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 .
The Applicant’s Preliminary amendment received on 10/02/2024 has been considered. It is noted that claims 1-30 have been amended. New claims 31 and 60 have been added.
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 31-60 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. Claims 31-60 are directed to an abstract idea of organizing human activity. The claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception as discussed below.
Step 1 of the 2019 Revised Patent Subject Matter
More specifically, regarding Step 1, of the 2019 Revised Patent Subject Matter Eligibility Guidance, the claims are directed to a method and system, which is a statutory category of invention.
Step 2a1 of the 2019 Revised Patent Subject Matter Eligibility Guidance
Next, the claims are analyzed to determine whether it is directed to a judicial exception.
The claims recite a judicial exception.
Claim 31 recites a computer program product comprising a non-transitory computer-readable medium having computer-executable code encoded therein, the computer-executable code adapted to be executed to implement a method, the method comprising:
(a) operating a system, the system comprising: (1) a streaming module; (2) a proposition module; and (3) an outcome module;
(b) transmitting to a plurality of users an electronic transmission of an electronic representation of a live sporting event by the streaming module, wherein the electronic transmission of the electronic representation of the live sporting event is synchronously delivered to each user of the plurality of users by the streaming module within a margin of error of about 100 milliseconds to about 250 milliseconds;
(c) receiving by the proposition module a proposition by a user of the plurality of users to compete against another user of the plurality of users, wherein the proposition is associated with a prediction regarding an outcome of the electronic transmission of the electronic representation of the live sporting event; and
(d) processing by the outcome module the electronic transmission of the electronic representation of the live sporting event to provide the outcome of the live sporting event.
Claim 46 recites a computer program product comprising a non-transitory computer-readable medium having computer-executable code encoded therein, the computer-executable code adapted to be executed to implement a method, the method comprising:
(a) operating a system, the system comprising: (1) a streaming module; (2) a proposition module; and (3) an outcome module;
(b) transmitting to a plurality of users an electronic transmission of an electronic representation of a live sporting event by the streaming module, wherein the electronic transmission of the electronic representation of the live sporting event is synchronously delivered to each user of the plurality of users by the streaming module within a margin of error of about 100 milliseconds to about 250 milliseconds;
(c) transmitting by the proposition module a proposition to the plurality of users to compete against one another, wherein the proposition is associated with a prediction regarding an outcome of the electronic transmission of the electronic representation of the live sporting event; and
(d) processing by the outcome module the electronic transmission of the electronic representation of the live sporting event to provide the outcome of the live sporting event.
The claim limitations (as underlined above) are steps of organizing human activity.
According to the 2019 Revised Patent Subject Matter Guidelines, Claims 31-60 set forth and/or describe an abstract idea under the grouping of certain methods of organizing human activity – fundamental economic principles or practices (including hedging, insurance, mitigating risk); commercial or legal interactions (including agreements in the form of contracts; legal obligations; advertising, marketing or sales activities or behaviors; business relations); managing personal behavior or relationships or interactions between people (including social activities, teaching, and following rules or instructions). For example, claim 31 describes an interface for users to compete with one another via a proposition. Claim 41 recites "the proposition is a wager." Claim 42 recites "determining by the outcome module a winner of the proposition." Claim 43 recites "wherein the system further comprises a banking module, wherein the method further comprises (f) granting by the banking module a prize to the winner of the proposition."
The claim limitations (as underlined) recite that a gaming application is initiated and a communication interface with a player is received. The steps of playing a wagering game and managing a wagering game is step of a fundamental economic principle or practice and also step of managing social activities. The abstract idea of organizing human activity includes managing interaction between people including social activities. Therefore, the claim recite an abstract idea of organizing human activity.
Accordingly, the full analysis for subject matter eligibility should have been performed for all of the claims.
Step 2a2 of the 2019 Revised Patent Subject Matter Eligibility Guidance
The second prong of step 2a is the consideration if the claim limitations are directed to a practical application.
Limitations that are indicative of integration into a practical application:
-Improvements to the functioning of a computer, or to any other technology or technical field - see MPEP 2106.05(a)
-Applying or using a judicial exception to effect a particular treatment or prophylaxis for a disease or medical condition – see Vanda Memo
-Applying the judicial exception with, or by use of, a particular machine - see MPEP 2106.05(b)
-Effecting a transformation or reduction of a particular article to a different state or thing - see MPEP 2106.05(c)
-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) and Vanda Memo
Limitations that are not indicative of integration into a practical application:
-Adding the words “apply it” (or an equivalent) with the judicial exception, or mere 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(f)
-Adding insignificant extra-solution activity to the judicial exception - see MPEP 2106.05(g)
-Generally linking the use of the judicial exception to a particular technological environment or field of use – see MPEP 2106.05(h)
Claims 1-20 do not apply a judicial exception to effect a particular treatment, and do not transform or reduce a particular article to a different state or thing.
Claims 1-20 are not directed to an improvement to a function of a computer. There is no improvement to a technical field. In addition, the claims do not apply the judicial exception with, or by use of a particular machine.
The claim recite one or more processors to perform the abstract idea of managing a game. As indicated in Applicant’s specification, the user device is a general purpose computer. Although not positively claimed as part of the claimed system, the claim indicates that that system is connected to a server, and databases. The server, database, are also used to implement the abstract idea in a computer embodiment. The use of a computer generally links the abstract idea to a particular technological environment. For the reasons as discussed above, the claim limitations are not integrated to a practical application.
Step 2b of the 2019 Revised Patent Subject Matter Eligibility Guidance
Next, the claim as a whole is analyzed to determine whether any element, or combination of elements, is sufficient to ensure that the claims amount to significantly more than the exception.
The claims recites additional limitation of a computer system. These limitations are not positively claimed to be part of the claimed system. Assuming that they were part of the claims system, these limitations in combination with the user terminal is used to transmit and storing (retrieving and providing steps, identify and display information (event information, location, selection options, prizes).
The courts have ruled that storing data in a database and retrieving data from a database is well-known conventional and routine functions of a computer as indicated below.
Electronic recordkeeping, Alice Corp. Pty. Ltd. v. CLS Bank Int'l, 573 U.S. 208, 225, 110 USPQ2d 1984 (2014) (creating and maintaining "shadow accounts"); Ultramercial, 772 F.3d at 716, 112 USPQ2d at 1755 (updating an activity log).
Storing and retrieving information in memory, Versata Dev. Group, Inc. v. SAP Am., Inc., 793 F.3d 1306, 1334, 115 USPQ2d 1681, 1701 (Fed. Cir. 2015); OIP Techs., 788 F.3d at 1363, 115 USPQ2d at 1092-93;
The steps of identifying events, identifying and displaying available outcomes, providing selection options, are steps of presenting offers. The courts have ruled that a computer to present offers is well-known, routine and convention, or insignificant extra solution activity.
Determining an estimated outcome and setting a price, OIP Techs., 788 F.3d at 1362-63, 115 USPQ2d at 1092-93; and the claim limitations individually and as a whole do not amount to amount to significantly more than an abstract idea.
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 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); 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 nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/process/file/efs/guidance/eTD-info-I.jsp.
Claims 31-60 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-26 of U.S. Patent No. 11,354,975. Although the claims at issue are not identical, they are not patentably distinct from each other because the independent claim 31 (for instance) of the instant application includes at least most of the limitations, aside from slight difference in wording, of the US patent 11,354,975 limitations (as evident in the comparison table below). Furthermore, one skilled in the art would understand and recognize that they both disclose similar limitations including a method of predictive gaming, the method comprising: transmitting by a computer system to a plurality of users an electronic representation of a live sporting event, wherein the transmitted electronic representation of the live sporting event is synchronously received by the plurality of users within a margin of error of a human reaction time; and receiving from a user of the plurality of users by the computer system a proposition to compete against a co-user of the plurality of users, wherein the proposition is associated with a prediction regarding an outcome of the live sporting event (see claim 1 of U.S. Patent No. 11,354,975).
The following claim chart shows the claim-to-claim comparison between independent claims 1 from both applications.
18/584,543
11,354,975
31. A computer program product comprising a non-transitory computer-readable medium having computer-executable code encoded therein, the computer-executable code adapted to be executed to implement a method, the method comprising:(a) operating a system, the system comprising: (1) a streaming module; (2) a proposition module; and (3) an outcome module;
(b) transmitting to a plurality of users an electronic transmission of an electronic representation of a live sporting event by the streaming module, wherein the electronic transmission of the electronic representation of the live sporting event is synchronously delivered to each user of the plurality of users by the streaming module within a margin of error of about 100 milliseconds to about 250 milliseconds;
(c) receiving by the proposition module a proposition by a user of the plurality of users to compete against another user of the plurality of users, wherein the proposition is associated with a prediction regarding an outcome of the electronic transmission of the electronic representation of the live sporting event; and (d) processing by the outcome module the electronic transmission of the electronic representation of the live sporting event to provide the outcome of the live sporting event.
1. A method of predictive gaming, the method comprising:
a) transmitting by a computer system to a plurality of users an electronic representation of a live sporting event, wherein the transmitting of the electronic representation of the live sporting event by the computer system to the plurality of users is synchronous within a margin of error of a human reaction time, wherein the transmitted electronic representation of the live sporting event is synchronously received by the plurality of users within a margin of error of a human reaction time;
b) receiving from a user of the plurality of users by the computer system a proposition to compete against a co-user of the plurality of users, wherein the proposition is associated with an outcome of the live sporting event, wherein the proposition is a wager; and c) receiving from the user of the plurality of users by the computer system a user prediction regarding the outcome of the live sporting event.
This is an obviousness-type double patenting rejection.
Claims 31-60 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-28 of U.S. Patent No. 11,948,422. Although the claims at issue are not identical, they are not patentably distinct from each other because the independent claim 31 (for instance) of the instant application includes at least most of the limitations, aside from slight difference in wording, of the US patent 11,948,422 limitations (as evident in the comparison table below). Furthermore, one skilled in the art would understand and recognize that they both disclose similar limitations including a method of predictive gaming, the method comprising: transmitting by a computer system to a plurality of users an electronic representation of a live sporting event, wherein the transmitted electronic representation of the live sporting event is synchronously received by the plurality of users within a margin of error of a human reaction time; and receiving from a user of the plurality of users by the computer system a proposition to compete against a co-user of the plurality of users, wherein the proposition is associated with a prediction regarding an outcome of the live sporting event (see claim 1 of U.S. Patent No. 11,948,422).
The following claim chart shows the claim-to-claim comparison between independent claims 1 from both applications.
18/584,543
11,948,422
31. A computer program product comprising a non-transitory computer-readable medium having computer-executable code encoded therein, the computer-executable code adapted to be executed to implement a method, the method comprising:(a) operating a system, the system comprising: (1) a streaming module; (2) a proposition module; and (3) an outcome module;
(b) transmitting to a plurality of users an electronic transmission of an electronic representation of a live sporting event by the streaming module, wherein the electronic transmission of the electronic representation of the live sporting event is synchronously delivered to each user of the plurality of users by the streaming module within a margin of error of about 100 milliseconds to about 250 milliseconds;
(c) receiving by the proposition module a proposition by a user of the plurality of users to compete against another user of the plurality of users, wherein the proposition is associated with a prediction regarding an outcome of the electronic transmission of the electronic representation of the live sporting event; and (d) processing by the outcome module the electronic transmission of the electronic representation of the live sporting event to provide the outcome of the live sporting event.
1. A method of predictive gaming, the method comprising:
a) transmitting by a computer system to a plurality of users an electronic representation of a live sporting event, wherein the transmitted electronic representation of the live sporting event is synchronously received by the plurality of users within a margin of error of a human reaction time; and
b) receiving from a user of the plurality of users by the computer system a proposition to compete against a co-user of the plurality of users, wherein the proposition is associated with a prediction regarding an outcome of the live sporting event.
This is an obviousness-type double patenting rejection.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Svennebring et al discloses link performance prediction and media streaming technologies; Pecjak et al discloses projecting person-level viewership from household-level tuning events; Marks et al discloses system and method of betting on a sporting event which awards pay outs based on the difference between the actual and predicted results.
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/ADETOKUNBO O TORIMIRO/Primary Examiner, Art Unit 3715