DETAILED ACTION
This FINAL office action is in response to Applicant’s amendment filed November 24, 2025. Applicant’s November 24th amendment amended claims 1-20. Currently Claims 1-20 are pending. Claims 1, 8 and 15 are the independent claims.
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 .
Response to Amendment
The 35 U.S.C. 101 rejection of claims 1-20 in the previous office action is maintained.
The 35 U.S.C. 112(a) rejection of claims 1-20 in the previous office action is withdrawn in response to Applicant’s amendments to the claims and remarks filed November 24, 2025.
Response to Arguments
Applicant’s arguments, see Page 17, filed November 24, 2025, with respect to 35 U.S.C. 112a have been fully considered and are persuasive. The 35 U.S.C. 112a rejection of claims 1-20 has been withdrawn.
Applicant's arguments filed November 24, 2025 have been fully considered but they are not persuasive. Specifically, Applicant argues that the claims are patent eligible under 35 U.S.C. 101 as the claims are not directed to an abstract idea (e.g. exists outside the human mind; sampling, predicting, dynamic MP calculation, real-time scan data; Paragraphs 18-22, 32-50, 56-59, 66-68; Remarks: Last Paragraph, Page 13; Page 14; Paragraphs 1-2, Page 15); the claims integrates the abstract idea into practical application (e.g. improves functioning of a computer or technical field - generation of a discrete probability function - specific computational technique - technical transformation of data, ties the claims to a technological implementation, real-time updating scan data; Specification: Paragraphs 39-50, 56, 57; Remarks: Last Two Paragraphs, Page 15; Paragraph 1, Page 16); and the claims recite significantly more (e.g. unconventional features - high volume sampling, dynamic minimum presentation, technical improvement over statis demand forecasting; Specification: Paragraphs 66-68; Remarks: Last Two Paragraphs, Page 16).
In response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., probabilistic machine learning model – not recited in Claims 1-14; Remarks: Last Paragraph, Page 14) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
In response to Applicant’s argument that the claims are patent eligible under 35 U.S.C. 101, the examiner respectfully disagrees.
The claims remain directed to the well-known economic practice of production planning, specifically and as argued the claims are directed to generating a production ‘plan’/updated production ‘plan’ specifying the number of instances of a fresh item to be produced (minimum presentation value; e.g. generating a number of salads to prepare and present on a shelf in a retail store – the plan is merely a single number; Specification: Figure 6).
While the claims may represent an improvement to the fundamental economic process of production planning (i.e. determining/generating/updating a number of instances of a selected fresh item to be produced on a selected date ), the claims in no way either claimed or disclosed represent a provide a technical solution to a technical problem (determining a number of items to produced is a business solution to a business problem); does not improve the underlying technology (i.e. computer, system, memory, etc.; the claimed generic hardware is merely used to apply the abstract idea – see discussion below); does not improve another technical field (e.g. nowhere in Applicant’s disclosure or arguments is there any discussion or support that the claimed invention improves the field of machine learning or more specifically improves probabilistic machine learning model of Claim 15 only).
Additionally, the claims are directed to a mental processing practically capable of being performed in the human mind via observation, evaluation, judgement and opinion. Of particular note are claims 8-14 which fail to positively recite who or what entity performs any of the method steps, accordingly claims 8-14 have been interpreted to being performed in the human mind, via pen and paper and/or through the use of a generic computer.
As for Claims 1-7 and 15-20, the claims are directed to an abstract idea without significantly more. Representative claim 1: The step of obtain historical item-level and item-store-level data may be performed in the human mind using observation of data. The step of generating, using a probabilistic time series model a set of real-valued demand samples encompasses both a well-known mathematical concept/operation (probabilistic time series model; mathematical grouping of abstract ideas) and can be performing practically by a human evaluation and judgement. The step of convert the set of real-valued demand samples into an approximate probability mass function encompasses both a well-known mathematical concept/operation (probabilistic time series model; mathematical grouping of abstract ideas) and can be performing practically by a human evaluation and judgement. The step of calculate a predicted demand value for the selected fresh item may be performed in the human mind via evaluation and is a mathematical operation. The step of calculate a predicted monetary loss as a function of production costs may be performed in the human mind via evaluation and is a mathematical operation. The step of calculate a dynamic value for the selected fresh item may be performed in the human mind via evaluation and is a mathematical operation. The step of generate using the predicted demand and dynamic MP values a production plan specifying the number of instances of a fresh item to be produced may be performed by a human mind via evaluation and judgement. The step of updating the probability mass function in response to real-time scan data may be performed in the human mind via observation and evaluation. The step of recompute the dynamic MP value may be performed in the human mind via evaluation and is a mathematical operation. The step of generating an updated production plan may be performed in the human mind via judgement and opinion.
Other than the recitation of a system, processor, memory storing instructions, computer storage devices, computer nothing in the claimed steps precludes the step from practically being performed in the mind. The claims do not recite additional elements that are sufficient to amount to significantly more than the abstract idea. The limitations directed to a system, processor, memory storing instructions, computer storage devices, and computer are each recited at a high level of generality and amount to no more than mere instructions to apply the exception using a generic computer. See MPEP 2106.05(f). Further the mere nominal recitation of a generic computer (i.e., system, processor, memory storing instructions, computer storage devices, computer; each used for their well-understood, conventional and routine purpose) does not take the claim limitation out of the mental processes grouping.
The claims use “conventional or generic technology in a nascent but well-known environment” to implement the abstract idea of “visualizing flow direction is a distribution network” (Claim 20, preamble). In re TLI Commc’ns LLC Pat. Litig., 823 F.3d 607, 612 (Fed. Cir. 2016). The recited technology (processor, memories, etc.), are used as a “conduit for the abstract idea,” not to provide a technological solution to a specific technological problem. Id.; see also id. at 611–13 (holding claims reciting the use of a cellular telephone and a network server to classify an image and store the image based on its classification to be abstract because the patent did “not describe a new telephone, a new server, or a new physical combination of the two” and did not address “how to combine a camera with a cellular telephone, how to transmit images via a cellular network, or even how to append classification information to that data”).
Nothing in Applicant’s disclosures suggests that the Applicant intended to accomplish any of the steps recited in the claims through anything other than well understood technology used in a routine and conventional manner. Therefore, the claims lack an inventive concept. See also, e.g., Elec. Power Grp., 830 F.3d at 1355 (holding claims lacked inventive concept where “[n]othing in the claims, understood in light of the specification, requires anything other than off-the-shelf, conventional computer, network, and display technology for gathering, sending, and presenting the desired information”); Content Extraction, 776 F.3d at 1348 (holding claims lacked an inventive concept where the claims recited the use of “existing scanning and processing technology”).
Reevaluating the obtain historical item-level and item-store-level sales data, item attribute data, etc. and in response to receiving real-time scan data which are considered insignificant extra solution activity, these limitations are mere data gathering recited at a high level of generality and amount to nothing more than receiving data which is well-understood, routine and conventional activities. The limitations remain insignificant extra solution activity even upon reconsideration. Even when considered in combination the additional elements represent mere instructions to apply an exception and insignificant extra solution activity which cannot provide an inventive concept.
Accordingly, the claims are not patent eligible under 35 U.S.C. 101.
In response to Applicant’s argument that the claims are patent eligible under 35 U.S.C. 101 as the claims integrate the abstract idea into a practical application, the examiner respectfully disagrees.
The claims are directed to a well-known business practice production planning – in this case the claims are directed to generating a production ‘plan’/updated production ‘plan’ specifying the number of instances of a fresh item to be produced (minimum presentation value; e.g. generating a number of salads to prepare and present on a shelf in a retail store – the plan is merely a single number – the fresh items may or may not be produced in accordance to the plan; the plan may or may not be outputted provided to a human; Specification: Figure 6).
. While the claims may represent an improvement to the business process of determining/updating the number of instances of a fresh item to be produced (minimum presentation value; production ‘plan’) they in no way either claimed or disclosed represent a practical application.
Under the see MPEP § 2106.05, the claims are evaluated to determine if additional elements that integrate the judicial exception into a practical application (see Manual of Patent Examining Procedure ("MPEP") §§ 2106.05(a)-(c), (e)- (h)). A claim that integrates a judicial exception into a practical application applies, relies on, or uses the judicial exception in a manner that imposes a meaningful limit on the judicial exception, such that the claim is more than a drafting effort designed to monopolize the judicial exception.
For example, limitations that are indicative of "integration into a practical application" include:
o Improvements to the functioning of a computer, or to any other technology or technical field - see MPEP § 2106.05(a);
o Applying the judicial exception with, or by use of, a particular machine - see MPEP § 2106.05(b);
o Effecting a transformation or reduction of a particular article to a different state or thing - see MPEP § 2106.05(c); and
o Applying or using the judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment, such that the claim as a whole is more than a drafting effort designed to monopolize the exception - see MPEP § 2106.05(e).
In contrast, limitations that are not indicative of "integration into a practical application" include:
o Adding the words "apply it" (or an equivalent) with the judicial exception, or merely include instructions to implement an abstract idea on a computer, or merely uses a computer as a tool to perform an abstract idea - see MPEP § 2106.05(±);
o Adding insignificant extra-solution activity to the judicial exception- see MPEP § 2106.05(g); and
o Generally linking the use of the judicial exception to a particular technological environment or field of use - see MPEP 2106.05(h).
In view of the MPEP § 2106.05, one must consider whether there are additional elements set forth in the claims that integrate the judicial exception into a practical application. The identified additional non-abstract elements recited in the independent claims are the generic system, processor, memory storing instructions, computer storage devices, computer. These generic computer hardware merely performs generic computer functions of receiving and processing data and represent a purely conventional implementation of applicant’s production planning in the general field of business management and do not represent significantly more than the abstract idea. See at least MPEP § 2106.05(a) ("Improvements to the Functioning of a Computer or to Any Other Technology or Technical Field").
These recited additional elements are merely generic computer components. The claims do present any other issues as set forth in the MPEP § 2106.05 regarding a determination of whether the additional generic elements integrate the judicial exception into a practical application. Rather, the claims merely use instructions to implement an abstract idea on a computer, or merely use a computer as a tool to perform an abstract idea.
The claims do not recite improvements to the functioning of a computer or any other technology field (MPEP 2106.05(a)), the claims do not apply or use the abstract idea to effect a particular treatment or prophylaxis for a disease or medical condition, the claims to do apply the abstract idea with a particular machine (MPEP 2106.05(b)), the claims do not effect a transformation or reduction of a particular article to a different state or thing (e.g. data remains data even after processing; MPEP 2106.05(c)), the claims no not apply or use the abstract idea in some other meaningful way beyond generally linking the user of the abstract idea to a particular technological environment (i.e. a generic computer) such that the claim as a whole is more than a drafting effort designed to monopolize the abstract idea (MPEP 2106.05(e)). The recited generic computing elements are no more than mere instructions to apply the exception using a generic computer component. Accordingly, this additional element does not integrate the abstract idea into a practical application because it does not impose any meaningful limits on practicing the abstract idea.
Regarding the recited probabilistic machine learning model (Claim 15) and the probabilistic time series model (Claims 1, 8) to generate a set of real-valued demand samples for a selected fresh item at a selected retail location on a selected date is recited at a high level of generality and amounts to no more than mere instructions to apply the abstract idea using a generic probabilistic machine learning model (Claim 15) and the probabilistic time series model (Claims 1, 8) on a generic computer, also recited at a high level of generality. The probabilistic machine learning model (Claim 15) and the probabilistic time series model (Claims 1, 8) is used to generally apply the abstract idea without limiting how the probabilistic machine learning model (Claim 15) and the probabilistic time series model (Claims 1, 8). The probabilistic machine learning model (Claim 15) and the probabilistic time series model (Claims 1, 8) is described at a high level such that it amounts to using a generic computer with a generic trained machine-learning model to apply the abstract idea. These limitations only recite outcomes/results of the steps without any details about how the outcomes are accomplished.
Thus, under Step 2A, Prong Two (MPEP §§ 2106.05(a)-(c) and (e)¬ (h)), the claims do not integrate the judicial exception into a practical application.
There is a fundamental difference between computer functionality improvements, on the 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. Here the claims simply use a computer as a tool and nothing more.
For the reasons outlined above, that the claims recite a method of organizing human activity, i.e., an abstract idea, and that the additional element recited in the claim beyond the abstract idea (i.e., system, processor, memory storing instructions, computer storage devices, computer) is no more than a generic computer component used as a tool to perform the recited abstract idea. As such, it does not integrate the abstract idea into a practical application. See Alice Corp., 573 U.S. at 223-24 (“[Wholly generic computer implementation is not generally the sort of ‘additional featur[e]’ that provides any ‘practical assurance that the process is more than a drafting effort designed to monopolize the [abstract idea] itself.’” (quoting Mayo, 566 U.S. at 77)).
Accordingly, the claims are directed to an abstract idea.
Step Two of the Mayo/Alice Framework (Step 2B)
Having determined under step one of the Mayo/Alice framework that the claims are directed to an abstract idea, we next consider under Step 2B of the Guidance, the second step of the Mayo/Alice framework, whether the claims include additional elements or a combination of elements that provides an “inventive concept,” i.e., whether an additional element or combination of elements adds specific limitations beyond the judicial exception that are not “well-understood, routine, conventional activity” in the field (which is indicative that an inventive concept is present) or simply appends well-understood, routine, conventional activities previously known to the industry to the judicial exception. See MPEP § 2106.05.
Under step two of the Mayo/Alice framework, the elements of each claim are considered both individually and “as an ordered combination” to determine whether the additional elements, i.e., the elements other than the abstract idea itself, “transform the nature of the claim” into a patent-eligible application. Alice Corp., 573 U.S. at 217 (citation omitted); see Mayo, 566 U.S. at 72-73 (requiring that “a process that focuses upon the use of a natural law also contain other elements or a combination of elements, sometimes referred to as an ‘inventive concept,’ sufficient to ensure that the patent in practice amounts to significantly more than a patent upon the natural law itself’ (emphasis added) (citation omitted)).
Here the only additional element recited in the claims beyond the abstract idea is a system, processor, memory storing instructions, computer storage devices, computer” i.e., generic computer component. See Alice, 573 U.S. at 223 (“[T]he mere recitation of a generic computer cannot transform a patent-ineligible abstract idea into a patent-eligible invention.”). Applicant has not identified any additional elements recited in the claim that, individually or in combination, provides significantly more than the abstract idea.
With respect to the the recited probabilistic machine learning model (Claim 15) and the probabilistic time series model (Claims 1, 8) to generate a set of real-valued demand samples for a selected fresh item at a selected retail location on a selected date is recited at a high level of generality and amounts to no more than mere instructions to apply the abstract idea using a generic probabilistic machine learning model (Claim 15) and the probabilistic time series model (Claims 1, 8) on a generic computer, also recited at a high level of generality. The probabilistic machine learning model (Claim 15) and the probabilistic time series model (Claims 1, 8) is used to generally apply the abstract idea without limiting how the probabilistic machine learning model (Claim 15) and the probabilistic time series model (Claims 1, 8). The probabilistic machine learning model (Claim 15) and the probabilistic time series model (Claims 1, 8) is described at a high level such that it amounts to using a generic computer with a generic trained machine-learning model to apply the abstract idea. These limitations only recite outcomes/results of the steps without any details about how the outcomes are accomplished.
With regards to Applicant’s argument that the claimed invention improves the functioning of a computer and/or is tied to a specific technological implementation (e.g. real-time scanning) the examiner respectfully disagrees. As discussed above, in detail, the claims are directed to performing a series of method steps, many of which are mathematical operations/calculations, in order to determine a number of fresh items to produce (production plan), using conventional, generic, routine and well-known computer, processor, memory and the like. Nothing in Applicant’s disclosure nor Applicant’s argument provides support or specifically discusses wished for, much alone, achieved improvements in the functioning of a computer.
Similar to the discussion in Uniloc USA, Inc. v. LG Electronics USA, Appeal No. 19-1835 (Fed. Cir. Apr. 30, 2020), where the Federal Circuit reaffirmed that software inventions are patentable in the U.S. with a bright-line statement: “Our precedent is clear that software can make patent-eligible improvements to computer technology, and related claims are eligible as long as they are directed to non-abstract improvements to the functionality of a computer or network platform itself.” the instant application merely applies the abstract idea using a generic computer as a conduit/tool for the abstract idea and does not improve the functioning of a computer or computer networks, does not improve another technical field and does not provide a technical solution to a technical problem.
Using generic computers performing generic computer functions as a tool/conduit to apply the abstract idea does not ‘tie’ the method steps to a particular technological environment. Claims 8-14, in fact, fail to recite any technology of any kind and therefore could not possibly represent either an improvement in a technology/technical field or be tied to a particular technical implementation.
As for Applicant’s argument that the claims recite a technical transformation of data, the examiner respectfully disagrees. Data processed by a generic compute obtain data and then perform a series of data processing steps including several mathematical operations (e.g. converting demand sample values to an approximate probability mass function; calculate a predicted demand, etc.) cannot be transformed (e.g. data remains data even after processing; MPEP 2106.05(c)) nor does data processing represent an improvement in the underlying technology or an improvement in another technical field nor does it provide a technical solution to a technical problem.
As for argued Specification Paragraphs 39-50, 56, 57, the examiner strongly encourages Applicant to map any disclosed improvements to the functioning of a computer, improvements to another technical field and/or a technical solution to a technical problem to the recited claims.
Accordingly, the claims are not patent eligible under 35 U.S.C. 101.
In response to Applicant’s argument that the claims are patent eligible under 35 U.S.C. 101, as the claims recite significantly more than the abstract idea, the examiner respectfully disagrees.
Specifically, the argued unconventional features, including high volume sampling, dynamic minimum presentation, technical improvement over static demand forecasting, are at best improvements in the abstract idea itself (i.e. improvement to production planning) and do not represent an improvement in the underlying technology or an improvement in another technical field nor does it provide a technical solution to a technical problem.
There is a fundamental difference between computer functionality improvements, on the 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. Here the claims simply use a computer as a tool and nothing more.
For the reasons outlined above, the claims recite a method of organizing human activity, i.e., an abstract idea, and that the additional element recited in the claim beyond the abstract idea (i.e., computer, display) is no more than a generic computer component used as a tool to perform the recited abstract idea. As such, it does not integrate the abstract idea into a practical application. See Alice Corp., 573 U.S. at 223-24 (“[Wholly generic computer implementation is not generally the sort of ‘additional featur[e]’ that provides any ‘practical assurance that the process is more than a drafting effort designed to monopolize the [abstract idea] itself.’” (quoting Mayo, 566 U.S. at 77)).
The claims use “conventional or generic technology in a nascent but well-known environment” to implement the abstract idea of business metric forecasting. In re TLI Commc’ns LLC Pat. Litig., 823 F.3d 607, 612 (Fed. Cir. 2016). The recited technology (processor, memories, etc.), are used as a “conduit for the abstract idea,” not to provide a technological solution to a specific technological problem. Id.; see also id. at 611–13 (holding claims reciting the use of a cellular telephone and a network server to classify an image and store the image based on its classification to be abstract because the patent did “not describe a new telephone, a new server, or a new physical combination of the two” and did not address “how to combine a camera with a cellular telephone, how to transmit images via a cellular network, or even how to append classification information to that data”).
Nothing in Applicant’s disclosures suggests that the Applicant intended to accomplish any of the steps the claims through anything other than well understood technology used in a routine and conventional manner. Therefore, the claims lack an inventive concept. See also, e.g., Elec. Power Grp., 830 F.3d at 1355 (holding claims lacked inventive concept where “[n]othing in the claims, understood in light of the specification, requires anything other than off-the-shelf, conventional computer, network, and display technology for gathering, sending, and presenting the desired information”); Content Extraction, 776 F.3d at 1348 (holding claims lacked an inventive concept where the claims recited the use of “existing scanning and processing technology”).
Accordingly, the claims are not patent eligible under 35 U.S.C. 101.
Examiner suggest Applicant review the recent 2024 Guidance Update on Patent Subject Matter Eligibility, Including on Artificial Intelligence (2024 AI SME Update) in the Federal Register on July 17, 2024 (https://www.federalregister.gov/documents/2024/07/17/2024-15377/2024-guidance-update-on-patent-subject-matter-eligibility-including-on-artificial-intelligence) and the three new Subject Matter Eligibility Examples 47-49 (https://www.uspto.gov/sites/default/files/documents/2024-AI-SMEUpdateExamples47-49.pdf) as well as the recent Ex Parte Desjardins, decision (see MPEP § 2106.04(d)(1) below)
MPEP § 2106.04(d)(1)
In short, first the specification should be evaluated to determine if the disclosure provides sufficient details such that one of ordinary skill in the art would recognize the claimed invention as providing an improvement in the functioning of a computer, or an improvement to other technology or a technical field. The specification need not explicitly set forth the improvement, but it must describe the invention such that the improvement would be apparent to one of ordinary skill in the art. Conversely, if the specification explicitly sets forth an improvement but only in a conclusory manner (i.e., a bare assertion of an improvement without the detail necessary to be apparent to a person of ordinary skill in the art), the examiner should not determine that the claim improves technology or a technical field. Second, if the specification sets forth an improvement in technology or a technical field, the claim must be evaluated to ensure that the claim itself reflects the disclosed improvement, i.e., That is, the claim includes the components or steps of the invention that provide the improvement described in the specification. The claim itself does not need to explicitly recite the improvement described in the specification (e.g., “thereby increasing the bandwidth of the channel”). See, e.g., Ex Parte Desjardins, Appeal No. 2024-000567 (PTAB September 26, 2025, Appeals Review Panel Decision) (precedential), in which the specification identified the improvement to machine learning technology by explaining how the machine learning model is trained to learn new tasks while protecting knowledge about previous tasks to overcome the problem of “catastrophic forgetting,” and that the claims reflected the improvement identified in the specification. Indeed, enumerated improvements identified in the Desjardins specification included disclosures of the effective learning of new tasks in succession in connection with specifically protecting knowledge concerning previously accomplished tasks; allowing the system to reduce use of storage capacity; and the enablement of reduced complexity in the system. Such improvements were tantamount to how the machine learning model itself would function in operation and therefore not subsumed in the identified mathematical calculation.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more.
Regarding independent Claims 1, 8 and 15, the claims are directed to the abstract idea of production planning. This is a process (i.e. a series of steps) which (Statutory Category – Yes –process).
The claims recite a judicial exception, a method for organizing human activity, production planning (Judicial Exception – Yes – organizing human activity). Specifically, the claims are directed to production planning, specifically and as argued the claims are directed to generating a production ‘plan’/updated production ‘plan’ specifying the number of instances of a fresh item to be produced (minimum presentation value; e.g. generating a number of salads to prepare and present on a shelf in a retail store – the plan is merely a single number; Specification: Figure 6), wherein production planning is a fundamental economic practice that falls into the abstract idea subcategories of sales activities and/or commercial interactions. See 2019 Revised Guidance, 84 Fed. Reg. at 52. Further all of the steps of “obtain”, “generate”, “convert”, “calculate”, “calculate”, “calculate”, “generate”, “update”, “recompute” and “generate” recite functions of the production planning are also directed to an abstract idea that falls into the abstract idea subcategories of sales activities and/or commercial interactions. The steps of generated a set of real-valued demand data, convert the set of real-valued demand samples, calculate a predicted demand, calculated a predicted monetary loss, calculating a dynamic MP value, recompute the dynamic MP value are also directed to an abstract idea because they are mathematical concepts/operations. The intended purpose of independent claims 1, 8 and 15 appears specify a number of instances of a fresh item to be produced at a retail location on a date.
Accordingly, the claims recite an abstract idea – fundamental economic practice, specifically in the abstract idea subcategories of sales activities and/or commercial interactions. The exceptions are the recipient (Claim 8; who is a person) and additional limitations of generic computer elements: system, processor, memory storing instructions, computer storage devices, computer. See 2019 Revised Guidance, 84 Fed. Reg. at 52.
Accordingly, the claims recite an abstract idea under Step 2A, Prong One, we proceed to Step 2A, Prong Two. Considering whether the additional elements set forth in the claim integrate the abstract idea into a practical application (See 2019 Revised Guidance, 84 Fed. Reg. at 54-55), the previously identified non-abstract elements directed to generic computing components include: system, processor, memory storing instructions, computer storage devices, computer. These generic computing components are merely used to obtain/receive and process information as described extensively in Applicant’s specification (Specification: Figure 1). Generic computers performing generic computer functions, alone, do not amount to significantly more than the abstract idea. Moreover, when viewed as a whole with such additional elements considered as an ordered combination, the claim modified by adding a generic computer would be nothing more than a purely conventional computerized implementation of applicant's production planning in the general field of business management and would not provide significantly more than the judicial exception itself. Note McRo, Inc. v. Bandai Namco Games America Inc. (837 F.3d 1299 (Fed. Cir. 2016)), guides: "[t]he abstract idea exception prevents patenting a result where 'it matters not by what process or machinery the result is accomplished."' 837 F.3d at 1312 (quoting O'Reilly v. Morse, 56 U.S. 62, 113 (1854)) (emphasis added). The claims are not directed to a particular machine nor do they recite a particular transformation (MPEP § 2106.05(b)).
Regarding the recited probabilistic machine learning model (Claim 15) and the probabilistic time series model (Claims 1, 8) to generate a set of real-valued demand samples for a selected fresh item at a selected retail location on a selected date is recited at a high level of generality and amounts to no more than mere instructions to apply the abstract idea using a generic probabilistic machine learning model (Claim 15) and the probabilistic time series model (Claims 1, 8) on a generic computer, also recited at a high level of generality. The probabilistic machine learning model (Claim 15) and the probabilistic time series model (Claims 1, 8) is used to generally apply the abstract idea without limiting how the probabilistic machine learning model (Claim 15) and the probabilistic time series model (Claims 1, 8). The probabilistic machine learning model (Claim 15) and the probabilistic time series model (Claims 1, 8) is described at a high level such that it amounts to using a generic computer with a generic trained machine-learning model to apply the abstract idea. These limitations only recite outcomes/results of the steps without any details about how the outcomes are accomplished.
Additionally, the claims do not recite any specific claim limitations that would provide a meaningful limitation beyond generally linking the use of the judicial exception to a particular technological environment. Nor do the claims present any other issues as set forth in the 2019 Revised Guidance regarding a determination of whether the additional generic elements integrate the judicial exception into a practical application. See Revised Guidance, 84 Fed. Reg. at 55. Rather, the claims merely use instructions to implement an abstract idea on a computer, or merely use a computer as a tool to perform an abstract idea. Thus, under Step 2A, Prong Two (MPEP §§ 2106.05(a)-(c) and (e)- (h)), claims 1-20 do not integrate the judicial exception into a practical application. Regarding the use of the generic (known, conventional) recited system, processor, memory storing instructions, computer storage devices, computer," the Supreme Court has held "the mere recitation of a generic computer cannot transform a patent-ineligible abstract idea into a patent-eligible invention." Alice, 573 U.S. 208, 223. Generic computers performing generic computer functions, alone, do not amount to significantly more than the abstract idea. The claims as a whole do not recite more than what was well-known, routine and conventional in the field (see MPEP § 2106.05(d)). In light of the foregoing and under the 2019 Revised Guidance, that each of the claims, 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.
Accordingly, the claims are not patent eligible under 35 U.S.C. 101.
Additionally, the claims recite a judicial exception, a mental processes, which can be performed in the human mind or via pen and paper (Judicial Exception – Yes – mental process).
The claimed steps of generate using a probabilistic time series model/probabilistic machine learning model a set of real-valued demand samples, convert the set of real valued demand samples into an approximate probability mass function, calculate a predicted demand value, calculate a predicted monetary loss, calculate a dynamic MP value, generate a production plan specifying a number of instances, update the probability mass function, recompute the dynamic MP and generate an updated production plan all describe the abstract idea. These limitations as drafted are directed to a process that under its reasonable interpretation covers performance of the steps in the mind but for the recitation of the generic computer components. Other than the recitation of a system, processor, memory storing instructions, computer storage devices, computer nothing in the claimed steps precludes the step from practically being performed in the mind. Claims 8-14 do not positively recite, in the body of the claims, who or what performs the method steps (i.e. broadest reasonable interpretation includes performing the method steps via human mind or pen and paper). The claims do not recite additional elements that are sufficient to amount to significantly more than the abstract idea because the step(s) of obtain historical item-level and item-store level data and receiving real-time scan data are directed to insignificant pre-solution activity (i.e. data input). The mere nominal recitation of a generic processor/computer does not take the claim limitation out of the mental processes grouping.
Regarding the recited probabilistic machine learning model (Claim 15) and the probabilistic time series model (Claims 1, 8) to generate a set of real-valued demand samples for a selected fresh item at a selected retail location on a selected date is recited at a high level of generality and amounts to no more than mere instructions to apply the abstract idea using a generic probabilistic machine learning model (Claim 15) and the probabilistic time series model (Claims 1, 8) on a generic computer, also recited at a high level of generality. The probabilistic machine learning model (Claim 15) and the probabilistic time series model (Claims 1, 8) is used to generally apply the abstract idea without limiting how the probabilistic machine learning model (Claim 15) and the probabilistic time series model (Claims 1, 8). The probabilistic machine learning model (Claim 15) and the probabilistic time series model (Claims 1, 8) is described at a high level such that it amounts to using a generic computer with a generic trained machine-learning model to apply the abstract idea. These limitations only recite outcomes/results of the steps without any details about how the outcomes are accomplished.
Thus, the claim recites a mental process. (Judicial Exception recited – Yes – mental process).
The claims do not integrate the abstract idea into a practical application. The generic system, processor, memory storing instructions, computer storage devices, computer are recited at a high level of generality merely performs generic computer functions of receiving, storing, processing and displaying data. The generic processor/computer merely applies the abstract idea using generic computer components. The elements do not integrate the abstract idea into a practical application because they do not impose any meaningful limits on practicing the abstract idea. The claims do not recite improvements to the functioning of a computer or any other technology field (MPEP 2106.05(a)), the claims do not apply or use the abstract idea to effect a particular treatment or prophylaxis for a disease or medical condition, the claims to do apply the abstract idea with a particular machine (MPEP 2106.05(b)), the claims do not effect a transformation or reduction of a particular article to a different state or thing (e.g. data remains data even after processing; MPEP 2106.05(c)), the claims no not apply or use the abstract idea in some other meaningful way beyond generally linking the user of the abstract idea to a particular technological environment (i.e. a generic computer) such that the claim as a whole is more than a drafting effort designed to monopolize the abstract idea (MPEP 2106.05(e)). The recited generic computing elements are no more than mere instructions to apply the exception using a generic computer component.
Accordingly, this additional element does not integrate the abstract idea into a practical application because it does not impose any meaningful limits on practicing the abstract idea. (Integrated into a Practical Application – No).
As discussed above the additional elements in the claims amount to no more than a mere instruction to apply the abstract idea using generic computing components, wherein mere instructions to apply an judicial exception using generic computer components cannot integrate a judicial exception into a practical application or provide an inventive concept. For the storing and displaying steps that were considered extra-solution activity, this has been re-evaluated and determined to be well-understood, routine, conventional activity in the field. Applications specification does not provide any indication that the computer/processor is anything other than a generic, off-the-shelf computer component, and the Symantec, TLI, and OIP Techs. court decisions (MPEP 2106.05(d)(II)) indicate that mere collection or receipt of data over a network is a well‐understood, routine, and conventional function when it is claimed in a merely generic manner (as it is here). For these reasons, there is no inventive concept. The claim is ineligible (Provide Inventive Concept – No).
The claims are ineligible under 35 U.S.C. 101 as being directed to an abstract idea without significantly more.
Regarding dependent claims 2-7, 9-14 and 16-20, the claims are directed to the abstract idea of production planning and merely further limit the abstract idea claimed in independent claims 1, 8 and 15.
Claim 2 further limits the abstract idea by limiting the dollar cost value to include production cost, sales price, reduced value due to loss of freshness and membership loss (a more detailed abstract idea remains an abstract idea). Claim 3 further limits the abstract idea by obtaining scan data, generating an updated dynamic MP value, and generating an updated production plan (a more detailed abstract idea remains an abstract idea). Claims 4 and 10 further limits the abstract idea by obtaining label data, determining a number of instance, generating an updated dynamic MP and updating the production plan (a more detailed abstract idea remains an abstract idea). Claim 5 further limits the abstract idea by presenting the production plan via a user interface (a more detailed abstract idea remains an abstract idea, insignificant post solution activity). Claims 6, 12, 18, and 19 further limits the abstract idea by translating a predicted number of instances of unsold items and translate a predicted number of instances associated with lost sales (a more detailed abstract idea remains an abstract idea). Claims 7, 14, 17further limits the abstract idea by applying a first/second freshness penalty (a more detailed abstract idea remains an abstract idea). Claim 9 further limits the abstract idea by obtaining image data, analyzing image data, determining a number of instances, comparing the number of instances, updating the dynamic MP valued and generating an updated production plan (a more detailed abstract idea remains an abstract idea). Claim 11 further limits the abstract idea by obtaining scan data, analyzing the scan data, determining a number of instances, comparing the number of instances, updating the dynamic MP value and generating an updated production plan (a more detailed abstract idea remains an abstract idea). Claim 20 limits the abstract idea by customizing the dynamic MP value at the store level (a more detailed abstract idea remains an abstract idea).
None of the limitations considered as an ordered combination provide eligibility because taken as a whole the claims simply instruct the practitioner to apply the abstract idea to a generic computer.
Further regarding claims 1-20, Applicant’s specification discloses that the claimed elements directed to a system, processor, memory storing instructions, computer storage devices, computer at best merely comprise generic computer hardware which is commercially available (Specification: Figure 1). More specifically Applicant’s claimed features directed to a system do not represent custom or specific computer hardware circuits, instead the terms merely refers to commercially available software and/or hardware. Thus, as to the system recited, "the system claims are no different from the method claims in substance. The method claims recite the abstract idea implemented on a generic computer; the system claims recite a handful of generic computer components configured to implement the same idea." See Alice Corp. Pry. Ltd., 134 S.Ct. at 2360.
Accordingly, the claims merely recite manipulating data utilizing generic computer hardware (e.g. system, processor, memory storing instructions, computer storage devices, computer). Generic computers performing generic computer functions, alone, do not amount to significantly more than the abstract idea. Further the lack of detail of the claimed embodiment in Applicant’s disclosure is an indication that the claims are directed to an abstract idea and not a specific improvement to a machine.
Accordingly given the broadest reasonable interpretation and in light of the specification the claims are interpreted to include the process steps being performed by a human mind or via pen and paper. The claim limitations which recite a computer implemented method is at best recite generic, well-known hardware. However, the recited generic hardware simply performs generic computer function of storing, accessing, displaying or processing data. Generic computers performing generic, well known computer functions, alone, do not amount to significantly more than the abstract idea. Further the recited memories are part of every conventional general-purpose computer.
Applicant has not demonstrated that a special purpose machine/computer is required to carry out the claimed invention. A special purpose machine is now evaluated as part of the significantly more analysis established by the Alice decision and current 35 U.S.C. 101 guidelines. It involves/requires more than a machine only broadly applying the abstract idea and/or performing conventional functions.
Applicant’s specification discloses that the claimed elements directed to a system, processor, interface, component and memory merely comprise generic computer hardware which is commercially available (Specification: Figure 1). More specifically Applicant’s claimed features directed to a system and components do not represent custom or specific computer hardware circuits, instead the term system merely refers to commercially available software and/or hardware. Thus, as to the system recited, "the system claims are no different from the method claims in substance. The method claims recite the abstract idea implemented on a generic computer; the system claims recite a handful of generic computer components configured to implement the same idea." See Alice Corp. Pry. Ltd., 134 S.Ct. at 2360.
Accordingly, the claims are not patent eligible under 35 U.S.C. 101.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.1