since the additional limitations, individually or in combination, are indistinguishable from a computer used as a tool to perform the abstract idea, the analysis continues to Step 2B, below.
Step 2B:
Under Step 2B, the claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception because they amount to conventional and routine computer implementation and mere instructions for implementing the abstract idea on generic computing devices.
For example, as pointed out above, the claimed invention recites additional elements facilitating implementation of the abstract idea. Applicant has claimed computer components, processors, memory, entertainment devices and CRM. However, all of these elements viewed individually and as a whole, are indistinguishable from conventional computing elements known in the art. Therefore, the additional elements fail to supply additional elements that yield significantly more than the underlying abstract idea.
As the Alice court cautioned, citing Flook, patent eligibility cannot depend simply on the draftsman’s art. Here, amending the claims with generic computing elements does not (in this Examiner’s opinion), confer eligibility.
Regarding the Berkheimer decision, Applicant’s specification establishes that these additional elements are generic:
[0018] Referring to Figure 1, an example of an entertainment system 10 is a computer or console such as the Sony ® PlayStation 5 ® (PS5).
[0019] The entertainment system 10 comprises a central processor 20. This may be a single or multi core processor, for example comprising eight cores as in the PS5. The entertainment system also comprises a graphical processing unit or GPU 30. The GPU can be physically separate to the CPU, or integrated with the CPU as a system on a chip (SoC) as in the PS5.
[0020] The entertainment device also comprises RAM 40, and may either have separate RAM for each of the CPU and GPU, or shared RAM as in the PS5. The or each RAM can be physically separate, or integrated as part of an SoC as in the PS5. Further storage is provided by a disk 50, either as an external or internal hard drive, or as an external solid state drive, or an internal solid state drive as in the PS5.
[0031] Multi-player video games are typically hosted via a network such as LAN, WLAN, the Internet, P2P networks, or the like. Figure 3 depicts a typical network environment for a multi-player video game, in which game server 400 is connected to a plurality of client devices (entertainment devices) 10-A to 10-N via network 300. It should be noted that client devices need not only take the form of an entertainment device (such as a PS5), but may also include telephones, computers, televisions, or any other device capable of connecting to a network.
[0032] Therefore, and as will be appreciated by persons skilled in the art, the affective gaming system may potentially be implemented by any device (or combination of devices) involved in the generation or administration of the multi-player video game, such as the entertainment device 10 (whether in a P2P structure, or operating as either a client or server, either as a real or virtualized device), or a dedicated server for example provided by the publishers of the video game.
Therefore, these elements fail to supply additional elements that yield significantly more than the underlying abstract idea. Thus, taken alone, the additional elements do not amount to significantly more than the above-identified judicial exception (the abstract idea).
Looking at the limitations as an ordered combination adds nothing that is not already present when looking at the elements taken individually. There is no indication that the combination of elements improves the functioning of a computer or improves any other technology. Their collective functions merely provide conventional computer implementation.
Moreover, the claims do not recite improvements to another technology or technical field. Nor, do the claims improve the functioning of the underlying computer itself -- they merely recite generic computing elements. Furthermore, they do not effect a transformation of a particular article to a different state or thing: the underlying computing elements remain the same.
Concerning preemption, the Federal Circuit has said in Ariosa Diagnostics, Inc., V. Sequenom, Inc., (Fed Cir. June 12, 2015):
The Supreme Court has made clear that the principle of preemption is the basis for the judicial exceptions to patentability. Alice, 134 S. Ct at 2354 (“We have described the concern that drives this exclusionary principal as one of pre-emption”). For this reason, questions on preemption are inherent in and resolved by the § 101 analysis. The concern is that “patent law not inhibit further discovery by improperly tying up the future use of these building blocks of human ingenuity.” Id. (internal quotations omitted). In other words, patent claims should not prevent the use of the basic building blocks of technology—abstract ideas, naturally occurring phenomena, and natural laws. While preemption may signal patent ineligible subject matter, the absence of complete preemption does not demonstrate patent eligibility. In this case, Sequenom’s attempt to limit the breadth of the claims by showing alternative uses of cffDNA outside of the scope of the claims does not change the conclusion that the claims are directed to patent ineligible subject matter. Where a patent’s claims are deemed only to disclose patent ineligible subject matter under the Mayo framework, as they are in this case, preemption concerns are fully addressed and made moot. (Emphasis added.)
For these reasons, it appears that the claims are not patent-eligible under 35 USC §101.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim(s) 1- 8, 10 – 13 and 15 – 21 is/are rejected under 35 U.S.C. 103 as being unpatentable over Sumant et al (US 2020/0206631) in view of “EEG-triggered dynamic difficulty adjustment for multiplayer games” by Stein et al (hereinafter “Stein”)
As per claim 1, Sumant discloses:
one or more processors; and (Sumant 0126, 0127)
one or more non-transitory machine-readable media storing instructions that, when executed by the one or more processors, cause the affective gaming system to: (Sumant 0126, 0127)
execute a session of a video game on an entertainment device for a first user(Sumant discloses a unit that hosts a video game session) (Sumant 0031, 0096)
receive, during gameplay of the session, biometric data associated with the first user (Sumant discloses the biometric data from a first user that is participating in the session of a video game) (Sumant 0025, 00350096, 0097)
generate, based on at least part of the biometric data, current emotion data associated with the first user; (Sumant discloses the determination of a current or predicted emotion of the user based upon the current biometrics) (Sumant 0099)
(Sumant discloses the determination of a desired emotional state based upon the current or predicted emotional state) (Suman 0099)
determine a difference between the target emotion data associated with the first user and the current emotion data associated with the first user to evaluate whether the difference meets or exceeds a threshold difference; (Sumant discloses the modification of a video game play or data based upon the difference of the predicted emotion state and desired emotional state (Sumant 0100 – 0102). Sumant discloses the conversion of the desired emotional state and the predicted emotion state to a numerical value to determine a degree of difference when compared to a threshold (i.e. does it match or do the numerical values representing states match) (Sumant 0100)
modify, responsive to the difference meeting or exceeding the threshold difference, one or more aspects of the video game that are specific to the first user; (Sumant discloses the modification of a video game play or data based upon the difference of the predicted emotion state and desired emotional state) (Sumant 0100 – 0102)
iteratively perform the generation of the current emotion data and the target emotion data, the determination of the difference, and the cause of the rendering until the difference does not meet or exceed the threshold difference; and cease the modification of the one or more aspects of the video game that are specific to the first user. (Sumant discloses that the process occurs in real time and is iterative wherein game modifications occur repeatedly) Sumant states: “ Further, it should be understood that the process 400 may be updated or performed repeatedly over time. For example, the process 400 may be repeated for each play session of a video game 112, for each round of the video game 112, each week, each month, for every threshold number of play sessions, for every threshold number of times a user loses or fails to complete an objective, each time a win ratio drops below a threshold level, and the like. However, the process 400 may be performed more or less frequently. It should also be understood that the process 400 may be performed in real-time, or substantially close to real-time, enabling the video game 112 to be modified while the user is playing the video game 112. Thus, the process 400 can make for a dynamic gaming experience.” (Sumant 0096)
Sumant fails to disclose:
of a plurality of users participating in the session of the video game, wherein the video game is a multi-player video game;
cause the entertainment device to render the modified one or more aspects of the video game to the first user, wherein the modified one or more aspects of the video game is not rendered to other users participating in the session of the video game during the gameplay;
However in a similar field of endeavor, Stein discloses a game system wherein a multiplayer game session is executed wherein multiple players engage in the game session at the same time and a DDA process is used to adjust the difficulty for each individual player based upon their determined excitement level or lack thereof. The difficulty of the game may comprise adjustments that are unique to each player and thus the adjustment is rendered only for that particular player and not another user of the multiplayer game. (Stein page 16, page 17, “3.1 Game modifications”; page 17, par 14)
It would be obvious to one of ordinary skill in the art, at the time of filing, to modify Sumant in view of Stein to provide a multiplayer game system that modifies the game multiplayer game session experience wherein the modifications are unique to each particular game player in the session and not rendered or executed for everyone in the game session. This would be beneficial as Stein discloses “This approach attempts to directly address the core problem of degraded game experience, rather than relying on a scoring mechanism or similar heuristics to determine when the players are no longer excited by the game.” (Stein page 1, par 5)
As per claim 2, Sumant discloses:
determine an expected range of values that the current emotion data associated with the first user is expected to fall within, (Sumant discloses the determination of a range of a degree threshold) (Sumant 0100)
wherein the target emotion data associated with the first user if the current emotion data associated with the first user does not fall within the expected range of values. (Sumant discloses the determination of a target or desired emotion based upon values that correspond (i.e. “These values may be compared separately to corresponding values of the desired emotional state )(Sumant 0100)
As per claim 3, Sumant discloses:
the expected range of values is determined based on a predetermined range of values. (Sumant discloses the determination of a target or desired emotion based upon values that correspond (i.e. “These values may be compared separately to corresponding values of the desired emotional state )(Sumant 0100), the values being predetermined ranges.
As per claim 4, Sumant discloses:
wherein the expected range of values is determined based on at least one of a genre of the video game and an in-game context of the video game. (Sumant discloses the selecting of a video game configuration based upon the genre of the game such as a horror game and the context wherein it attempts to make the game even scarier for an adult by selecting a predetermined game configuration based upon the desired emotional state)( Sumant 0102).
As per claim 5, Sumant discloses:
receive biometric data associated with two or more other
users of the plurality of users, the two or more other users being different from the first user; generate, based on at least part of the biometric data associated with the two or more other users, current emotion data associated with each of the two or more other users; and determine the expected range of values by performing a statistical analysis on the current emotion data. (Sumant discloses “In some embodiments, a user may play the video game 112 with other users who are in the room or who are elsewhere in the case of network-based multiplayer. In some such embodiments, the processes 300 and/or 400 may determine an aggregate predicted emotional state for the users playing the video game 112. The determination of whether or not to modify the video game 112 may be based at least in part on the aggregate predicted emotional state for the users. Alternatively, or in addition, the determination of whether or not to modify the video game 112 may be based on a majority of the users playing the video game 112. For example, if it is determined that four of six players playing the video game 112 are associated with a negative emotional state, the game configuration system 134 may modify a state or configuration of the video game 112. If on the other hand it is determined, for example, that only one of the six players is associated with a negative emotional state, the game configuration system 134 may determine to not make any changes to the video game 112.” (Sumant 0105)
As per claim 6, Sumant discloses:
wherein the target emotion data associated with the first user is generated based on the expected range of values. (Sumant discloses the selecting of a video game configuration based upon the genre of the game such as a horror game and the context wherein it attempts to make the game even scarier for an adult by selecting a predetermined game configuration based upon the desired emotional state) ( Sumant 0102).
As per claim 7, Sumant discloses:
wherein the determining unit comprises one or more trained determining models that are trained to determine the expected range of values. (Sumant discloses machine learning models that are trained to determine the current emotion state of the user such as if they are happy, sad, frustrated, disgusted, scared or the like (i.e. expected range of values))(Sumant 0064)
As per claim 8, Sumant discloses:
wherein a first trained generating model is trained to generate the current emotion data, and a trained generating model is trained to generate the target emotion data. (Sumant discloses a trained model to determine current emotion data (Suman 0064) and the trained model to determine target emotion data in that it determines if the user is likely to keep playing the game or to “churn” (i.e. stop playing the game) (Sumant 0065).
As per claim 10, Sumant discloses:
wherein the biometric data comprises one or more selected from the list consisting of: i. a galvanic skin response; ii. a heart rate; iii. a breathing rate; iv. a blink rate; v. a metabolic rate; vi. video data; vii. audio data; and viii. one or more input signals. (Sumant 0025)
As per claim 11, Sumant discloses:
wherein the biometric data is received from one or more of: i. a fitness tracking device; ii. a user input device; iii. a camera; and iv. a microphone. (Sumant 0025)
Dependent claim(s) 12 and 13 is/are anticipated by Sumant based on the same analysis set forth for claim(s) 1, which are similar in claim scope.
As per claim 15, receiving biometric data associated with two or more other users of the plurality of users, the two or more other users being different from the first user; generating, based on at least part of the biometric data associated with the two or more other users, current emotion data associated with each of the two or more other users; and determining an expected range of values by performing a statistical analysis on the current emotion data, wherein the target emotion data associated with the first user is generated when the current emotion data associated with the first user does not fall within the expected range of values. (Combination of Sumant and Stein, wherein Sumant discloses the determination of a target or desired emotion based upon values that correspond (i.e. “These values may be compared separately to corresponding values of the desired emotional state )(Sumant 0100), to corresponding values of desired emotion to the desired emotion data) (Sumant 0100) and Stein teaches the use of a multiplayer game wherein multiple users EEG data is monitored) (Stein page 16, page 17, “3.1 Game modifications”; page 17, par 14).
As per claim 16, wherein the biometric data comprises one or more of.i. a galvanic skin response; ii. a heart rate; iii. a breathing rate; iv. a blink rate; v. a metabolic rate; vi. video data; vii. audio data; and viii. one or more input signals. (Sumant 0025)
As per claim 17, wherein the generation of the current emotion data or target emotion data is performed using one or more machine learning models trained on biometric data collected during one or more previously hosted sessions of the video game. (Sumant discloses machine learning models that are trained to determine the current emotion state of the user such as if they are happy, sad, frustrated, disgusted, scared or the like (i.e. expected range of values))(Sumant 0064) Sumant further discloses that the models may be trained on historical data from past plays of the user of the video game) (Sumant 0062 -0063)
As per claim 18, wherein a first trained generating model is trained to generate the current emotion data, and a second trained generating model is trained to generate the target emotion data. (Sumant discloses the using trained models to determine the churn rate and/or the emotional state of the user) (Suman 0065)
As per claim 19, receiving biometric data associated with two or more other users of the plurality of users, the two or more other users being different from the first user; generating, based on at least part of the biometric data associated with the two or more other users, current emotion data associated with each of the two or more other users; and determining an expected range of values by performing a statistical analysis on the current emotion data, wherein the target emotion data associated with the first user is generated when the current emotion data associated with the first user does not fall within the expected range of values. (Combination of Sumant and Stein, wherein Sumant discloses the determination of a target or desired emotion based upon values that correspond (i.e. “These values may be compared separately to corresponding values of the desired emotional state )(Sumant 0100), to corresponding values of desired emotion to the desired emotion data) (Sumant 0100) and Stein teaches the use of a multiplayer game wherein multiple users EEG data is monitored) (Stein page 16, page 17, “3.1 Game modifications”; page 17, par 14).
As per claim 20, wherein the biometric data comprises one or more of:i. a galvanic skin response; ii. a heart rate; iii. a breathing rate; iv. a blink rate; v. a metabolic rate; vi. video data; vii. audio data; and viii. one or more input signals. (Sumant 0025)
As per claim 21, wherein the generation of the current emotion data or target emotion data is performed using one or more machine learning models trained on biometric data collected during one or more previously hosted sessions of the video game. (Sumant discloses machine learning models that are trained to determine the current emotion state of the user such as if they are happy, sad, frustrated, disgusted, scared or the like (i.e. expected range of values))(Sumant 0064) Sumant further discloses that the models may be trained on historical data from past plays of the user of the video game) (Sumant 0062 -0063)
As per claim 22, wherein a first trained generating model is trained to generate the current emotion data, and a second trained generating model is trained to generate the target emotion data. (Sumant discloses the using trained models to determine the churn rate and/or the emotional state of the user) (Suman 0065)
Response to Arguments
Applicant’s arguments with respect to claim(s) 1- 8, 10 – 13 and 15 – 21 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument. Please see above rejection in view of Stein.
Regarding the rejection of the claims under 35 U.S.C. 101, the Applicant argues regarding Step 2A, Prong I, that the claims do not recite abstract ideas such as mental process and certain methods of organizing human activity. The Applicant goes on to state that the claims cannot be “practically performed in the human mind” and recites steps a – i as evidence and support that the claims cannot be viewed as a mental process or certain methods of organizing human activity. The Examiner respectfully disagrees and notes that barring the generic utilization of “entertainment devices” the claims can indeed be performed by a human utilizing pen and paper and utilizing powers of observation wherein a game is presented and played between players such as a tabletop RPG. A dungeon master or game administrator can iteratively observe the mental states of various players, and modify the game specific to individual players to make the game easier or harder for that particular player while not making any modification to other players within the same game session. This fits clearly in the realm of mental processes and certain methods of organizing human activity.
Regarding Step 2A, Prong 2, the Applicant argues, “Claim 1 when considered as a whole, have integrated any alleged exception into a practical application by providing a specific, technological solution to a recognized technical problem in computer-based entertainment systems by improving the personalization of multi-player video game play in real time without disrupting other users or the global game state.” (Remarks page 16). The Examiner respectfully disagrees and notes that the alleged improvement that the Applicant argues is more akin to an improvement to the user experience while playing the game and not an improvement to a technology or technical field. This is evidence by the Applicants further statement of “As discussed in the specification, conventional video games are static or globally adaptive: they present the same content to all users, regardless of individual emotional response, or at best, adjust game parameters in a way that affects all players or the entire session. This can lead to dissatisfaction or a sense of isolation for users whose emotional state differs from the intended experience, especially in multi-player environments. Additionally, prior systems do not provide real-time, individualized emotional adaptation that is isolated to the affected user. See paragraphs [0003] and [0026] of the as-published application. “ (Remarks page 16)
The Applicant further goes on to state “The entertainment device is then caused to render the modified game aspects exclusively to the first user, while ensuring that these modifications are not rendered to any other users within the same session. This selective, automated rendering is a technical advancement that is fundamentally rooted in the system's architecture and the operation of its hardware and software subsystems.” (Remarks page 17). The Examiner respectively disagrees and questions as to how the automatic rendering or presenting of selected changes or modification in a game are “fundamentally rooted in the systems architecture and the operation of its hardware and software subsystems.”, thus providing a practically application. The Examiner notes that modifying game parameters and selectively applying them to game players (i.e. applying game rules or constraints to specific players) have been done in games for eons.
The Applicant further states: “The claimed system also implements an iterative feedback loop, wherein the biometric acquisition, emotion data processing, difference evaluation, and rendering steps are automatically repeated until a defined convergence criterion is met. Once the difference between the current and target emotion data falls below a threshold, the system automatically ceases further modification and rendering of the affected game aspects. This feedback-driven, automated control mechanism shows an improvement over conventional, static video game logic, and represents an advancement in the technical field of real-time, adaptive multimedia rendering and control within entertainment devices.” The Examiner respectfully disagrees and notes that what the Applicant argues is essentially what falls under the grouping of a mental process as defined by PEG, wherein concepts performed in the human mind include an observation, evaluation, judgment. A human mind along with pen and paper can the observe (biometric acquisition), evaluate (emotion data processing, difference evaluation), and make judgments (rendering steps are automatically repeated until a defined convergence criterion is met). Thus, the Examiner maintains the rejection.
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.
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/RAW/ Examiner, Art Unit 3715
3/4/2026
/KANG HU/ Supervisory Patent Examiner, Art Unit 3715