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 .
Response to Arguments
Applicant's arguments filed with respect to the rejection made under §103 have been fully considered but are persuasive. The amendments overcome the rejection. The rejection is withdrawn.
Applicant's arguments filed with respect to the rejection made under § 101 have been fully considered but they are not persuasive.
Applicant argues that the amended claims are directed to a practical application constituting a technical improvement.
The problem highlighted in the Arguments is at the abstract layer of organizing human activities, not one borne out of technology. The problems noted in Specification do not highlight any failures of modern computers. These are business implementation problems and do not set forth any deficiencies that are particular to computer capabilities or any other technology. "In sum, 'software can make non-abstract improvements to computer technology just as hardware improvements can.' Enfish, 822 F.3d at 1335. But to be directed to a patent-eligible improvement to computer functionality, the claims must be directed to an improvement to the functionality of the computer or network platform itself." Customedia Techs., LLC v. Dish Network Corp., 951 F.3d 1359, 1365 (Fed. Cir. 2020) (emphasis added).
These elements are all abstract and when viewed in combination only amount to applying the abstract idea on generic computers. "Examiners evaluate integration into a practical application by: (1) identifying whether there are any additional elements recited in the claim beyond the judicial exception(s); and (2) evaluating those additional elements individually and in combination to determine whether they integrate the exception into a practical application…" MPEP 2106.04(d) II. (emphasis added).
Accordingly, the rejection is maintained.
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 non-statutory subject matter (a judicial exception without significantly more). Claims are eligible for patent protection under § 101 if they are in one of the four statutory categories and not directed to a judicial exception to patentability. Alice Corp. v. CLS Bank Int'l, 573 U.S. 208 (2014). Claims 1-20, each considered as a whole and as an ordered combination, are directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more.
Claim 1 recites a system. Claim 8 recites a method. Claim 15 recites a non-transitory computer-readable medium.
Step 2A, prong 1: Claim 8 recites the abstract idea of providing recommendations based on profile of an end-user. This idea is described by the following steps:
A method comprising:
receiving an image depicting a face of an end-user;
extracting facial characteristics from the image, the facial characteristics including at least skin tone information and facial feature geometry;
generating for an end-user a style profile,
analyzing the facial characteristics extracted from the image of the face of the end-user;
using the style profile of the end-user generating a plurality of product recommendations for the end-user;
Claims 1 and 15 recite equivalent limitations.
This idea falls into the certain methods of organizing human activity grouping of abstract ideas as it is directed towards commercial interactions including advertising, marketing or sales activities or behaviors (i.e., generate a style profile for an end-user).
Step 2A, prong 2: Claims 1 and 15 recite additional elements that fail to integrate the abstract idea into practical application.
Claims 1 and 15 recite a processor; a memory storage device and a non-transitory, computer-readable medium storing instructions that are executable by the one or more processors to cause the computing system to perform operations. However, these elements are generic computing components (see at least paragraphs 057-058) that are simply used to perform operations that would otherwise be abstract (see MPEP2106.05(f)).
Claims 1, 8 and 15 additionally recite using a machine-learned model, a color engine and a style profile engine. However, the machine-learned models, a color engine and a style profile engine are recited at a high level of generality and are merely used as tools to perform the process (i.e., determining a style profile of an end-user and provide recommendations) (see MPEP 2106.05(f)).
Step 2B: Claims 1, 8 and 15 fail to recite additional elements that amount to an inventive concept.
For the reasons identified with respect to Step 2A, prong 2, claims 1, 8 and 15 fail to recite additional elements that amount to an inventive concept. For example, use of a computer or other machinery in its ordinary capacity for economic or other tasks (e.g., to receive, store, or transmit data) or simply adding a general-purpose computer or computer components after the fact to an abstract idea (e.g., a fundamental economic practice or mathematical equation) does not integrate a judicial exception into a practical application or provide significantly more (see MPEP 2106.05(g)).
Presenting offers and gathering statistics, OIP Techs., 788 F.3d at 1362-63, 115 USPQ2d at 1092-93. For example, at least paragraph 107describes presenting an offer for an add-on order to be added to a primary order.
Dependent Claims Step 2A:
The limitations of the dependent claims merely set forth further refinements of the abstract idea identified at step 2A—Prong One, without changing the analysis already presented. Additionally, for the same reasons as above, the limitations fail to integrate the abstract idea into a practical application because they use the same general technological environment and instructions to implement the abstract idea as the independent claims identified at step 2A—Prong Two.
Dependent Claims Step 2B:
The dependent claims merely use the same general technological environment and instructions to implement the abstract idea. These do not amount to significantly more for the same reasons they fail to integrate the abstract idea into a practical application. Moreover, the Specification also indicates this is the routine use of known components for the same reasons presented with respect to the elements in the independent claims above.
Thus, when considering the combination of elements and the claimed invention as a whole, the claims are not patent eligible.
Allowable Subject Matter
Claims 1-20 would be allowable if rewritten or amended to overcome the rejection(s) under 35 U.S.C. 101, set forth in this Office action.
REASONS FOR ALLOWANCE
The following is an examiner’s statement of reasons for indicating allowable subject matter:
The prior art of record neither anticipates nor renders obvious the combination of:
receiving an image depicting a face of an end-user; using computer vision to extract facial characteristics from the image, the facial characteristics including at least skin tone information and facial feature geometry; combining output of a color engine with output of a style profile engine to generate for an end-user a style profile, wherein the color engine and style profile engine each analyze the facial characteristics extracted from the image of the face of the end-user; using the style profile of the end-user as input to a product recommendation engine to generate a plurality of product recommendations for the end-user; wherein the output of the color engine is a color palette determined based on the skin tone information extracted from the face of the end-user, and the output of the style profile engine is one of a pre-determined number of style profiles determined by a machine learning algorithm analyzing the facial feature geometry extracted from an image of a face of the end-user.
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 nonprovisional extension fee (37 CFR 1.17(a)) 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 mailing date of this final action.
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/MILA AIRAPETIAN/Primary Examiner, Art Unit 3688