DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 03/17/2026 has been entered. Claims 1, 6, 12 and 17 are amended. Claims 1-9 and 12-20 are currently pending in the application.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory obviousness-type double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); and In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on a nonstatutory double patenting ground provided the conflicting application or patent either is shown to be commonly owned with this application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement.
Effective January 1, 1994, a registered attorney or agent of record may sign a terminal disclaimer. A terminal disclaimer signed by the assignee must fully comply with 37 CFR 3.73(b).
Claims 1-9 and 12-20 are rejected on the ground of nonstatutory obviousness-type double patenting as being obvious over claims 1-9 and 12-20 of copending US Application No. 14/636,604 in view of Packard et al. (US Pub. 2011/0039249 A1) (Packard), in view of Dugas (US 20130085955 A1), Cheng et al. (US 20080286737 A1) and further in view of Ferriol et al. (US 20030129574 A1) (Ferriol), as shown by representative independent claims below:
Copending US Application No. 14/636,604
US Application No. 18/492,250
Claim 1: A method for collating electronic course activities from a plurality of electronic courses into an adjustable personal learning stream for a user that is associated with a learning management system, comprising:
a) selecting, on a client device associated with the user, data associated with a primary electronic course activity for a primary electronic course within the plurality of electronic courses, wherein the plurality of electronic courses are stored in connection with the learning management system, the user is associated with the primary electronic course, and the primary electronic course activity is an electronic learning activity to be completed by the user in connection with the primary electronic course;
b) selecting, on the client device, data associated with a primary learning outcome for the primary electronic course activity;
c) determining related electronic course activities that are associated with a learning outcome related to the primary learning outcome, the related electronic course activities being associated with electronic courses within the plurality of electronic courses, wherein the related electronic course activities that are associated with the learning outcome related to the primary learning outcome are determined based at least in part
on the learning outcome associated with the related electronic course activities and the primary learning outcome;
d) generating, by the learning management system, the personal learning stream associated with the user and an electronic pacing guide based on one or more course activities, the user's learner proficiency with respect to the primary learning outcome, grade-weights of the on one or more course activities, and a proximity of the one or more course activities to other activities, wherein the personal learning stream is electronic content that is deliverable to the user via an electronic device, and wherein the personal learning stream is stored on a computer- readable storage medium, and wherein the electronic pacing guide is derived from at least one pacing activity associated with the primary learning outcome;
e) including the primary electronic course activity and related electronic course activities into the personal learning stream associated with the user; and
f) providing, by the learning management system, the personal learning stream to the client device associated with the user via a network, wherein the personal learning stream is dynamically updatable based on changing proficiency data, recorded electronic activities or pacing data associated with the user, wherein the proficiency data for the user is updatable upon completion of at least one of the electronic course activities, and wherein upon detection of a change of the proficiency data the personal learning stream is alterable such that at least a duration of time allotted for a non-completed electronic activity included in the personal learning stream is automatically modified based at least on the change of the proficiency data.
Claim 1: A method for collating electronic course activities from a plurality of electronic courses into an adjustable personal learning stream for each of a plurality of users that is associated with a learning management system, comprising:
a) selecting, on a client device associated with at least one user of the plurality of users, data associated with a primary electronic course activity for a primary electronic course within the plurality of electronic courses, wherein the plurality of electronic courses are stored in connection with the learning management system, the user is associated with the primary electronic course, and the primary electronic course activity is an electronic learning activity to be completed by the user in connection with the primary electronic course;
b) selecting, on the client device, data associated with a primary learning outcome for the primary electronic course activity;
c) determining related electronic course activities that are associated with a learning outcome related to the primary learning outcome based on a predetermined degree of similarity between the related electronic course activities and the primary learning outcome, the related electronic course activities being associated with other electronic courses within the plurality of electronic courses, wherein the related electronic course activities that are associated with the learning outcome related to the primary learning outcome are determined based at least in part on the learning outcome associated with the related electronic course activities and the primary learning outcome;
d) collating, via the learning management system, a plurality of similar learning activities from a plurality of other courses associated with the user, having a degree of similarity above a predetermined threshold;
e) generating, by the learning management system, the personal learning stream associated with the user and an electronic pacing guide, wherein the pacing guide is determined by: course activities and the related electronic course activities, the user's learner proficiency with respect to the primary learning outcome, similar learning activities of at least one other course with the degree of similarity above a predetermined threshold; grade-weights of the one or more course activities, and a proximity of the one or more course activities to other activities, wherein the personal learning stream is electronic content that is deliverable to the user via an electronic device, wherein the personal learning stream is stored on a computer-readable storage medium, and wherein the electronic pacing guide is derived from at least one pacing activity associated with the primary learning outcome and the pacing guide is updated on an improvement to the user's learning proficiency and wherein a duration of time allotted for the pacing guide activities is determined by a grade-weight of the primary electronic course activity;
f) including the primary electronic course activity and related electronic course activities into the personal learning stream associated with the user;
g) providing, by the learning management system, the personal learning stream to the client device associated with the user via a network, wherein the personal learning stream is dynamically updatable based on changing proficiency data, recorded electronic activities or pacing data associated with the user, wherein the proficiency data for the user is updatable upon completion of at least one of the electronic course activities, and wherein upon detection of a change of the proficiency data the personal learning stream is alterable such that at least a duration of time allotted for a non- completed electronic activity included in the personal learning stream is automatically modified based at least on the change of the proficiency data; and
h) automatically repeating to develop a user specific personal learning stream for the each of the plurality of users.
Copending US Application No. 14/636,604 appears to be silent on but Packard, which relates to “producing and delivering educational material” (¶ 2), teaches or at least suggests based on a predetermined degree of similarity between the related electronic course activities and the primary learning outcome, the related electronic course activities being associated with other electronic courses … (at least ¶ 33: the educational content can be dynamically tailored and/or adapted to a particular student's needs; ¶ 64: … FIG. 3 shows a learning objective record 312' associated with the first subject 310 associated with a learning objective record 312'' associated with the second subject 320. In this manner, educational material directed towards multiple different subjects can be produced, developed, managed and/or revised in a cooperative manner; ¶ 116: a learning module can include adaptive learning paths to tailor the educational material 280 to a student's style of learning, a student's learning capabilities, the student's prior level of understanding and/or the like. In other embodiments, the learning path can be dynamically defined, tailored and/or assembled as a student proceeds through a sequence of measurable learning outcomes; ¶ 137: any number of alternate learning objects and/or assessments can be presented to a student to assist a student in mastering a measurable learning outcome… an adaptive decision point can decide between presenting the course content associated with three or more alternate learning paths to a student. Further, each learning path can include any number of similar and/or different learning objects and/or assessments; ¶ 138: The adaptive decision point 654a can be used to determine which learning path from multiple learning paths 602a, 602b should be presented to a particular student… an adaptive decision point 654a contains references and/or logic that determines which learning path should be presented to the student… the adaptive decision point 654a can use one or more criteria in conjunction with the logic to determine which learning path 602a, 602b should be presented to the student… a first learning path can be a remedial learning path and a second path can be an advanced learning path. If a student performs above a first threshold on an assessment (e.g., assessment 652') the adaptive decision point 654a can determine that the course content associated with the advanced learning path (e.g., learning path 602a) can be presented to the student. If the student performs below a second threshold on the assessment, the adaptive decision point 654a can determine that the course content associated with the remedial learning path (e.g., learning path 602b) can be presented to the student. If the student performs between the first threshold and the second threshold, the course content associated with a standard learning path (not shown in FIG. 6) can be presented to the student). Hence, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the invention, to have incorporated the adaptive decision point feature of Packard and modify US Application No. 14/636,604 as claimed because this would amount to no more than applying known techniques to achieve predictable results. Namely, this modification would allow determining which learning path from multiple learning paths should be presented to a particular student to assist the particular student in mastering a measurable learning outcome (Packard: ¶¶ 137, 138).
US Application No. 14/636,604 in view of Packard appears to be silent on d) collating, via the learning management system, a plurality of similar learning activities from a plurality of other courses associated with the user, having a degree of similarity above a predetermined threshold, wherein the pacing guide is further determined by … similar learning activities of at least one other course with the degree of similarity above a predetermined threshold. However, the concept and advantages of recommending content based on a degree of similarity above a predetermined threshold is old and well-known, as evident in Dugas (at least ¶ 5: a method for locating recommended learning materials may include one or more steps of building a profile associated with each student … assigning a score to each profile associated with the student based on a similarity between the one or more personal attributes identifying the student and the one or more personal attributes identifying a target student, wherein the target student is a student for whom the learning materials are sought; determining a peer group based on a threshold score, wherein the profiles having a score above the threshold score constitute students within the peer group of the target student, wherein the threshold score represents a similarity between the profiles of the students and the target student; and/or identifying the learning materials accessed by students within the peer group; 11; ¶¶ 20, 21: the learning materials accessed by the recommended students may constitute the recommended learning). recommending content based on a degree of similarity above a predetermined threshold). It would have been obvious to one of ordinary skill in the art, before the effective filing date of the invention to have used the recommending content based on a degree of similarity above a predetermined threshold feature of Dugas and to have modified US Application No. 14/636,604 in view of Packard as claimed because this would amount to no more than applying known techniques to a known method (product, or device) ready for improvement to yield predictable results. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007) (“The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results.”).
US Application No. 14/636,604 in view of Packard and Dugas appears to be silent on but Cheng teaches or at least suggests the pacing guide is updated on an improvement to the user's learning proficiency; and g) automatically repeating to develop a user specific personal learning stream for the each of the plurality of users (at least ¶ 13: Continuously adapting to the student …; ¶ 19: … tracks student-user performance in real time…; ¶ 22: adaptive system that takes in information and reacts to the specific information given to it, using a set of predefined heuristics; ¶ 23: there is provided, based on a curriculum chart with correlation coefficients and prerequisite information, unlimited curriculum paths that respond to students' different learning patterns and pace. Topics are connected with each other based on pre-requisite/post-requisite relationship thus creating a complex 3-D curriculum web; ¶ 25: a high level of personalization, continuous programs accessible anytime and anywhere, real-time performance tracking systems that allow users, e.g., parents to track progress information online, a relational curriculum, enabling individualized paths from question to question and from topic to topic, worldwide comparison mechanisms that allow parents to compare child performance against peers in other locations; ¶ 35: a comprehensive curriculum map that outlines relational correlations between distinct base-level categories of mathematical topics, concepts and skill sets; ¶ 36: generates an individually tailored curriculum for each user, which is a result of the user's unique progression through the curriculum map, and is dynamically determined in response to the user's ongoing performance and proficiency measurements within each mathematical topic category; ¶ 37: … Each category object also maintains a Student-user Proficiency Level measurement that continually indicates each user's demonstrated performance level in that particular category. …; ¶ 42: If a user's Proficiency Level in a particular bucket reaches a high enough level, the student-user then qualifies to begin learning about content and attempting questions from the "next" category bucket defined on the curriculum map. These upper and lower Proficiency Threshold Levels determine transitional events between buckets and facilitate the development of a user's personalized progression rate and traversal paths through the various conceptual categories on the curriculum map; ¶ 97: Automatically create curriculum pacing charts tailored to the student body to be taught and driven by the past performance of the class of students). Hence, it would have been prima facie obvious to one of ordinary skill in the art, before the effective filing date of the invention, to have used Cheng’s dynamically determined curriculum map and modified copending US Application No. 14/636,604 in view of Packard and Dugas as claimed because this would amount to no more than applying known techniques to a known method (device, or product) ready for improvement to yield predictable results. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007) (“The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results.”).
US Application No. 14/636,604 in view of Packard, Dugas and Cheng appears to be silent on but Ferriol teaches or at least suggests and wherein a duration of time allotted for the pacing guide activities is determined by a grade-weight of the primary electronic course activity (at least (¶ 20: provide optimal schedule of reviews of each item based on a minimum level of learning or retention while preventing a user from going below a minimum level of memory performance for each item, accurately control the time required to reach a goal level of learning and the speed with which the goal level of learning is reached). Hence, it would have been prima facie obvious to one of ordinary skill in the art, before the effective filing date of the invention, to have used Ferriol’s optimal schedule feature and modified copending US Application No. 14/636,604 in view of Packard, Dugas and Cheng as claimed because this would amount to no more than applying known techniques to a known method (device, or product) ready for improvement to yield predictable results. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007) (“The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results.”).
Dependent claims 2-9 and 13-20 stand rejected as being dependent
upon rejected base claims.
This is a provisional obviousness-type double patenting rejection because the
conflicting claims have not in fact been patented.
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 1-9 and 12-20 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.
Independent claims 1 and 12 recites an abstract idea of a teacher creating an educational course for a student which falls within the “Mental Processes” and “Certain Method of Organizing Human Activity” groupings of abstract ideas subject to the 2019 Revised Patent Subject Matter Eligibility Guidance1. Specifically, the claims recite the steps shown below, annotated to recite the corresponding abstract mental process and/or instance of managing teaching interactions between people:
a method for collating electronic course activities from a plurality of electronic courses into an adjustable personal learning stream for each of a plurality of users that is associated with a learning management system, comprising:
a) selecting, on a client device associated with at least one user of the plurality of users, data associated with a primary electronic course activity for a primary electronic course within the plurality of electronic courses, wherein the plurality of electronic courses are stored in connection with the learning management system, the user is associated with the primary electronic course, and the primary electronic course activity is an electronic learning activity to be completed by the user in connection with the primary electronic course;
b) selecting, on the client device, data associated with a primary learning outcome for the primary electronic course activity;
c) determining related electronic course activities that are associated with a learning outcome related to the primary learning outcome based on a predetermined degree of similarity between the related electronic course activities and the primary learning outcome, the related electronic course activities being associated with other electronic courses within the plurality of electronic courses, wherein the related electronic course activities that are associated with the learning outcome related to the primary learning outcome are determined based at least in part on the learning outcome associated with the related electronic course activities and the primary learning outcome;
d) collating, via the learning management system, a plurality of similar learning activities from a plurality of other courses associated with the user, having a degree of similarity above a predetermined threshold;
e) generating, by the learning management system, the personal learning stream associated with the user and an electronic pacing guide, wherein the pacing guide is determined by: course activities and the related electronic course activities, the user's learner proficiency with respect to the primary learning outcome, similar learning activities of at least one other course with the degree of similarity above a predetermined threshold; grade-weights of the one or more course activities, and a proximity of the one or more course activities to other activities, wherein the personal learning stream is electronic content that is deliverable to the user via an electronic device, wherein the personal learning stream is stored on a computer-readable storage medium, and wherein the electronic pacing guide is derived from at least one pacing activity associated with the primary learning outcome and the pacing guide is updated on an improvement to the user's learning proficiency and wherein a duration of time allotted for the pacing guide activities is determined by a grade-weight of the primary electronic course activity;
f) including the primary electronic course activity and related electronic course activities into the personal learning stream associated with the user;
g) providing, by the learning management system, the personal learning stream to the client device associated with the user via a network, wherein the personal learning stream is dynamically updatable based on changing proficiency data, recorded electronic activities or pacing data associated with the user, wherein the proficiency data for the user is updatable upon completion of at least one of the electronic course activities, and wherein upon detection of a change of the proficiency data the personal learning stream is alterable such that at least a duration of time allotted for a non- completed electronic activity included in the personal learning stream is automatically modified based at least on the change of the proficiency data; and
h) automatically repeating to develop a user specific personal learning stream for the each of the plurality of users.
The instant claims as recited, in a broadest reasonable interpretation, capture the abstract ideas of (1) managing teaching interactions of a human teacher assembling course activities for each of a plurality of students, and (2) the mental process the human teacher takes to determine suitable course activities for the each of a plurality of students based on teacher desired factors (i.e., performance/proficiency level). Providing educational content to a human student, including changing the scope of the content to address performance of the human student is a function commonly performed by human teachers. The published specification discloses: ¶ 57: a particular chapter of “Fundamentals of Anatomy and Physiology” may be assigned by an instructor as required reading in conjunction with a particular test or assignment; ¶ 58: supplemental resources may include resources suggested by a course instructor … resources provided by a third-party tutor. It is apparent that, other than reciting a “learning management system”, a “client device”, “electronic device”, a “computer-readable storage medium”, a “network”, and a “display” (claim 12) and “at least one processor” (claim 12) to perform the cited steps, nothing in the claims as drafted precludes the steps above from reasonably and reliably being performed in the mind and/or as conventionally performed in a pre-computer age implementation. If a claim limitation, under its broadest reasonable interpretation, covers performance of the limitation in the mind, and/or a certain method of managing interactions between people but for the recitation of generic computer components, then it falls within the “Mental Processes” and “Certain Method of Organizing Human Activity” groupings of abstract ideas, respectively. Accordingly, the claims recite one or more abstract idea(s) under Step 2A: Prong One. (Step 2A – Prong 1: YES).
The Judicial Exception(s) is/are not integrated into a practical application. In particular, the claim recites the use of a generic computer components including the “learning management system”, “client device”, “electronic device”, “computer-readable storage medium”, “network”, “display” (claim 12) and “at least one processor” (claim 12) to perform the claimed invention. These components are recited at a high-level of generality (e.g., a generic computer to perform the claimed steps) such that it amounts to no more than mere instructions to apply the exception using a generic computer component under MPEP §2106.05(f)&(h). See published Specification (for example, ¶ 3: use of electronic learning materials (e.g. handouts, textbooks, etc.), web-casting of live or recorded lectures, interaction through virtual chat-rooms or discussion boards, and performing web-based presentation; ¶ 28: … it will be understood by those of ordinary skill in the art that the embodiments described herein may be practiced without these specific details. In other instances, well-known methods, procedures and components have not been described in detail so as not to obscure the embodiments described herein…; ¶ 29: … programmable computers may be a mainframe computer, server, personal computer, laptop, personal data assistant, or cellular telephone …; ¶ 30: … computer programs executing on programmable computers each comprising at least one processor, a data storage system (including volatile and non-volatile memory and/or storage elements), at least one input device, and at least one output device… the programmable computers may be a mainframe computer, server, personal computer, laptop, personal data assistant, or cellular telephone… output information is applied to one or more output devices, in known fashion; Figure 1 and associated text; ¶ 35: … using any suitable computing device. For example, the user 112 may use a computing device 120 such as a desktop computer that has at least one input device (e.g. a keyboard and a mouse) and at least one output device (e.g. a display screen and speakers). The computing device 120 can generally be any other suitable device for facilitating communication between the users 112, 114 and the educational service provider 130. For example, the computing device 120 could be a laptop 120a wirelessly coupled to an access point 122 (e.g. a wireless router, a cellular communications tower, etc.), a wirelessly-enabled personal data smart phone 120b or table 120d, or a terminal 120c over a wired connection 123; ¶ 36: communication…using any suitable computing device…such as a desktop computer that has at least one input device (e.g. a keyboard and a mouse) and at least one output device (e.g. a display screen and speakers). The computing device 120 can generally be any other suitable device for facilitating communication between the users 15 112, 114 and the educational service provider 130… the computing device 120 could be a laptop 120a wirelessly coupled to an access point 122 (e.g. a wireless router, a cellular communications tower, etc.), a wirelessly-enabled personal data smart phone 120b or table 120d, or a terminal 120c over a wired connection 123; ¶ 37: communicate…over a local area network (LAN) or intranet, or using an external network (e.g. by using a browser on the computing device 120 to browse to one or more web pages presented over the Internet 128); ¶ 39: user 114 may use a laptop 120a to browse to a webpage that displays elements of an electronic learning system…; ¶ 40: The educational service provider 130 also generally includes one or more data storage devices 134 that are in communication with the processing devices 132 (e.g. servers), and could include a relational database, file system, or any other suitable data storage device …; ¶ 41: one or more data storage devices 134… or any other suitable data storage device.). The lack of details about the “learning management system”, “client device”, “electronic device”, “computer-readable storage medium”, “network”, “display” (claim 12) and “at least one processor” (claim 12) indicates that the additional elements are generic, or part of generic computer elements performing or being used in performing the generic functions claimed. The use of the provision of electronic content streamed over a network between the learning management system and client device is merely a field of use recitation under MPEP §2106.05(h), and likewise for the storage of data within the computer and provision of a graphical interface. Moreover, these generic, additional elements thus do not integrate the abstract idea into a practical application because they does not impose any meaningful limits on practicing the abstract idea under MPEP §2106.05(b)(c)&(e). The claims are not limited to a particular machine under MPEP §2106.05(b) as (1) the claimed client computer is an off the shelf processor and display as in Bilski v. Kappos2, and (2) the networked connection and streaming of electronic content is conventional in the art. The claims do not transform the computer components into a different state in view of the requirements of MPEP §2106.05(c) and there are no meaningful limitations defined under MPEP §2106.05(e) that apply to the instant claims. Additionally, these additional elements fail to provide an improvement to the technical field of providing customized courses to students under MPEP §2106.05(a) as they merely recite the generic use of a computer as a tool to automate existing mental and human operated practices. The claims merely recite the generic practice of the judicial exception on an off the shelf computer (perhaps connected to a server via a network) which fails to differentiate the claims from mere automation. Moreover, Claim 1 fails to require a computer to perform several of the claimed steps altogether. Any technical features implemented in the creation of the customized courses described in the specification is devoid from the claim language. The claimed adjustment of content based on user input is similarly practiced in the underlying abstract idea and is seen as further use of the computer as a tool. Viewed as a whole, the additional limitation in the present claims are seen more as a drafting effort toward eligibility than any meaningful employed elements that confine the claims. Accordingly, the claims are directed to an abstract idea under Step 2A: Prong Two. (Step 2A, Prong 2: NO).
The claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception(s) to which they are directed. The independent claims do no more than call on a method with basic functionality for using a computer to perform course activity selection processes, devoid of any inventive concepts. The additional elements in the claims, when taken alone and in ordered combination, are not sufficient to amount to significantly more than the judicial exception because the additional elements or combination of elements in the claims other than the abstract idea per se amount to no more than: requiring no more than a generic computer to perform generic computer functions that are well-understood, routine and conventional activities previously known to the industry under MPEP §2106.05(d) or reciting mere insignificant post-solution activity under MPEP §2106.05(g).
For example, claim 12, which has explicit, additional limitations when compared to claim 1, merely recites "a display", “an electronic device”, and “at least one processor operatively coupled to the display, the at least one processor configured for” performing the claimed invention, which is recited as pertaining to a generic purpose computer as per MPEP§2106.05(d)(II)(i-iv), particularly TLI Communications LLC v. AV Auto. LLC3 and OIP Techs., Inc., v. Amazon.com, Inc.4, along with the generic descriptions in the published Specification, ¶¶ 3, 28, 29, 30, 35, 36, 37, 39, 40, 41, which rely on the conventional nature of the devices for written description support under §112(a). The claimed client device that receives and selects streamed electronic course data over a network is a ubiquitous technology in the modern era as per the discussions of generic networked devices in TLI Communications LLC v. AV Auto. LLC, OIP Techs., Inc., v. Amazon.com, Inc., and Apple, Inc. v. Ameranth, Inc.5, officially noted by the examiner, and per ¶¶ 54, 55, 75-93 which describes a personal learning stream not as a continual broadcast of data content but merely a progression of learning content items in an abstract arrangement and how such component is not necessarily a technical stream. The claimed storage of the personal learning stream in a computer-readable storage medium is seen conventional as per Versata Dev. Group, Inc. v. SAP Am., Inc., and OIP Techs. The claimed display of the data via a user interface is deemed conventional as per Ameranth, and based on the description in ¶¶ 3, 11, 12, 13, 28, 29, 30, 35, 36, 37, 39, 40, 41, 101 of the specification which relies upon the well-known nature of the calendar display for proper written description support, and admitted as conventional by applicant. Furthermore, to the extent to which the application claims that the processor performs the claims steps and dynamically updates the stream content represents using the computer for its base functions, deemed conventional in Bancorp Services v. Sun Life and mere use of a computer as an automation tool under MPEP §2106.05(f).6 Additionally, the provision of the outputted activity stream to a client device may also be deemed insignificant extra solution activity under MPEP §2106.05(g). The general digital content adjustment based on user input is deemed conventional as per Ultramercial7, Ameranth, and Alice Corp8, among others. The Specification provides further evidence of the conventional nature of the recited “learning management system”, “client device”, “electronic device”, “computer-readable storage medium”, “network”, “display”, and at least one processor (for example, figure 1 and associated text, ¶¶ 3, 28, 29, 30, 35, 36, 37, 39, 40, 41). This indicates that the additional elements are sufficiently well-known that the specification does not need to describe the particulars of such additional elements to satisfy 35 U.S.C. § 112(a). See MPEP 2106.05(d), as modified by the USPTO Berkheimer Memorandum. Hence, the additional elements are generic, well-known, and conventional computing elements. The use of the additional element(s) either alone or in combination amounts to no more than mere instructions to apply the judicial exception using generic computer components. Mere instructions to apply an exception using generic computer components cannot provide an inventive concept, and thus the claim is patent ineligible. (Step 2B: NO).
All dependent claims have been analyzed and do not cure the deficiencies of the independent claims. For further exemplification of the dependent claims, which are provided merely to ensure applicant may provide a sufficient and well-informed response, claims 2-7 simply further define how content is inserted into the activity stream which does not differentiate from the human/mental analog, claims 8 and 9 simply provide generic data processing, display, and storage furthermore consistent with the abstract ideas identified in Ameranth and Versata Dev. Group, Inc. v. SAP Am., Inc.9. Sister dependent claims in independent claim 12 recite similar features that are treated accordingly. These further limitations do not amount to significantly more than the monopolization of the aforementioned judicial exception and are thus rejected.
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.
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1-5, 7-9, 12-16, and 18-20 are rejected under 35 U.S.C. 103 as being unpatentable over Packard et al. (US Pub. 2011/0039249 A1) (Packard) in view of Bamhart (US 8879978 B1), Dugas (US 20130085955 A1), Cheng et al. (US 20080286737 A1) (Cheng) and further in view of Ferriol et al. (US 20030129574 A1) (Ferriol).
In re Claim 1, Packard teaches or at least suggests a method for collating electronic course activities from a plurality of electronic courses into an adjustable personal learning stream for each of a plurality of users that is associated with a learning management system (at least ¶ 33–39, ¶ 263–267 and Figure 21, wherein a user via device (850) receives a tailored course from a learning management system on Host Device (820) via the course collating method described in Figure 11, ¶ 124, and shown in Figure 5. Wherein multiple learning outcomes and their associated learning activities are combined together to form a course in Figure 5. See ¶ 117 wherein the electronic course content is taken from content used in other courses. See also ¶¶ 116-130 for a more detailed overview), comprising:
a) selecting, on a client device associated with the at least one user of the plurality of users, data associated with a primary electronic course activity for a primary electronic course within the plurality of electronic courses, wherein the plurality of electronic courses are stored in connection with the learning management system, the user is associated with the primary electronic course (at least ¶¶ 117-130, wherein the system selects a learning object (activity/module in ¶ 98) associated with a learning objective record 312 in Figure 3 for the custom course that the user will take. Wherein the user client device selects this the primary course activity in 255-267 via a web browser interface for completion while taking the course. Wherein ¶ 068, 98-101 and 118 the learning object is an electronic learning activity. Wherein, the user completing the course progresses through learning activities to complete the learning objectives as shown in Figure 5. Additionally, see where the course is stored in the learning system in host device (820) in Figure 21 along with other courses as described in ¶ 117. See also 116, 143, 160-165 wherein the student chooses a learning activity via the learning path and the course learning path is tailored and assembled as the student moves through the course dynamically. See also 32 wherein a student selects answers for an assessment learning activity wherein the answers are associated various learning objectives and used to determine a suitable course for the student. See also Figures 10, 11, 15, 59, 114, 115, etc.),
and the primary electronic course activity is an electronic learning activity to be completed by the user in connection with the primary electronic course (at least ¶ 68, wherein the learning objectives (312) completed by a user comprise learning activities that the user must complete to progress in the course. See also ¶¶ 117-130 and Figure 5 as described above);
b) selecting, on the client device, data associated with a primary learning outcome for the primary electronic course activity (at least at ¶¶ 255-267 wherein upon the client device selecting the primary electronic course activity and performing the activity the client device is also selecting data associated with a primary learning outcome associated with the course activity. At least at ¶ 68 wherein the system selects this measureable learning outcome associated with the primary course activity (the “learning object”), Wherein this learning outcome is selected for use in finding similar learning outcomes in the example in ¶¶ 117-130. See also ¶¶ 116, 143, 160-165 wherein the student chooses a learning activity associated with a learning objective via the learning path and the course learning path is tailored and assembled as the student moves through the course dynamically. See also, wherein selecting answers for questions in an assessment activity is also selecting performance data associated with the learning outcomes those questions);
c) determining related electronic course activities that are associated with a learning outcome related to the primary learning outcome based on a predetermined degree of similarity between the related electronic course activities and the primary learning outcome, the related electronic course activities being associated with other electronic courses within the plurality of electronic courses, wherein the related electronic course activities that are associated with the learning outcome related to the primary learning outcome are determined based at least in part on the learning outcome associated with the related electronic course activities and the primary learning outcome (at least ¶ 33: he educational content can be dynamically tailored and/or adapted to a particular student's needs; ¶ 64: … FIG. 3 shows a learning objective record 312' associated with the first subject 310 associated with a learning objective record 312'' associated with the second subject 320. In this manner, educational material directed towards multiple different subjects can be produced, developed, managed and/or revised in a cooperative manner; ¶¶ 75, 117, 118 wherein the system selects other learning modules (which including activities in ¶ 103) from other courses which have activities that share a similar, linked, and/or common learning objective as a course activity within the course to add to the course. Wherein the example is provided that two modules which both share activities associated with the topic of fractions, although different aspects of addition and subtraction, are related enough to be collated together within a learning sequence as a unit; ¶ 116: a learning module can include adaptive learning paths to tailor the educational material 280 to a student's style of learning, a student's learning capabilities, the student's prior level of understanding and/or the like. In other embodiments, the learning path can be dynamically defined, tailored and/or assembled as a student proceeds through a sequence of measurable learning outcomes; ¶ 137: any number of alternate learning objects and/or assessments can be presented to a student to assist a student in mastering a measurable learning outcome… an adaptive decision point can decide between presenting the course content associated with three or more alternate learning paths to a student. Further, each learning path can include any number of similar and/or different learning objects and/or assessments; ¶ 138: The adaptive decision point 654a can be used to determine which learning path from multiple learning paths 602a, 602b should be presented to a particular student… an adaptive decision point 654a contains references and/or logic that determines which learning path should be presented to the student… the adaptive decision point 654a can use one or more criteria in conjunction with the logic to determine which learning path 602a, 602b should be presented to the student… a first learning path can be a remedial learning path and a second path can be an advanced learning path. If a student performs above a first threshold on an assessment (e.g., assessment 652') the adaptive decision point 654a can determine that the course content associated with the advanced learning path (e.g., learning path 602a) can be presented to the student. See also ¶¶ 67, 120, among others), wherein determining the related course activities includes determining a degree of similarity between the related course activities and the primary learning outcome, and excluding a set of course activities, within the related course activities, under a predetermined degree of similarity to the primary learning outcome (at least ¶ 137: any number of alternate learning objects and/or assessments can be presented to a student to assist a student in mastering a measurable learning outcome… an adaptive decision point can decide between presenting the course content associated with three or more alternate learning paths to a student. Further, each learning path can include any number of similar and/or different learning objects and/or assessments; ¶ 138: The adaptive decision point 654a can be used to determine which learning path from multiple learning paths 602a, 602b should be presented to a particular student… an adaptive decision point 654a contains references and/or logic that determines which learning path should be presented to the student… the adaptive decision point 654a can use one or more criteria in conjunction with the logic to determine which learning path 602a, 602b should be presented to the student… a first learning path can be a remedial learning path and a second path can be an advanced learning path. If a student performs above a first threshold on an assessment (e.g., assessment 652') the adaptive decision point 654a can determine that the course content associated with the advanced learning path (e.g., learning path 602a) can be presented to the student. If the student performs below a second threshold on the assessment, the adaptive decision point 654a can determine that the course content associated with the remedial learning path (e.g., learning path 602b) can be presented to the student. If the student performs between the first threshold and the second threshold, the course content associated with a standard learning path (not shown in FIG. 6) can be presented to the student).
Packard appears to be silent on but Dugas, which relates to locating and managing learning activities (at least ¶¶ 5, 20), teaches or at least suggests d) collating, via the learning management system, a plurality of similar learning activities from a plurality of other courses associated with the user, having a degree of similarity above a predetermined threshold, wherein the pacing guide is further determined by … similar learning activities of at least one other course with the degree of similarity above a predetermined threshold. However, the concept and advantages of recommending content based on a degree of similarity above a predetermined threshold is old and well-known, as evident in Dugas (at least ¶ 5: a method for locating recommended learning materials may include one or more steps of building a profile associated with each student … assigning a score to each profile associated with the student based on a similarity between the one or more personal attributes identifying the student and the one or more personal attributes identifying a target student, wherein the target student is a student for whom the learning materials are sought; determining a peer group based on a threshold score, wherein the profiles having a score above the threshold score constitute students within the peer group of the target student, wherein the threshold score represents a similarity between the profiles of the students and the target student; and/or identifying the learning materials accessed by students within the peer group; 11; ¶¶ 20, 21: the learning materials accessed by the recommended students may constitute the recommended learning). recommending content based on a degree of similarity above a predetermined threshold). It would have been obvious to one of ordinary skill in the art, before the effective filing date of the invention to have used the recommending content based on a degree of similarity above a predetermined threshold feature of Dugas and to have modified Packard as claimed because this would amount to no more than applying known techniques to a known method (product, or device) ready for improvement to yield predictable results. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007) (“The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results.”).
Packard in view of Dugas teaches or at least suggests e) generating, by the learning management system, the personal learning stream associated with the user and an electronic pacing guide, wherein the pacing guide is determined by: course activities and related electronic course activities, wherein the personal learning stream is electronic content that is deliverable to the user via an electronic device, wherein the personal learning stream is stored on a computer-readable storage medium, and wherein the electronic pacing guide is derived from at least one pacing activity associated with the primary learning outcome (at least Packard: at Figure 5, wherein a learning objective sequence (502) represents the sequences of courses elements 510, 520, 530, and 540 in ¶ 70 and ¶¶ 124 -130 created for the user. See at least in 121, wherein this course is tailored to a particular student. Wherein the learning stream is stored within memory of the system and is delivered to the user’s client device in Figure 21, 1, 266, etc.. See also temporal content 570 in Figure 11 and ¶¶ 165, 166 “temporal content can be […] a learning object that presents a multi-media explanation…” and Figure 14 element 1166 ¶ 184. Wherein this content is merged into the course the user is completing).
Packard in view of Dugas appears to be silent on but Bamhart, which relates to techniques to determine sequences for educational units (abstract), teaches or at least suggests e) generating, by the learning management system, the personal learning stream associated with the user and an electronic pacing guide, wherein the pacing guide is determined by: course activities and the related electronic course activities, the user's learner proficiency with respect to the primary learning outcome, similar learning activities of at least one other course with the degree of similarity above a predetermined threshold (at least col 5, line 55 - col 6, lines 4-23 and 36-38: each of one or more topics can be linked to a curriculum, such as a course, instructor and/or grade level. Each of one or more topics can be associated with one or more pre-requisites, identifying a topic that is to be mastered (e.g., according to a global mastery criterion or one tied to the specific topic) before the topic at issue is to be presented…a current topic weight can depend on a time and/or a particular learner (e.g., and her topic masteries…Each available topic can then be associated with a current learner-specific weight. This weight can depend on overall weights, users' ties to various curriculums, a relative or absolute time (e.g., time point within a course schedule) and/or masteries (or current performances) of the learner… The assigned weights and/or available topics can depend on a particular user's performance on assessment and/or mastery of topics; col 9, line 61 – col 10, line 3: FIG. 5 illustrates a learner-specific topic ring identifying available topics. Each circle represents a topic. The circles along the ring represent those that are available to a learner. A set of leafs extend from the leaf. Each leaf corresponds to a topic area. Within a leaf, a first topic in the leaf that is more proximate to the ring is to be made available to a learner before a second topic in the leaf further from the ring. For example, a more central topic may be a pre-requisite for a more distal topic).
Thus, it would have been obvious for an individual having ordinary skill in the art at the time the invention was effectively filed to have modified the invention as disclosed by Packard in view of Dugas to generate the personal learning stream associated with the user and an electronic pacing guide based on one or more course activities as claimed and as taught by Bamhart, for the purpose of determining proper sequences for presentation of educational content objects.
Packard in view of Dugas and Bamhart teaches or at least suggests f) including the primary electronic course activity and related electronic course activities into the personal learning stream associated with the user (at least Packard: at Figure 5, wherein elements 510-540 are each associated with a learning objective record 312 from the learning objective database. Those learning objective records are composed of learning objects that are course activities. Wherein, for example, 510 may be associated with a primary course activity and 520 530 and 540 other course activities. See also Figure 11 and ¶¶ 117-121 and Figure 12 wherein the content is configured to a particular user and can be linked by units); and
g) providing by the learning management system, the personal learning stream to the client device associated with the user via a network (at least Packard: at Figure 21, and ¶¶ 260 – 267 wherein the educational content is provided from host (820) to client device (850) via network (870). at least at 188, 233, 264, etc. wherein the user may view the learning content associated with the personal learning stream on their client device), wherein the personal learning stream is dynamically updatable based on changing proficiency data, recorded electronic activities or pacing data associated with the user (at least Packard: at ¶ 138-142, and Figure 6, wherein when advancing through the course, multiple learning paths are available, wherein the particular path content provided is based at least in part on the user’s performance on various assessments, including their proficiency levels, time taken on assignments, previously completed assessments, or the like. See also 139-142, etc. for other examples), wherein the proficiency data for the user is updatable upon completion of at least one of the electronic course activities (at least Packard: at 138-142 wherein course activities include assessments that update the user’s proficiency data), […].
Packard in view of Dugas and Bamhart appears to be silent on but Cheng teaches or at least suggests the pacing guide is updated on an improvement to the user's learning proficiency; wherein the personal earning stream is dynamically updatable based on changing proficiency data, recorded electronic activities or pacing data associated with the user, wherein the proficiency data for the user is updatable upon completion of at least one of the electronic course activities, and wherein upon detection of a change of the proficiency data the personal learning stream is alterable such that at least a duration of time allotted for a non- completed electronic activity included in the personal learning stream is automatically modified based at least on the change of the proficiency data; and g) automatically repeating to develop a user specific personal learning stream for the each of the plurality of users (at least ¶ 13: Continuously adapting to the student …; ¶ 19: … tracks student-user performance in real time…; ¶ 22: adaptive system that takes in information and reacts to the specific information given to it, using a set of predefined heuristics; ¶ 23: there is provided, based on a curriculum chart with correlation coefficients and prerequisite information, unlimited curriculum paths that respond to students' different learning patterns and pace. Topics are connected with each other based on pre-requisite/post-requisite relationship thus creating a complex 3-D curriculum web; ¶ 25: a high level of personalization, continuous programs accessible anytime and anywhere, real-time performance tracking systems that allow users, e.g., parents to track progress information online, a relational curriculum, enabling individualized paths from question to question and from topic to topic, worldwide comparison mechanisms that allow parents to compare child performance against peers in other locations; ¶ 35: a comprehensive curriculum map that outlines relational correlations between distinct base-level categories of mathematical topics, concepts and skill sets; ¶ 36: generates an individually tailored curriculum for each user, which is a result of the user's unique progression through the curriculum map, and is dynamically determined in response to the user's ongoing performance and proficiency measurements within each mathematical topic category; ¶ 37: … Each category object also maintains a Student-user Proficiency Level measurement that continually indicates each user's demonstrated performance level in that particular category. …; ¶ 42: If a user's Proficiency Level in a particular bucket reaches a high enough level, the student-user then qualifies to begin learning about content and attempting questions from the "next" category bucket defined on the curriculum map; ¶ 97: Automatically create curriculum pacing charts tailored to the student body to be taught and driven by the past performance of the class of students). Hence, it would have been prima facie obvious to one of ordinary skill in the art, before the effective filing date of the invention, to have used Cheng’s dynamically determined curriculum map and modified Packard in view of Dugas and Bamhart as claimed because this would amount to no more than applying known techniques to a known method (device, or product) ready for improvement to yield predictable results. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007) (“The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results.”). In particular, this modification would predictably enable users to spend an appropriate amount of time to understand content they are studying based upon their ability for the benefit of increasing the chances that the user fully comprehend the subject matter in only as much time as they need.
Packard in view of Dugas, Bamhart and Cheng appears to be silent on but Ferriol teaches or at least suggests wherein a duration of time allotted for the pacing guide activities is determined by a grade-weight of the primary electronic course activity (at least (¶ 20: provide optimal schedule of reviews of each item based on a minimum level of learning or retention while preventing a user from going below a minimum level of memory performance for each item, accurately control the time required to reach a goal level of learning and the speed with which the goal level of learning is reached). Hence, it would have been prima facie obvious to one of ordinary skill in the art, before the effective filing date of the invention, to have used Ferriol’s optimal schedule feature and modified Packard in view of Dugas, Bamhart and Cheng as claimed because this would amount to no more than applying known techniques to a known method (device, or product) ready for improvement to yield predictable results. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007) (“The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results.”).
In re Claim 2, the previous combination of Packard in view of Dugas, Bamhart, Cheng and Ferriol as applied to claim 1 discloses the claimed invention as shown above. Packard further discloses: merging the electronic pacing guide with the personal learning stream (at least Packard: at ¶ 36 “An educational material including the content associated with each learning objective from the plurality of learning objectives and the temporal content is produced. The content and the temporal content are arranged to define at least one learning path within the learning objective sequence.” and Figures 11-14 and ¶ 184).
In re Claim 3, the previous combination of Packard in view of Dugas, Bamhart, Cheng and Ferriol as applied to claim 2 discloses the claimed invention as shown above but fails to explicitly disclose: wherein no related electronic course activities are identified and no related electronic course activities are joined with the primary electronic course activity into the activity stream.
However, Packard teaches that other course activities are identified and joined with the primary course activity into the activity stream based on the other course activities sharing a similar learning objective as the primary learning activity (at least at ¶ 75 “Because the course content is associated with and/or linked to the learning objective records 312, the CMS 140 can sequence, assemble and/or put together the course content in an organized fashion based on the associations between the set of learning objective records 312.” Where other course activities are learning objects associated with other learning objective records 312 in Figure 3 and ¶ 68 which are stored in learning objectives database 240).
Thus, it would have been obvious for an individual having ordinary skill in the art at the time the invention was effectively filed to have modified the invention as disclosed by Packard to (when no related courses which have learning objectives related to the primary learning activity are stored in the learning objectives database—which may be common) not identify other course activities and not join the other course activities with the primary course activity into an activity stream for the purpose of not providing activities that are not related to the primary learning activity for the benefit of “ensuring that educational material complies with […] learning objectives” (¶ 5).
In re Claim 4, the previous combination of Packard in view of Dugas, Bamhart, Cheng and Ferriol as applied to claim 2 discloses the claimed invention as shown above. Packard further discloses: wherein at least one of: a number of pacing activities (at least at “adding […] the temporal content into the educational material” in ¶ 181 and “for example, a summative assessment can be temporally placed within the educational material based on a student's past performance” in ¶ 176);
a duration of time allotted for the pacing activities (at least at “a student who narrowly passed an assessment can receive a more extensive review at a different point in time than that received by a student who received a high score on the assessment” in ¶ 176); and,
a period of the electronic pacing guide (at least at the addition, positioning and/or placing in ¶ 181 which inherently effects the period of the pacing guide);
is determined by a learner proficiency score associated with the primary learning outcome (at least at ¶ 176 and ¶ 181 “a score received by a student on an assessment” determines if and when and what kind of an assessment will be given to a student).
In re Claim 5, the previous combination of Packard in view of Dugas, Bamhart, Cheng and Ferriol as applied to claim 4 discloses the claimed invention as shown above. Packard further discloses: wherein at least one of:
the number of pacing activities (at least at “adding […] the temporal content into the educational material” in ¶ 181 and “for example, a summative assessment can be temporally placed within the educational material based on a student's past performance” in ¶ 176);
the duration of time allotted for the pacing activities (at least at “a student who narrowly passed an assessment can receive a more extensive review at a different point in time than that received by a student who received a high score on the assessment” in ¶ 176); and,
the period of the electronic pacing guide (at least at the addition, positioning and/or placing in ¶ 181 which inherently effects the period of the pacing guide);
is determined proportionally to the learner proficiency score associated with the primary learning outcome (at least at ¶ 138-140, 176 and ¶ 181 “a score received by a student on an assessment” determines if and when and what kind of an assessment will be given to a student).
In re Claim 8, the previous combination of Packard in view of Dugas, Bamhart, Cheng and Ferriol as applied to claim 1 discloses the claimed invention as shown above. Packard further discloses: wherein electronic resources associated with the related electronic course activities are listed together with resources associated with the primary course activity (at least at Figure 12 learning outcomes 530 and 540 where elements for the different learning outcomes may come from assembling learning objects from different courses as described in ¶ 126 to create the learning objective sequence 502 for the personal stream and Figures 5-7 and 11. See also ¶ 117 – 130).
In re Claim 9, the previous combination of Packard in view of Dugas, Bamhart, Cheng and Ferriol as applied to claim 2 discloses the claimed invention as shown above. Packard further discloses: wherein electronic resources associated with the at least one pacing activity are listed together with resources associated with the primary course activity (at least at Figure 12 learning outcomes 530 and 540 where elements for the different learning outcomes may come from assembling learning objects from different courses as described in ¶ 126 to create the learning objective sequence 502 for the activity stream and Figures 5-7 and 11).
In re Claim 12, Packard discloses: an electronic learning system for collating electronic course activities from a plurality of electronic courses into a personal learning stream for a user that is associated with an adjustable learning management system (at least at ¶ 33 – 39, ¶ 263 – 267 and Figure 21, wherein a user via device (850) receives a tailored course from a learning management system on Host Device (820) via the course collating method described in Figure 11, ¶ 124, and shown in Figure 5. Wherein multiple learning outcomes and their associated learning activities are combined together to form a course in Figure 5. See ¶ 117 wherein the course content is taken from content used in other courses. See also ¶ 116-130 for a more detailed overview), the system comprising:
a) a display (at least at Figure 21, Display 856 and 866 in ¶ 263); and,
b) at least one processor operatively coupled to the display (at least at Figure 21, Processor 852 and 862, in ¶ 263) the at least one processor configured for performing steps similar to those of representative claim 1. As a result, claim 12 is rejected similarly to claim 1.
In re Claim 13, the previous combination of Packard in view of Dugas, Bamhart, Cheng and Ferriol as applied to claim 12 discloses the claimed invention as shown above. Packard further discloses:
creating an electronic pacing guide from at least one pacing activity, the at least one pacing activity being associated with the primary learning outcome (at least at temporal content 570 in Figure 11 and ¶¶ 165, 166 “temporal content can be […] a learning object that presents a multi-media explanation…” and Figure 14 element 1166; ¶ 184. Wherein this content is merged into the course the user is completing); and,
merging the pacing guide with the personal learning stream (at least ¶ 36 “An educational material including the content associated with each learning objective from the plurality of learning objectives and the temporal content is produced. The content and the temporal content are arranged to define at least one learning path within the learning objective sequence.” and Figures 11-14 and ¶ 184).
In re Claim 14, the previous combination of Packard in view of Dugas, Bamhart, Cheng and Ferriol as applied to claim 12 discloses the claimed invention as shown above but fails to explicitly disclose: wherein no related electronic course activities are identified and no related course activities are joined with the primary electronic course activity into the activity stream.
However, Packard teaches that other course activities are identified and joined with the primary course activity into the activity stream based on the other course activities sharing a similar learning objective as the primary learning activity (at least ¶ 75 “Because the course content is associated with and/or linked to the learning objective records 312, the CMS 140 can sequence, assemble and/or put together the course content in an organized fashion based on the associations between the set of learning objective records 312.” Where other course activities are learning objects associated with other learning objective records 312 in Figure 3 and ¶ 68 which are stored in learning objectives database 240).
Thus, it would have been obvious for an individual having ordinary skill in the art at the time the invention was effectively filed to have modified the invention as disclosed by Packard in view of Packard in view of Dugas, Bamhart, Cheng and Ferriol to (when no related courses which have learning objectives related to the primary learning activity are stored in the learning objectives database) not identify other course activities and not join the other course activities with the primary course activity into an activity stream for the purpose of not providing activities that are not related to the primary learning activity for the benefit of “ensuring that educational material complies with […] learning objectives” (¶ 5, Packard).
In re Claim 15, the previous combination of Packard in view of Dugas, Bamhart, Cheng and Ferriol as applied to claim 13 discloses the claimed invention as shown above. Packard further discloses: wherein at least one of:
a number of pacing activities (at least “adding […] the temporal content into the educational material” in ¶ 181 and “for example, a summative assessment can be temporally placed within the educational material based on a student's past performance” in ¶ 176);
a duration of time allotted for the pacing activities (at least “a student who narrowly passed an assessment can receive a more extensive review at a different point in time than that received by a student who received a high score on the assessment” in ¶ 176); and,
a period of the electronic pacing guide (at least the addition, positioning and/or placing in ¶ 181 which inherently effects the period of the pacing guide);
is determined by a learner proficiency score associated with the primary learning outcome (at least ¶¶ 138-140, 176 and ¶ 181 “a score received by a student on an assessment” determines if and when and what kind of an assessment will be given to a student).
In re Claim 16, the previous combination of Packard in view of Dugas, Bamhart, Cheng and Ferriol as applied to claim 15 discloses the claimed invention as shown above. Packard further discloses: wherein at least one of:
the number of pacing activities (at least “adding […] the temporal content into the educational material” in ¶ 181 and “for example, a summative assessment can be temporally placed within the educational material based on a student's past performance” in ¶ 176);
the duration of time allotted for the pacing activities (at least “a student who narrowly passed an assessment can receive a more extensive review at a different point in time than that received by a student who received a high score on the assessment” in ¶ 176); and,
the period of the electronic pacing guide (at least the addition, positioning and/or placing in ¶ 181 which inherently effects the period of the pacing guide);
is determined proportionally to the learner proficiency score associated with the primary learning outcome (at least ¶ 176 and ¶ 181 “a score received by a student on an assessment” determines if and when and what kind of an assessment will be given to a student).
In re Claim 19, the previous combination of Packard in view of Dugas, Bamhart, Cheng and Ferriol as applied to claim 12 discloses the claimed invention as shown above. Packard further discloses: wherein electronic resources associated with the related electronic course activities are listed together with electronic resources associated with the primary electronic course activity (at least Figure 12 learning outcomes 530 and 540 where elements for the different learning outcomes may come from assembling learning objects from different courses as described in ¶ 126 to create the learning objective sequence 502 for the activity stream and Figures 5-7 and 11. See also ¶ 117 – 130).
In re Claim 20, the previous combination of Packard in view of Dugas, Bamhart, Cheng and Ferriol as applied to claim 13 discloses the claimed invention as shown above. Packard further discloses: wherein electronic resources associated with the at least one pacing activity are listed together with electronic resources associated with the electronic primary course activity (at least Figure 12 learning outcomes 530 and 540 where elements for the different learning outcomes may come from assembling learning objects from different courses as described in ¶ 126 to create the learning objective sequence 502 for the activity stream and Figures 5-7 and 11).
Claims 7 and 18 are rejected under 35 U.S.C. 103 as being unpatentable over the previous combination of Packard in view of Dugas, Bamhart, Cheng and Ferriol as applied to claims 1 and 12, respectively, in further view of Gillespie et al. (US Pub. 2012/0308970 A1).
In re Claim 7, the previous combination of Packard in view of Dugas, Bamhart, Cheng and Ferriol as applied to claim 1 discloses the claimed invention as shown above. Packard is silent on, but Gillespie et al. teaches: wherein at least one of:
the number of pacing activities (at least ¶ 119, "In response, the system is configured to show the targeted user's calendar with the assignment(s) added”;
the duration of time allotted for the pacing activities (at least ¶ 120 “In another scenario, the system may be configured to show the targeted user's calendar with the assignment(s) added and assignments weighted, based on amount of time,” where time is allotted to assignments based on the amount of free time the student has available); and,
the period of the electronic pacing guide (at least ¶ 120 and 121 where increase the number of activities and their duration inherently effects the period of the pacing guide);
is determined by a proximity between a date of the primary course activity and a date of at least one of the other course activities (at least ¶ 119 the system is configured to calculate a time allotment and execution of tasks (i.e., mapping [assignments] to calendar […]) is based on […] the time available to complete the assignment (i.e., sum of free time for the number of days between the date assigned and the due date), and ¶ 120).
Thus, it would have been obvious for an individual having ordinary skill in the art at the time the invention was effectively filed to have modified the invention as disclosed by Packard in view of Dugas, Bamhart, Cheng and Ferriol where at least one of the number of pacing activities, the duration of time allotted for the pacing activities and the period of the pacing activities are determined by a proximity between a date of the primary course activity and a date of at least one of the other course activities for the purpose of providing only as much educational content as a user can observe in a limited amount of time for the benefit of “providing incentives and rewards, as well as entertainment and visualization to increase the likelihood that users of the solution will continue use to ensure results” (¶ 7, Gillespie et al.).
In re Claim 18, the previous combination of Packard in view of Dugas, Bamhart, Cheng and Ferriol as applied to claim 12 discloses the claimed invention as shown above. Packard is silent on, but Gillespie et al. teaches: wherein at least one of:
the number of pacing activities (at least ¶ 119, "In response, the system is configured to show the targeted user's calendar with the assignment(s) added”;
the duration of time allotted for the pacing activities (at least ¶ 120 “In another scenario, the system may be configured to show the targeted user's calendar with the assignment(s) added and assignments weighted, based on amount of time,” where time is allotted to assignments based on the amount of free time the student has available); and,
the period of the electronic pacing guide (at least ¶ 120 and 121 where increase the number of activities and their duration inherently effects the period of the pacing guide);
is determined by a proximity between a date of the primary electronic course activity and a date of at least one of the other electronic course activities (at least ¶ 19 wherein the system is configured to calculate a time allotment and execution of tasks (i.e., mapping [assignments] to calendar […]) is based on […] the time available to complete the assignment (i.e., sum of free time for the number of days between the date assigned and the due date) and ¶ 20).
Thus, it would have been obvious for an individual having ordinary skill in the art at the time the invention was effectively filed to have modified the invention as disclosed by Packard in view of Dugas, Bamhart, Cheng and Ferriol where at least one of the number of pacing activities, the duration of time allotted for the pacing activities and the period of the pacing activities are determined by a proximity between a date of the primary course activity and a date of at least one of the other course activities for the purpose of providing only as much educational content as a user can observe in a limited amount of time for the benefit of “providing incentives and rewards, as well as entertainment and visualization to increase the likelihood that users of the solution will continue use to ensure results” (¶ 7, Gillespie et al.).
Claims 6 and 17 are rejected under 35 U.S.C. 103 as being unpatentable over the previous combination of Packard in view of Dugas, Bamhart, Cheng and Ferriol as applied to claims 2 and 13, respectively, in further view of Coleman et al. (US Pub. 2006/0114129 A1).
In re Claim 6, the previous combination of Packard in view of Dugas, Bamhart and Cheng as applied to claim 2 discloses the claimed invention as shown above. Packard is arguably silent on, but Coleman et al. teaches:
the number of pacing activities (at least “Instructional Response Materials" in ¶ [1102 and ¶ 36 "provide Users with instructional materials that are organized in the same Skills assessed on the Test," where originally no activities are provided));
is determined by a grade-weight associated with the primary electronic course activity (at least ¶ 36 “another object is to provide Users with instructional materials that are organized in the same Skills assessed on the Test,” and where additional materials are given to students in the skills (primary course activity) that are weighted highly on the test (at least ¶ 774 through the Room to Grow Function, ¶ 260, 788, and Figure 36).
Thus, it would have been obvious for an individual having ordinary skill in the art at the time the invention was effectively filed to have modified the invention as disclosed by Packard in view of Dugas, Bamhart, Cheng and Ferriol where at least one of the number of pacing activities, the duration of time allotted for the pacing activities and the period of the pacing activities are determined by a grade-weight associated with the primary course activity for the purpose of providing review material “in skills in which individual students and groups have the greatest potential for growth” (Abstract, Coleman et al.).
In re Claim 17, the previous combination of Packard in view of Dugas, Bamhart, Cheng and Ferriol as applied to claim 13 discloses the claimed invention as shown above. Packard is arguably silent on, but Coleman et al. teaches:
the number of pacing activities (at least “Instructional Response Materials" in ¶ [1102 and ¶ 36 "provide Users with instructional materials that are organized in the same Skills assessed on the Test," where originally no activities are provided));
is determined by a grade-weight associated with the primary electronic course activity (at least ¶ 36 “another object is to provide Users with instructional materials that are organized in the same Skills assessed on the Test,” and where additional materials are given to students in the skills (primary course activity) that are weighted highly on the test (at least ¶ 774 through the Room to Grow Function, ¶ 260, 788, and Figure 36).
Thus, it would have been obvious for an individual having ordinary skill in the art at the time the invention was effectively filed to have modified the invention as disclosed by Packard in view of Dugas, Bamhart, Cheng and Ferriol where at least one of the number of pacing activities, the duration of time allotted for the pacing activities and the period of the pacing activities are determined by a grade-weight associated with the primary course activity for the purpose of providing review material “in skills in which individual students and groups have the greatest potential for growth” (Abstract, Coleman et al.).
Response to Arguments
Rejections of Non-Statutory Double Patenting
Contrary to Applicant’s remark that “Applicant has filed herewith a terminal disclaimer in relation to the '604 application”, no terminal disclaimer has been filed at the time of completion of this office action on 04/14/2026. The double patenting rejections of claims 1-9 and 12-20 have been updated in view of Applicant’s amendment as shown above and not repeated herein.
Rejections of Claims Under 35 U.S.C. § 101
Applicant first argues that “the Office Action improperly characterizes the alleged abstract idea too broadly, and not consistently with the above”, that “the presently claimed combination of features recite collating electronic course activities from a plurality of different courses with a plurality of different users and developing user specific pacing guides for a plurality of users of a learning management system based on various courses and timelines”, and that “the presently claimed combination of features performs the technical function of combining and generating a personal learning stream and pacing guide in a manner that improves the efficiency of communication over and use of the learning management system. This is a technical improvement of a learning management system and, given the complexity and sheer amount of data to be combined, cannot be practically performed in or by the human mind”. Applicant’s arguments have been fully considered but they are not persuasive.
It is first important to note that the Specification provides evidence as to what the claimed invention is directed. In the instant case, the Specification is entitled “SYSTEMS AND METHODS FOR COLLATING COURSE ACTIVITIES FROM A PLURALITY OF COURSES INTO A PERSONAL LEARNING STREAM”. Spec. Title.
The Background section of the Specification essentially restates the title. The Specification additionally discloses “[U]sing the system 100, one or more users 112, 114 may communicate with an educational service provider 130 to participate in, create, and consume electronic learning services” and that “the educational service provider 130 may be part of or associated with a traditional “bricks and mortar” educational institution (e.g. a grade school, university or college), another entity that provides educational services (e.g. a company that specializes in offering training courses, or an organization that has a training department), or may be an independent service provider (e.g. for individual electronic learning)”. Spec., ¶¶ 32, 33. The instant Specification further discloses “the likelihood or expectation that a student will be able to achieve success in a particular endeavor can be determined or estimated. This is called a “learner proficiency” or “learner proficiency score”. In particular, learner proficiency can be stated in respect of a particular learning outcome, or group of learning outcomes”. Spec., ¶ 58. Humans have long performed evaluation of learner proficiency manually using, at most, pen and paper, without need of any computer or other machine. Additionally, as previously noted, most dictionary definitions refer to collating separate physical items of paper rather than streams of data. The ordinary definition in a computer context for collating data is combining multiple sets of data into one set. This is consistent with the description of collating as combining “a plurality of similar learning activities from a plurality of other courses associated with the user”. In particular, “collating a plurality of similar learning activities from a plurality of other courses associated with the user” represents combining “a plurality of other courses associated with the user”. Humans have also long combined information from multiple sources. mentally or manually, using pen and paper. For example, books are created and edited by combining content from multiple sources. It is common knowledge that human educators have long combined, selected and generated learning content and associated pacing guides to meet the unique needs of each pupil. This long practiced educational technique is often referred to as adaptive teaching10 which involves tailoring instruction to meet the unique needs of each pupil. See CyberSource, 654 F.3d at 1372-73 ("[A] method that can be performed by human thought alone is merely an abstract idea and is not patent-eligible under§ 101."); see also In re Comiskey, 554 F.3d 967, 979 (Fed. Cir. 2009) ("[M]ental processes--or processes of human thinking--standing alone are not patentable even if they have practical application."); Gottschalk v. Benson, 409 U.S. 63, 67 (1972) ("Phenomena of nature ... , mental processes, and abstract intellectual concepts are not patentable, as they are the basic tools of scientific and technological work" ( emphasis added)). Additionally, mental processes remain unpatentable even when automated to reduce the burden on the user of what once could have been done with pen and paper. CyberSource, 654 F.3d at 1375 ("That purely mental processes can be unpatentable, even when performed by a computer, was precisely the holding of the Supreme Court in Gottschalk v. Benson.'').
Furthermore, there is a fundamental difference between computer functionality improvements, on one hand, and uses of existing computers as tools to perform a particular task, on the other — a distinction that the Federal Circuit applied in Enfish, in rejecting a § 101 challenge at the first stage of the Mayo/Alice framework because the claims at issue focused on a specific type of data structure, i.e., a self-referential table, designed to improve the way a computer stores and retrieves data in memory, and not merely on asserted advances in uses to which existing computer capabilities could be put. See Enfish, 822 F.3d at 1335–36. The alleged improvements that Applicant asserts do not concern an improvement to computer capabilities but instead relate to alleged improvements in collating course activities from a plurality of courses into a personal learning stream — a process in which a computer is used as a tool in its ordinary capacity.
Moreover, “[A]n abstract idea can generally be described at different levels of abstraction.” Apple, Inc. v. Ameranth, Inc., 842 F.3d 1229, 1240 (Fed. Cir. 2016). The level of abstraction an examiner uses to describe an abstract idea need not “impact the patentability analysis.” Apple, 842 F.3d at 1241. That is true here. Regardless of the level of generality used to describe the abstract idea recited, the claims are directed to an abstract idea. Cf. Accenture Glob. Servs., GmbH v. Guidewire Software, Inc., 728 F.3d 1336, 1344–45 (Fed. Cir. 2013) (“Although not as broad as the district court’s abstract idea of organizing data, it is nonetheless an abstract concept.”).
Applicant also argues “the claims include additional elements that are significantly more than the judicial exception”, that “the claim, as a whole, provides an improvement to the technology of a learning management system and to the field of individualized pacing and activities guides”, that “[T]he presently claimed combination of features demonstrate a technology rooted solution to a computer network-centric problem, specifically a networked learning management system, and thus amounts to significantly more than mental processes”, that “[T]he problem associated with determining individualized learning plans and pacing these learning plans in an e-learning environment is inherently a problem having a solution that is "rooted" in technology” and that “the presently claimed combination of features is extensive, automatic and integrated into a practical application such that it does not pre-empt any alleged abstract idea”. Applicant’s arguments have been fully considered but they are not persuasive.
The fact that the instant claims recite “providing, by the learning management system, the personal learning stream to the client device associated with the user via a network”, contrary to Applicant’s arguments, does not “demonstrate a technology rooted solution to a computer network-centric problem” but instead merely limits the claims to a technological environment. Similarly, “[T]he problem associated with determining individualized learning plans and pacing these learning plans in an e-learning environment” does not illustrate an inherent “problem having a solution that is "rooted" in technology”” but instead merely limits the claims to a technological environment. Merely “[l]imiting the invention to a technological environment does ‘not make an abstract concept any less abstract under step one.’” Berkheimer v. HP Inc., 881 F.3d 1360, 1367 (Fed. Cir. 2018) (quoting Intellectual Ventures I LLC v. Capital One Financial Corp., 850 F.3d 1332, 1340 (Fed. Cir. 2017)). Thus, merely linking the use of the judicial exception to a particular technological environment (e.g., computer network) or other field of use is not indicative of integration into a practical application. See MPEP § 2106.05(h).
Additionally, Applicant is respectfully reminded that “‘[w]hile preemption may signal patent ineligible subject matter, the absence of complete preemption does not demonstrate patent eligibility.’” Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015).
Furthermore, Applicant fails to indicate and the Examiner fails to find in the instant Specification or in the claims any reference to “a large institute scale”. Additionally, recitations in the claims of “a plurality of users”, “a plurality of electronic courses”, “a plurality of similar learning activities from a plurality of other courses” are not recitations of large number of users, large number of electronic courses, or large number of learning activities. Implementation by a computer alone does not transform a patent-ineligible abstract idea into a patent-eligible invention. See e.g., Intellectual Ventures I LLC v. Capital One Bank (USA), 792 F.3d 1363, 1370 (Fed. Cir. 2015) (“[M]erely adding computer functionality to increase the speed or efficiency of the process does not confer patent eligibility on an otherwise abstract idea.”)
Moreover, as noted earlier, it is common knowledge that human educators have long combined, selected and generated learning content and associated pacing guides. Tutors/mentors have further practiced this educational technique by tailoring instruction to meet the unique needs of each pupil, a practice generally referred to as adaptive teaching11. Automating this process which is an abstract idea does not transform it. See Cellspin Soft, Inc. v. Fitbit, Inc., 927 F.3d 1306, 1316 (Fed. Cir. 2019) (“[T]he need to perform tasks automatically is not a unique technical problem.”); OIP, 788 F.3d at 1363 (“At best, the claims describe the automation of the fundamental economic practice of offer-based price optimization through the use of generic-computer functions[]” to make such methods more efficient).
As previously noted, the alleged improvements that Applicant asserts do not concern an improvement to computer capabilities but instead relate to alleged improvements in collating course activities from a plurality of courses into a personal learning stream — a process in which a computer is used as a tool in its ordinary capacity. “Improving” a mental process or methods of organizing human activity through computer automation does not amount to an improvement in technology. See Int’l Business Machines, 50 F.4th at 1378 (“Using a computer to ‘concurrently update’ the map and the list may speed up the process, but ‘mere automation of manual processes using generic computers does not constitute a patentable improvement in computer technology.’” (citation omitted)); OIP Techs., Inc., 788 F.3d at 1363 (“[R]elying on a computer to perform routine tasks more quickly or more accurately is insufficient to render a claim patent eligible.”).
In light of the foregoing, the Examiner maintains that each of Applicant’s pending claims 1-9 and 12-2 considered as a whole, is directed to a patent-ineligible abstract idea that is not integrated into a practical application, and does not include an inventive concept.
Rejection of Claims Under 35 U.S.C. §103
Applicant's arguments in regard to the previously applied rejections under 35 U.S.C. § 103 have been fully considered but are moot in view of new ground(s) of rejection necessitated by Applicant’s amendment to the claims.
Conclusion
The prior art made of record and not relied upon is listed in the attached PTO Form 892 and is considered pertinent to applicant's disclosure.
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/EDDY SAINT-VIL/Primary Examiner, Art Unit 3715
1 https://www.govinfo.gov/content/pkg/FR-2019-01-07/pdf/2018-28282.pdf
2 561 U.S. 593, 604, 95 USPQ2d 1001, 1007 (2010).
3 823 F.3d 607, 610, 118 USPQ2d 1744, 1745 (Fed. Cir. 2016)
4 788 F.3d 1359, 1363, 115 USPQ2d 1090, 1093 (Fed. Cir. 2015
5 842 F.3d 1229, 1242, 120 USPQ2d 1844, 1855 (Fed. Cir. 2016)
6 687 F.3d 1266, 1278, 103 USPQ2d 1425, 1433 (Fed. Cir. 2012)
7 772 F.3d at 716, 112 USPQ2d at 1755
8 134 S. Ct. at 2359, 110 USPQ2d at 1984
9 793 F.3d 1306, 1334, 115 USPQ2d 1681, 1701 (Fed. Cir. 2015)
10 https://www.google.com/search?q=adaptive+teaching&safe=active&sca_esv=fc08007a95d58d70&rlz=1C1GCEA_enUS1106US1107&source=lnt&tbs=cdr%3A1%2Ccd_min%3A1900%2Ccd_max%3A2014&tbm=
11 https://www.google.com/search?q=adaptive+teaching&safe=active&sca_esv=fc08007a95d58d70&rlz=1C1GCEA_enUS1106US1107&source=lnt&tbs=cdr%3A1%2Ccd_min%3A1900%2Ccd_max%3A2014&tbm=