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
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.
Status of the Claims
Claims 1,8,15 are amended
Claims 1-20 are pending
The rejection under 35 USC 101 is maintained
Response to Applicant’s Remarks
Applicant’s well-articulated remarks have been considered but are unpersuasive for the reasons below.
Regarding the rejection under 35 USC 101 2A prong 1, Applicant argues that the claimed invention is a technological invention that cannot be performed mentally. (Applicant’s 12/15/25 remarks, p.11-12, arguing the invention “avoid[s] network transmission and storage of the sector-specific third-party validation data and control operations of a computing device to present the predicted future retail sales without the third-party validation data. At least these computer-specific operations involve data transmission optimization and storage resource optimization by eliminating the need for network transmission or storage of the third-party validation data. A human cannot perform network operations mentally and update the transaction data in the data storage device that too when the unbiased third-party validation data is unavailable… and (4) "control operation of a computing device to automatically generate an interactive graphical representation of the predicted future retail sales for the selected sector" requires a computing device with associated display for controlling its operation.”). The examiner respectfully disagrees.
MPEP 2106.05a states "It is important to note that in order for a method claim to improve computer functionality, the broadest reasonable interpretation of the claim must be limited to computer implementation. That is, a claim whose entire scope can be performed mentally, cannot be said to improve computer technology.” Although the claims clearly recite the use of computing networking and storage, the examiner respectfully suggests that these elements are generic computing elements that implement the abstract idea in a particular computing environment. Collecting, analyzing and displaying information, and receiving and transmitting over a network are conventional in the computing arts. (MPEP 2106.05h; See also MPEP 2106.05, Alice v. CLS, “. Nearly every computer will include a ‘communications controller’ and ‘data storage unit’ capable of performing the basic calculation, storage, and transmission functions required by the method claims.”). Applicant’s claims appear to describe obtaining third party sales validation data for payment types, calculate a regression based on the validation data and transaction data and for transactions in sectors without third party validation data, apply the regression and other data to estimate total sales. That is, a particular sector may have no validation data available at all. Therefore there is no avoidance of transmission or storage of data, because the data does not exist. Even assuming there was an avoidance of transmission and storage of validation data, this is best characterized as a heuristic that a human could manually perform. A human could base a decision on some prior discerned pattern and apply it to a new situation rather than obtain new validation data. The natural tradeoff would be a faster but potentially less accurate decision making process. Finally, the claimed GUI does not appear to be more than a generic computer environment as well. At the level it is claimed, it does not appear to recite substantially more than a computer displaying the output of the claimed sales analysis. (MPEP 2106, In contrast, claims do recite a mental process when they contain limitations that can practically be performed in the human mind, including for example, observations, evaluations, judgments, and opinions. Examples of claims that recite mental processes include:
• a claim to “collecting information, analyzing it, and displaying certain results of the collection and analysis,” where the data analysis steps are recited at a high level of generality such that they could practically be performed in the human mind, Electric Power Group v. Alstom, S.A., 830 F.3d 1350, 1353-54, 119 USPQ2d 1739, 1741-42 (Fed. Cir. 2016);”)
Regarding the rejection under 35 USC 101 2A prong 2, Applicant argues that the claimed invention produces an improvement in network consumption and memory. (Applicant’s 12/15/25 remarks, p.14, “Applicant respectfully submits that the present Application "generates estimated total retail sales without obtaining sector-specific validation data via a network, thereby reducing consumption of computing resources" (Application, para 0024], emphasis added), and "allows a user with only credit card/debit card related transaction data obtain a reliable estimate of total retail sales in the selected sector for all payment types without third-party data, thereby improving the functioning of the underlying computing device while reducing system resource usage"”). The examiner respectfully disagrees.
As Applicant explains in the specification, validation data is highly desirable but sometimes not available. (Applicant’s background, “Sometimes, trusted third-party
data sources, such as official government surveys of retail spending, mobility data, corporate
reported sales data, and others, can be used to interpret and correct for the bias in the data.
However, trusted third-party validation data is sometimes unavailable for some countries
and/or retail sectors of broader retail economy, making unbiased retail data unavailable for
these sectors and/or countries.”). Presumably, if validation data it would be collected and analyzed, because of it’s corrective properties. Applicant’s invention does not save bandwidth or memory, because the validation data in question simply does not exist, or it would be obtained.
Applicant also argues that the transformation of the data in the claimed invention is a practical application of an abstract idea and is patent eligible. (Applicant’s 12/15/25 remarks, p.14). The examiner respectfully disagrees.
MPEP 2106.05c explains that a consideration in the practical application analysis is the transformation of an article to a different state or thing. (MPEP 2106.05c, “An “article” includes a physical object or substance. The physical object or substance must be particular, meaning it can be specifically identified. “Transformation” of an article means that the “article” has changed to a different state or thing. Changing to a different state or thing usually means more than simply using an article or changing the location of an article. A new or different function or use can be evidence that an article has been transformed. Purely mental processes in which thoughts or human based actions are “changed” are not considered an eligible transformation. For data, mere “manipulation of basic mathematical constructs [i.e.,] the paradigmatic ‘abstract idea,’” has not been deemed a transformation. CyberSource v. Retail Decisions, 654 F.3d 1366, 1372 n.2, 99 USPQ2d 1690, 1695 n.2 (Fed. Cir. 2011) (quoting In re Warmerdam, 33 F.3d 1354, 1355, 1360, 31 USPQ2d 1754, 1755, 1759 (Fed. Cir. 1994)).”) The examiner respectfully suggests that the data transformation in Applicant’s claim does not involve a physical article and is more akin to mathematical constructs that are not considered transformative.
Under the 2B analysis, Applicant argues that the claim is patent eligible, citing the DDR case. (Applicant’s 12/15/25 remarks, p.15). The examiner notes that in DDR, the invention at issue enhancing ecommerce website navigation. (DDR Holdings, “The '399 patent's claims are different enough in substance from those in Ultramercial because they do not broadly and generically claim "use of the Internet" to perform an abstract business practice (with insignificant added activity). Unlike the claims in Ultramercial, the claims at issue here specify how interactions with the Internet are manipulated to yield a desired result — a result that overrides the routine and conventional sequence of events ordinarily triggered by the click of a hyperlink.”) DDR is at least distinguishable, because DDR improved website navigation. Applicant’s use of computers is to gather, analyze and display data rather than improve the computer or network itself.
Applicant also argues that claimed invention is unconventional, citing the Bascom case. (Applicant’s 12/15/25 remarks, p.15). However, in Bascom, the invention at issue involved an inventive placement of filters at unconventional locations in a network. (Bascom, “The inventive concept described and claimed in the '606 patent is the installation of a filtering tool at a specific location, remote from the end-users, with customizable filtering features specific to each end user. This design gives the filtering tool both the benefits of a filter on a local computer and the benefits of a filter on the ISP server.”) Although Applicant’s claimed features apart from the computing environment may be unconventional, these features lie within the realm of the abstract idea and not “additional” elements of the claim considered under the 2B analysis. (MPEP 2106.05, “Instead, an "inventive concept" is furnished by an element or combination of elements that is recited in the claim in addition to (beyond) the judicial exception, and is sufficient to ensure that the claim as a whole amounts to significantly more than the judicial exception itself. Alice Corp., 573 U.S. at 27-18, 110 USPQ2d at 1981 (citing Mayo, 566 U.S. at 72-73, 101 USPQ2d at 1966). Evaluating additional elements to determine whether they amount to an inventive concept requires considering them both individually and in combination to ensure that they amount to significantly more than the judicial exception itself. “) Bascom is at least distinguishable, because of the placement of filtering at different network hardware locations that was unconventional. However, Applicant’s claimed hardware only gathers data, performs analysis and displays a result, which is a generic use of a computer. (MPEP 2106, “In contrast, claims do recite a mental process when they contain limitations that can practically be performed in the human mind, including for example, observations, evaluations, judgments, and opinions. Examples of claims that recite mental processes include: collecting information, analyzing it, and displaying certain results of the collection and analysis,” where the data analysis steps are recited at a high level of generality such that they could practically be performed in the human mind, Electric Power Group v. Alstom, S.A., 830 F.3d 1350, 1353-54, 119 USPQ2d 1739, 1741-42 (Fed. Cir. 2016);”)
Applicant also argues that the claimed invention is not conventional, requesting evidence to prove the claimed effects were conventional, citing the Berkheimer decision. (Applicant’s 12/5/25 remarks, p.16).
The examiner concurs that the claimed abstract idea is in fact novel and not conventional, as evidenced by the lack of a prior art rejection. However, these novel features are part of the abstract idea. The examiner only points out that the abstract idea is implemented by an unremarkable generic computer, which is considered by the courts to be conventional, and this does not render the claim patent eligible. (Electric Power Group v. Alstom, “Though lengthy and numerous, the claims do not go beyond requiring the collection, analysis, and display of available information in a particular field, stating those functions in general terms, without limiting them to technical means for performing the functions that are arguably an advance over conventional computer and network technology. The claims, defining a desirable information-based result and not limited to inventive means of achieving the result, fail under § 101.”; SAP v. Investpic, “In those cases [e.g. BASCOM], claims were patent-eligible because they were directed to improvements in the way computers and networks carry out their basic functions. Enfish, 822 F.3d at 1335-36; BASCOM, 827 F.3d at 1348-49; see Electric Power, 830 F.3d at 1354. The claims in Visual Memory LLC v. NVIDIA Corp., 867 F.3d 1253, 1259-60 (Fed. Cir. 2017), were similar. Here, the focus of the claims is not any improved computer or network, but the improved mathematical analysis…”).
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., a law of nature, a natural phenomenon, or an abstract idea) without significantly more. Regarding independent claims 1,8,15 the claimed invention recites an abstract idea without significantly more. The claims recite the abstract idea of determine sales data which is a mental process. Other than reciting a device/GUI nothing in the claims precludes the steps from being performed mentally. But for the device the limitations on storing biased single payment sales transaction data across a plurality of sectors in a geographic area during a time period, obtain unbiased third party validation data, calculate regression coefficient defining relationship between transaction and validation data, filter transaction data for sector specific data, determine selected sector has no third party validation data, estimate total sales for the selected sector using sector specific data , regression coefficient and sector specific constant, update transaction data with unbiased data, predict future sales based on updated transaction data, generate graphical representation of future sales is a process that under its broadest reasonable interpretation could be performed by mentally but for the recitation of generic computer elements. If claim limitations, under the broadest reasonable interpretation, covers performance of the limitation in the mind but for the recitation of generic computer components, then it falls within the “Mental Processes” grouping of abstract ideas. Further the above limitations related to determining sales stripped of the identified additional and insignificant elements could also be considered a “Method of Organizing Human Activity” relating to the managing human behavior and interactions. To the extent that the claimed invention utilizes a regression analysis, this also falls under the mathematical calculation grouping of abstract ideas. Thus, the claims recite an abstract idea.
The judicial exception is not integrated into a practical application. The computers are recited at a high-level of generality such that it amounts no more than mere instructions to apply the exception using generic computer components. The additional element(s) does not integrate the abstract idea into a practical application because it does not impose any meaningful limits on practicing the abstract idea. Simply implementing the abstract idea on a generic computer environment is not a practical application of the abstract idea and does not take the claim out of the mental process, method of organizing human activity or mathematical calculation grouping.
The claims do 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 device amounts to no more than mere instructions to apply the exception using a generic computer components. Mere instructions to apply an exception using generic computer components cannot provide an inventive concept Collecting, analyzing and displaying information, and receiving and transmitting over a network are conventional in the computing arts. (MPEP 2106.05h; See also MPEP 2106.05, Alice v. CLS, “. Nearly every computer will include a ‘communications controller’ and ‘data storage unit’ capable of performing the basic calculation, storage, and transmission functions required by the method claims.”). The claims are not patent eligible.
Regarding the dependent claims, these claims are directed to limitations which serve to limit the sales determination steps. The subject matter of claims 2/16 (display sector specific transaction data of total sales for a sector), 3/10/17 (analyze sector data by a trained regression model to generate de-biased data absent validation data), 4/11/18 (generate forecasts using predictive modeling), 5/12/19 (display updated de-biased data within a geographic area), 6/13 (payment is a credit or debit card), 7/14/20 (perform filtering and estimation for second sector), 9 (update transaction data corrected for bias) appear to add additional steps to the abstract idea, implemented by generic computers. These claims neither introduce a new abstract idea nor additional limitations which are significantly more than an abstract idea. They provide descriptive details that offer helpful context, but have no impact on statutory subject matter eligibility.
Therefore the limitations on the invention, when viewed individually and in ordered combination are directed to in-eligible subject matter.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ALLEN C CHEIN whose telephone number is (571)270-7985. The examiner can normally be reached Monday-Friday 8am -5pm.
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/ALLEN C CHEIN/Primary Examiner, Art Unit 3627