DETAILED ACTION
Status of Claims
The present application, filed on or after 3/16/2013, is being examined under the first inventor to file provisions of the AIA .
This action is in reply to the Remarks and Amendments filed 02/06/2026.
Claims 1-70, 72, 76, 77, 82, 86, 87 have been canceled.
Claims 71, 73, 74, 75, 78, 79, 80, 81, 83, 84, 85 have been amended.
Claims 88-90 are newly added.
Claims 71, 73-75, 78-81, 83-85, 88-90 have been examined and are pending.
Continuation
This application is a continuation application of U.S. Patent Application No. 17/243,254 filed on 04/28/2021 (“Parent Application”). See MPEP §201.07. In accordance with MPEP §609.02 A.2 and MPEP §2001.06(b) (last paragraph), the Examiner has reviewed and considered the prior art cited in the Parent Application. Also, in accordance with MPEP §2001.06(b) (last paragraph), all documents cited or considered ‘of record’ in the Parent Application are now considered cited or ‘of record’ in this application. Additionally, Applicant(s) are reminded that a listing of the information cited or ‘of record’ in the Parent Application need not be resubmitted in this application unless Applicants desire the information to be printed on a patent issuing from this application. See MPEP §609.02 A.2. Finally, Applicants are reminded that the prosecution history of the Parent Application is relevant in this application. See e.g., Microsoft Corp. v. Multi-Tech Sys., Inc., 357 F.3d 1340, 1350, 69 USPQ2d 1815, 1823 (Fed. Cir. 2004) (holding that statements made in prosecution of one patent are relevant to the scope of all sibling patents).
Priority
Applicant’s claim for the benefit of a prior-filed application under 35 U.S.C. 119(e) or under 35 U.S.C. 120, 121, or 365(c) is acknowledged. The Examiner respectfully agrees the presently claimed features have priority to originally-filed provisional Application No. 63/068,743.
(AIA ) Examiner Note
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned at the time any inventions covered therein were effectively filed absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned at the time a later invention was effectively filed in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention
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 71, 73-75, 78-81, 83-85, 88-90 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea (i.e. a judicial exception) without significantly more.
Per step 1 of the Subject Matter Eligibility Guidance outlined in the MPEP 2106, the claims are directed towards a process, machine, or manufacture.
Per step 2A Prong One, the claims recite specific limitations which fall within at least one of the groupings of abstract ideas enumerated in MPEP 2106, as follows:
Per Independent claims 71 and 81 (exemplified in limitations of claim 71):
…determine scores for a plurality of products by: …
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As noted supra, these limitations fall within at least one of the groupings of abstract ideas enumerated in the 2019 PEG. Specifically, these limitations fall within the group Mathematical Concepts (e.g. mathematical relationships; mathematical formulas or equations; mathematical calculations), Mental Processes (concepts performed in the human mind including an observation, evaluation, judgment, opinion), and Certain Methods Of Organizing Human Activity (e.g. 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).
That is, the “transforming the KPI values to z-scores based on respective ones of the average values and standard deviation values for respective ones of the KPI values” is merely applying known statistical methods (i.e. math to calculate Z-scores) to gathered data (i.e. the KPI values) to be used for business analysis and therefore falls squarely within Mathematical Concepts and/or Mental Processes (as such calculations could be done in the mind or with pen and paper).
The steps of “based on the scores, cause a first product of the plurality of products to be added to a physical location associated with the first retailer” is nothing more than business decision regarding when to supply a product where the decision is based on statistics – i.e. the Z-scores. Note that per the Specification the Z-scores for product sales data is according to an arbitrary metric according to applicant’s own proprietary TDP calculation (which is not a term of art at the time of filing but instead must be viewed as some generic characterization of marketing and sales data – see Specification at pg. 16 Tables 4 and Table 5 as noted per previous Non-Final Rejection). Again, there is no technical solution being presented and no technical problem being solved here and these features fall squarely into Certain Methods Of Organizing Human Activity.
The steps of “create permutations based on historical 5th and 95th percentile of price gaps for a pair of products, each product in the pair of products associated with a different brand; execute models on the permutations to determine performance at each price gap; perform Monte Carlo simulations based on the modeled performances at each price gap to identify a profit maximizing point for the first product; execute a machine learning model to identify statistically significant price points where volume deviates from the expected model volume for the first product” is all generic mathematical calculations recited at a very high level of generality following well-established principles for trading (e.g. determining price point of a product in a given market), e.g. using the 5% and 95% percentiles as "fixed nodes" to build permutations of potential price action. In trading systems, ordinal patterns (permutations of price sequences) are used to describe market order. For example, in creating Boundary-Cross Scenarios: a generic model may be Permutation A (Mean Reversion): Price gaps to P95 moves toward the mean. Permutation B (Trend Continuation): Price gaps to P95 maintains level or expands further. Permutation C (Gap Fill): Price gaps to P05 retraces to fill the empty space. Then implement generic Monte Carlo Simulations pertaining to this generic model which will identify a point which can be interpreted as a “profit maximizing point” but is only theoretical in nature; e.g. Randomly pick N returns from your historical stream and then aggregate them to see where they land relative to your P05 and P95 distribution. The P05 and P95 values may also be used as dynamic markers for exit points. The applicant has not invented a machine learning model and therefore this can only be interpreted as implementing an abstract concept with the wish or hope of identify statistically significant price points where volume deviates from the expected model volume for the first product. Therefore, all of these features fall squarely into Certain Methods Of Organizing Human Activity and/or Mathematical Concepts.
The steps: “…cause a price of the first product to be updated based on the profit maximization point and the statistically significant price points: and cause broadcast of an advertisement including the updated price for the first product.” Are both business decisions and not technical in nature. A business simply decides that a price of a product should be updated based on an undisclosed relationship between the generic Monte Carlo simulation output (i.e. applicant’s so-called profit maximization point) and the “statistically significant price points” given per the generic undisclosed machine learning model all of which falls squarely within Certain Methods Of Organizing Human Activity. Finally, advertising a price of a product also falls squarely within Certain Methods Of Organizing Human Activity.
Again, at the extremely high level of generality as claimed herein, there is no technical solution and no technical problem being solved.
Furthermore, the mere nominal recitation of a generic computer components (e.g. an apparatus comprising: interface circuity to acquire real-time sales data…; and at least on processor circuit to be programmed) does not take the claim limitation out of the enumerated grouping. Thus, the claims recite an abstract idea.
Per step 2A Prong 2, the Examiner finds that the judicial exception is not integrated into a practical application. Although there are additional elements, other than those noted supra, recited in the claims, none of these additional element(s) or a combination of elements as recited in the claims apply, rely on, or use the judicial exception in a manner that imposes a meaningful limit on the judicial exception, such that it is more than a drafting effort designed to monopolize the exception. As drafted, the claims as a whole merely describe how to generally “apply” the aforementioned concepts using generic computer components, “link” them to a field of use (i.e. in this case sales and marketing data analysis), or serve as insignificant extra-solution activity (data-gathering, collection, storage, and transmittal). The claimed computer components are recited at a high level of generality and are merely invoked as tools to implement the idea but are not technical in nature. Simply implementing the abstract idea on or with generic computer components is not a practical application of the abstract idea.
These additional limitations (exemplified in the limitations of claim 71) are as follows: “An apparatus comprising: interface circuitry; machine-readable instructions; and at least one processor circuit to be programmed by the machine-readable instructions to: cause the interface circuitry to transmit a query to obtain real-time sales data:… extracting key performance indicator (KPI) values based on the real-time sales data, first ones of the KPI values associated with a first retailer and second ones of the KPI values associated with a plurality of rest-of-market (ROM) retailers, the KPI values including cost data for respective ones of the plurality of products…”
However, these elements do not present a technical solution to a technical problem; i.e. Applicant’s invention is not a technique nor technical solution for “extracting KPIs” (i.e. mere data-gathering and collection). The additional elements do not recite a specific manner of performing any of the steps core to the already identified abstract idea. Instead, these features merely serve to generally “apply” the aforementioned concepts using generic “processor” from “the networked database”, or “link” them to a field of use (i.e. sales and marketing data analysis), and are insignificant extra-solution activity (i.e. the mere gathering of data upon which analysis is to be performed) as relates to the already identified abstract idea and do not integrate the abstract idea into a practical application thereof.
Per Step 2B, the Examiner does not find that the claims provide an inventive concept, i.e., the claims do not recite additional element(s) or a combination of elements that amount to significantly more than the judicial exception recited in the claim. As discussed with respect to Step 2A Prong Two, the additional elements in the independent claims were considered as merely serving to “link” the idea to a field of use, or “apply” the idea via generic computing components, or insignificant extra-solution activity. For the same reason these elements are not sufficient to provide an inventive concept; i.e. the same analysis applies here in 2B. Mere instructions to apply an exception using a generic computer component and conventional data gathering cannot integrate a judicial exception into a practical application at Step 2A or provide an inventive concept in Step 2B. So, upon revaluating here in step 2B, these elements are determined to amount to no more than mere instructions to apply the exception using generic computer components (i.e. a server) and/or gather and transmit data which is well-understood, routine, conventional activity in the field; i.e. note the Symantec, TLI, and OIP Techs Court decisions cited in MPEP 2106.05(d)(ll) indicate that mere receipt or transmission 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).
Accordingly, alone and in combination, these elements do not integrate the abstract idea into a practical application, as found supra, nor provide an inventive concept, and thus the claims are not patent eligible.
As for the dependent claims, the dependent claims do recite a combination of additional elements. However, these claims as a whole, considered either independently or in combination with the parent claims, do not integrate the identified abstract idea into a practical application thereof nor do they provide an inventive concept.
For example, dependent claims 73 recites the following: “…determine the scores based on one or more of first product velocity metrics, first product growth metrics, or retailer share metrics.” However, description of the meaning of the KPI values upon which statistical Z-scores are calculated is not significantly more than the already recited abstract ideas; i.e. this description provides context but applicant has not invented such metrics nor the math and statistics recited for transforming these KPI values into the statistical Z-scores.
Therefore, the Examiner does not find that these additional claim limitations integrate the abstract idea into a practical application nor provide an inventive concept. Instead, these limitations, as a whole and in combination with the already recited claim elements of the parent claims, are not significantly more than the already identified abstract idea. A similar finding is found for the remaining dependent claims.
For these reasons, the claims are not found to include additional elements that are sufficient to amount to significantly more than the judicial exception and therefore the claims are not found to be patent eligible.
Please see the 2019 Revised Patent Subject Matter Eligibility Guidance published in the Federal Register (84 FR 50) on January 7, 2019 (found at http://www.uspto.gov/patent/laws-and-regulations/examination-policy/examination-guidance-and-training-materials).
Response to Arguments
Applicant amended claims 71, 73, 74, 75, 78, 79, 80, 81, 83, 84, 85 and added new claims 88-90 on 02-06-2026. Applicant's arguments (hereinafter “Remarks”) also filed 02-06-2026, have been fully considered but are moot in view of the new grounds of rejection necessitated by applicant’s amendments. Note the new 35 35 USC 101 rejections. Also note 35 USC 103 rejection has respectfully been withdrawn.
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 1.136(a).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MICHAEL J SITTNER whose telephone number is (571)270-3984. The examiner can normally be reached M-F; ~9:30-6:30. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Waseem Ashraf can be reached on (571) 270-3948. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Michael J Sittner/
Primary Examiner, Art Unit 3621
Prosecution Insights