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 .
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 abstract idea without significantly more.
The claim(s) recite(s) “A method, comprising: monitoring a first game play of a first player playing a video game on a first device of a first platform in a gaming session; monitoring a second game play of a second player playing the video game on a second device of a second platform in the gaming session; determining a first valuation of a performance metric for the first game play by the first player, wherein the performance metric is configured to measure gaming effectiveness when playing the video game; determining a second valuation of the performance metric for the second game play by the second player; determining that a difference between the first valuation and the second valuation does not satisfy a threshold band of operation for the metric that is based on a first global skill level of the first player and a second global skill level of the second player; and augmenting the first game play of the first player to modify the first valuation of the performance metric so that the difference between the first valuation that is modified and the second values satisfies the threshold band of operation, wherein satisfying the threshold band of operation normalizes effectiveness of playing the video game between the first player and the second player.” (Claim 1); “A computer system comprising: a processor; memory coupled to the processor and having stored therein instructions that, if executed by the computer system, cause the computer system to execute a method, comprising: monitoring a first game play of a first player playing a video game on a first device of a first platform in a gaming session; monitoring a second game play of a second player playing the video game on a second device of a second platform in the gaming session; determining a first valuation of a performance metric for the first game play by the first player, wherein the performance metric is configured to measure gaming effectiveness when playing the video game; determining a second valuation of the performance metric for the second game play by the second player; determining that a difference between the first valuation and the second valuation does not satisfy a threshold band of operation for the metric that is based on a first global skill level of the first player and a second global skill level of the second player; and augmenting the first game play of the first player to modify the first valuation of the performance metric so that the difference between the first valuation that is modified and the second values satisfies the threshold band of operation, wherein satisfying the threshold band of operation normalizes effectiveness of playing the video game between the first player and the second player.” (Claim 9); and “A non-transitory computer-readable medium storing a computer program for execution by a processor to perform a method, the non-transitory computer-readable medium comprising: program instructions for monitoring a first game play of a first player playing a video game on a first device of a first platform in a gaming session; program instructions for monitoring a second game play of a second player playing the video game on a second device of a second platform in the gaming session; program instructions for determining a first valuation of a performance metric for the first game play by the first player, wherein the performance metric is configured to measure gaming effectiveness when playing the video game; program instructions for determining a second valuation of the performance metric for the second game play by the second player; program instructions for determining that a difference between the first valuation and the second valuation does not satisfy a threshold band of operation for the metric that is based on a first global skill level of the first player and a second global skill level of the second player; and program instructions for augmenting the first game play of the first player to modify the first valuation of the performance metric so that the difference between the first valuation that is modified and the second values satisfies the threshold band of operation, wherein satisfying the threshold band of operation normalizes effectiveness of playing the video game between the first player and the second player” (Claim 15). Each of the above underlined portions are related to an abstract idea of Certain Methods of Organizing Human Activity particularly managing personal behavior or relationships or interactions between people (including social activities, teaching, and following rules or instructions for a game). Such rules or instructions pertaining to monitoring a first game play of a first player playing a video game; monitoring a second game play of a second player playing the video game in the gaming session; determining a first valuation of a performance metric for the first game play by the first player, wherein the performance metric is configured to measure gaming effectiveness when playing the video game; determining a second valuation of the performance metric for the second game play by the second player; determining that a difference between the first valuation and the second valuation does not satisfy a threshold band of operation for the metric that is based on a first global skill level of the first player and a second global skill level of the second player; and augmenting the first game play of the first player to modify the first valuation of the performance metric so that the difference between the first valuation that is modified and the second values satisfies the threshold band of operation, wherein satisfying the threshold band of operation normalizes effectiveness of playing the video game between the first player and the second player.
This judicial exception is not integrated into a practical application because the claimed invention merely applies the judicial exception, or mere instructions to implement an abstract idea on a computer, or merely uses a computer as a tool to perform the abstract idea (MPEP 2106.05 (f)) and/or generally links the use of the judicial exception to a particular technology or field of use (particularly the technological environment of a gaming device and/or gaming system) (MPEP 2106.05 (h)).
The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because no element or combination of elements is sufficient to ensure any claim of the present application as a whole amounts to significantly more than one or more judicial exceptions, as described above. For example, the recitations of utilization of a “first device”, “second device”, “first platform”, “second platform”, “system”, “processor”, “memory”, and/or “medium” are recited at a level of generality and are merely invoked as tool to perform the used to apply the abstract idea merely implements the abstract idea at a low level of generality and fail to impose meaningful limitations to impart patent-eligibility (the use of a computing device and/or generic components is merely illustrating the environment in which the abstract idea is practiced). These elements and the mere processing of data using these elements do not set forth significantly more than the abstract idea itself applied on general purpose computing devices. Taking the physical elements individually and in combination, the computer-based components perform purely generic computer-based functions that are silent in regards to clearly indicating how a computer aids the method, system, and/or medium and/or the extent to which a computer performs/implements the method, system, and/or medium. The recited generic elements are a mere means to implement the abstract idea. Thus, they cannot provide the “inventive concept” necessary for patent-eligibility. “[I]f a patent’s recitation of a computer amounts to a mere instruction to ‘implement]’ an abstract idea ‘on ... a computer, ’... that addition cannot impart patent eligibility.” Alice, 134 S. Ct. at 2358 (quoting Mayo, 132 S. Ct. at 1301). As such, the significantly more required to overcome the 35 U.S.C. 101 hurdle and transform the claimed subject matter into a patent-eligible abstract idea is lacking. Accordingly, the claims are not patent-eligible.
It is settled law that adding physical elements to an abstract idea will not amount to an “inventive concept" if the physical elements are well-known, routine and conventional elements and they perform their well-known, routine and conventional functions. TLI Communications LLC v. AV Automotive, L.L.C. (Fed Cir 2016):
Turning to the second step in our analysis, we find that the claims fail to recite any elements that individually or as an ordered combination transform the abstract idea of classifying and storing digital images in an organized manner into a patent-eligible application of that idea. It is well-settled that mere recitation of concrete, tangible components is insufficient to confer patent eligibility to an otherwise abstract idea. Rather, the components must involve more than performance of “‘well understood, routine, conventional activit[ies]’ previously known to the industry.” Alice, 134 S. Ct. at 2359 (quoting Mayo, 132 S.Ct. at 1294). We agree with the district court that the claims’ recitation of a “telephone unit,” a “server”, an “image analysis unit,” and a “control unit” fail to add an inventive concept sufficient to bring the abstract idea into the realm of patentability. (Emphasis added by Examiner.)
On the question of preemption, the Federal Circuit has stated 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 DNA 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.)
Nor do the dependent claims 2-8, 10-14, and 16-20 add “significantly more” since they merely add to the claimed concepts relating to managing personal behavior or relationships or interactions between people including following rules or instructions (particularly, game rules or instructions) under the grouping of Certain Methods of Organizing Human Activity. The dependent claims failing to place the claimed invention into a practical applicant or additional generic components of the dependent claims failing to amount to “significantly more” for the same reasons noted above.
Consideration of each and every element of each and every claim, both individually and as an ordered combination, leads to the conclusion that the claim are not patent-eligible under 35 USC §101.
Best Applicable Prior Art
In regards to Claims 1, 9, and 15, Geisner (US 2008/0242421) teaches a computer system comprising a processor coupled to a memory (non-transitory computer-readable medium storing a computer program for execution by the processor to perform a method), the non-transitory computer-readable medium comprising: program instructions for monitoring a first game play of a first player playing a video game on a first device of a first platform in a gaming session; program instructions for monitoring a second game play of a second player playing the video game on a second device of a second platform in the gaming session (¶ 11-14, 20-22, 34-38, 51). Jacob (US 2015/0265926) teaches the step of or program instructions for determining a first valuation of a performance metric for the first game play by the first player a gaming session on a first device, wherein the performance metric is configured to measure gaming effectiveness when playing the video game; the step of or program instructions for determining a second valuation of the performance metric for the second game play by the second player of the gaming session on the first device; the step of or program instructions for determining that a difference between the first valuation and the second valuation does not satisfy a threshold band of operation for the metric; and the step of or program instructions for augmenting the first game play of the first player to modify the first valuation of the performance metric so that the difference between the first valuation that is modified and the second values satisfies the threshold band of operation, wherein satisfying the threshold band of operation normalizes effectiveness of playing the video game between the first player and the second player (¶ 45, 50-52, 55-58).
Neither Geisner or Jacob, alone or in combination, teach the threshold band of operation for the metric being based on a first global skill level of the first player and a second global skill level of the second player. Such limitations not being obvious without undue hindsight reasoning.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Please see attached PTO-892.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to TRAMAR HARPER whose telephone number is (571)272-6177. The examiner can normally be reached 7:30am to 5:30pm.
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, Kang Hu can be reached at (571) 270-1344. 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.
/TRAMAR HARPER/Primary Examiner, Art Unit 3715