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 .
Claims Status
Claims 1, 3, 6, 10, 14 and 18 have been amended.
Claims 2, 4, 5, 11-13, 15, 17 and 20 have been cancelled.
Claims 21-23 have been newly added.
Claims 1, 3, 6-10, 14, 16, 18-19 and 21-23 are currently pending and rejected.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 6/18/2025 is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement has been considered by the examiner.
Response to Arguments
35 USC 112(b) rejection
Applicant’s amendments cancelling claim 20 have rendered the previous rejection under 35 USC 112(b) moot. The rejection under 35 USC 112(b) has been withdrawn.
35 USC 101 rejection
Applicant's arguments with respect to the rejection of claims 1-20 under 35 USC 101, as being directed to a judicial exception, have been fully considered but are not persuasive, in view of the accompanying amendments and in view of MPEP 2106. The rejection under 35 USC 101 is explained in further detail below.
Examiner appreciates Applicant’s inclusion of additional limitations, however, the Examiner asserts that even with the inclusion of additional features, the claims remain abstract and directed to a judicial exception. As written, the claims merely set forth a process for providing product information, which is considered to be an abstract idea as it relates to ‘certain methods of organizing human activity,’ namely marketing or sales activities or behaviors.
Examiner reiterates that although claims 1 and 14 may use technology (i.e. processors, earbuds, etc.) to perform steps related to solving a problem, the claim does not amount to a ‘technical improvement’ as the technology (i.e. a computer or other machinery) is merely used in its ordinary capacity for economic or other tasks (e.g., to store, receive and transmit data). Further clarification with regards to the technical nature of the determination or comparison of gaze direction may assist with the analysis of these claims.
The additional elements are merely recited at a high level of generality and amount to little more than the mere instructions to implement an abstract idea on a computer or similar hardware. Further, these elements represent little more than a general link to a technological environment (i.e. a mere attempt to restrict use of the idea to a technical environment such as the Internet or computer networks – see Ultramercial, Inc. v. Hulu, LLC) as currently written. In each case, the courts have found such limitations insufficient to qualify as “significantly more” when recited in a claim with a judicial exception (see MPEP 2106.05(A)).
As written, the claims fail to be significantly more than the abstract idea because the claims use a computer or other machinery in its ordinary capacity for economic or other tasks or simply add a general purpose computer or computer components (i.e. recommendation engine) after the fact to an abstract idea. Therefore, the claims continue to be viewed as examples of an abstract idea without significantly more and thus lack subject matter eligibility.
Additionally, where certain dependent claims rely upon similar additional elements as recited in claims 1 and 14 these do not result in significantly more than the abstract idea itself. The additional elements of the dependent claims are treated at least similarly as those discussed above with respect to claims 1 and 14.
Even when viewed as an ordered combination, the dependent claims simply convey the abstract idea itself applied on a generic computer and are held to be ineligible under Steps 2A/2B of the Mayo framework at least similar rationale as discussed above regarding claims 1 and 14.
In view of the above, the Examiner concludes that there are no meaningful limitations in the claim that transform the judicial exception into a patent eligible application such that the claim amounts to significantly more than the judicial exception itself.
The analysis above applies to all statutory categories of invention. For at least these reasons above, the rejections under 35 USC 101 have been maintained and are explained in further detail below.
35 USC 103 rejection
Applicant’s arguments with respect to the previous rejection of claims 1-20 under 35 USC 103 have been fully considered and are persuasive, in view of the accompanying amendments. The claim rejections have been withdrawn and the claims are indicated allowable, as set forth below.
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, 3, 6-10, 14, 16, 18-19 and 21-23 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.
Step 1:
Claims 1, 3 and 6-10 are directed to a method, which is a process. Claims 14, 16, 18-19 and 21-23 are directed to a system, which is a machine. Therefore, claims 1, 3, 6-10, 14, 16, 18-19 and 21-23 are directed to one of the four statutory categories of invention.
Step 2A (Prong 1):
Taking claim 1 as representative, claim 1 sets forth the following limitations which recite the abstract idea of providing product information:
receiving location data of a user as the user travels within a facility;
receiving from each earbud in a pair of earbuds worn by the user, sensor data corresponding to an orientation of each respective earbud;
determining based on the received sensor data, gaze directions of the user as the user travels within the facility;
determining one or more products viewed by the user while traveling within the facility by comparing, using a content map of the facility, the gaze directions of the user to product locations storing products, wherein comparing the gaze directions of the user to the product locations comprises:
for one or more of the gaze directions:
determining, from the location data, a location of the user when the gaze direction was determined; and
determining whether rays from the location of the user in the gaze direction intersect products of the product locations, wherein the one or more products are the products the respective rays intersect; and
generating, by the one or more processors, the context data based on the one or more products.
The recited limitations as a whole set forth the process for providing product information. These limitations amount to certain methods of organizing human activity, including commercial or legal interactions (e.g. advertising, marketing or sales activities or behaviors).
Such concepts have been identified by the courts as abstract ideas (see: MPEP 2106).
Step 2A (Prong 2):
Examiner acknowledges that representative claim 1 does recite additional elements, such as one or more processors, etc.
Taken individually and as a whole, claim 1 does not integrate the recited judicial exception into a practical application of the exception. The claim merely includes instruction to implement an abstract idea on a computer, or to merely use a computer as a tool to perform an abstract idea, while the additional elements do no more than generally link the use of a judicial exception to a particular field of technological environment or field of use.
Furthermore, this is also because the claim fails to (i) reflect an improvement in the functioning of a computer, or an improvement to other technology or technical field, (ii) implement a judicial exception with a particular machine, (iii) effect a transformation or reduction of a particular article to a different state or thing, or (iv) apply the judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment.
In view of the above, under Step 2A (Prong 2), claim 1 does not integrate the recited exception into a practical application (see again: MPEP 2106).
Step 2B:
When taken individually or as a whole, the additional elements of claim 1 do not provide an inventive concept (i.e. whether the additional elements amount to significantly more than the exception itself). As discussed above with respect to integration of the abstract idea into a practical application, the additional element of using a computer device to perform the receiving and determining steps amounts to no more than mere instructions to apply the exception using a generic computer component. Mere instructions to apply an exception using a generic computer component cannot provide an inventive concept. Certain additional elements also recite well-understood, routine, and conventional activity (See MPEP 2106.05(d)).
Even when considered as an ordered combination, the additional elements of claim 1 do not add anything further than when they are considered individually.
In view of the above, claim 1 does not provide an inventive concept under step 2B, and is ineligible for patenting.
Dependent claims 3 and 6-10 recite further complexity to the judicial exception (abstract idea) of claim 1, such as by further defining the process for providing product information. Thus, each of claims 3 and 6-10 are held to recite a judicial exception under Step 2A (Prong 1) for at least similar reasons as discussed above.
Therefore, dependent claims 3 and 6-10 do not add “significantly more” to the abstract idea. The dependent claims recite additional functions that describe the abstract idea and only generally link the abstract idea to a particularly technological environment, and applied on a generic computer. Further, the additional limitations fail to provide an improvement to the functioning of the computer, another technology, or a technical field.
Even when viewed as an ordered combination, the dependent claims simply convey the abstract idea itself applied on a generic computer and are held to be ineligible under Steps 2A/2B for at least similar rationale as discussed above regarding claim 1.
The analysis above applies to all statutory categories of invention. Regarding independent claim 14 (system), the claim recites substantially similar limitations as set forth in claim 1. As such, claim 14 and its dependents 16, 18-19 and 21-23 are rejected for at least similar rationale as discussed above.
Potentially Allowable Subject Matter
Claims 1, 3, 6-10, 14, 16, 18-19 and 21-23 are allowable over the prior art, though the rejection under 35 USC 101 still applies. The following is an examiner’s statement of reasons for allowance:
Upon review of the evidence at hand, it is hereby concluded that the totality of the evidence, alone or in combination, neither anticipates, reasonably teaches, nor renders obvious the below noted features of the applicant's invention. Claims 1, 3, 6-10, 14, 16, 18-19 and 21-23 are allowable as follows:
The most relevant prior art made of record includes Tome et al. (U.S. Pre-Grant Publication No. 2021/0377648) (“Tome”), in view of Zhu et al. (U.S. Pre-Grant Publication No. 2021/0341292) (“Zhu”). While the prior art teaches many of the limitations of claims 1, 16 and 20, the prior art fails to teach comparing the gaze directions of the user to the product locations comprises: for one or more of the gaze directions: determining, from the location data, a location of the user when the gaze direction was determined; and determining whether rays from the location of the user in the gaze direction intersect products of the product locations, wherein the one or more products are the products the respective rays intersect.
Additionally, PTO Form 892-U, the article “Par: Personal activity radius camera view for contextual sensing” discloses a variety of solutions within the arena of shopping and user gaze detection. Although the article discusses the use of various devices and techniques for user gaze detection in a brick-and-mortar environment, the article fails to disclose the use of sensors within earbuds to determine gaze direction and the comparison of gaze direction to product location, as is required by the present claims. Therefore, PTO-Form 892-U does not render the claimed invention novel or non-obvious.
The examiner further emphasizes the claims as a whole and hereby asserts that the totality of the evidence fails to set forth, either explicitly or implicitly, an appropriate rationale for further modification of the evidence at hand to arrive at the claimed invention. The combination of features as claimed would not have been obvious to one of ordinary skill in the art as combining various references from the totality of the evidence to reach the combination of features as claimed would require a substantial reconstruction of the Applicant's claimed invention relying on improper hindsight bias.
It is thereby asserted by the examiner that, in light of the above and in further deliberation over all the evidence at hand, that the claims are allowable as the evidence at hand does not anticipate the claims and does not render obvious any further modification of the references to a person of ordinary skill in the art.
Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.”
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANAND LOHARIKAR whose telephone number is 571-272-8756. The examiner can normally be reached Monday-Friday, 9am-5pm.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Marissa Thein can be reached at 571-272-6764. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ANAND LOHARIKAR/Primary Examiner, Art Unit 3689