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 21-42 have been examined.
Claim Objections
Claims 21-32 are objected to because of the following informalities: In the eighth line of claim 21, “one or more purchasable item” should be “one or more purchasable items”. Appropriate correction is required.
Claims 33-42 are objected to because of the following informalities: In the eighth line of claim 33, “one or more purchasable item” should be “one or more purchasable items”. Appropriate correction is required
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 21-42 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception (abstract idea) without significantly more. The claim recite an abstract idea in the field of commercial interactions. This judicial exception is not integrated into a practical application. The claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception.
The following 35 U.S.C. 101 analysis is performed in accordance with section 2106 of the Manual of Patent Examination Procedure (concerning Patent Subject Matter Eligibility Guidance). First, it is determined that the claims are directed to a statutory category of invention. See MPEP 2106.03 (II). In the instant case, claims 21-32 are directed to a method, in the statutory category of process. Claims 33-42 are directed to a non-transitory machine-readable medium having stored thereon machine-readable instructions to cause a machine to perform operations, in the statutory category of article of manufacture. Therefore, claims 21-42 are directed to statutory subject matter under Step 1 of the Alice/Mayo test. (Step 1: YES for all claims 21-42).
The claims are then analyzed to determine whether the claims are directed to a judicial exception. See MPEP 2106.04. The claims are analyzed to evaluate whether they recite a judicial exception (Step 2A, Prong One) as well as analyzed to evaluate whether the claims recite additional elements that integrate the judicial exception into a practical application of the judicial exception (Step 2A, Prong Two). See MPEP 2106.04.
In the instant case, applying Step 2A, Prong One, the claims are directed to a method of obtaining a grocery order, and to a corresponding non-transitory machine-readable medium. Hence, the claims are directed to commercial interactions, a form of abstract idea in the category of Certain Methods of Organizing Human Activity. (Step 2A, Prong One: YES)
Next, under Step 2A, Prong Two, the claims are analyzed for limitations that are indicative of integration into a practical application. Representative claim 21 recites:
A computer-implemented method of obtaining a grocery order, from a customer via a customer computing device, wherein grocery orders are constrained according to a set of constraint rules that direct and/or constrain the grocery orders, the method comprising:
receiving a commitment message from the customer, via the customer computing device, to complete a grocery order;
in response to receiving the commitment message, generating a first representation of a first grocery bundle to be presented to the customer, wherein the first grocery bundle comprises one or more purchasable item[s], wherein the first grocery bundle is a member of a set of grocery bundles selectable by the customer in which at least one member of the set comprises a plurality of purchasable items;
signaling to the customer computing device for the first representation of the first grocery bundle to be presented as a first presentation to the customer in sequence for a first predetermined duration;
monitoring for a first selection input by the customer, wherein prior to an end of the first predetermined duration, if the first selection is not provided by the customer during the first predetermined duration, removing the first grocery bundle from the set of grocery bundles selectable by the customer;
generating a second representation of a second grocery bundle to be presented to the customer for a second predetermined duration following the first predetermined duration, whereby the customer is constrained during the second predetermined duration from making a selection of the first grocery bundle;
signaling to the customer computing device for the second representation of the second grocery bundle to be presented as a second presentation to the customer in sequence for a second predetermined duration;
monitoring for a second selection input by the customer, wherein prior to an end of the second predetermined duration, if the second selection is not provided by the customer during the second predetermined duration, removing the second grocery bundle from the set of grocery bundles selectable by the customer; and
graphically varying a presentation to the customer visually conveying to the customer that, for at least one predetermined duration, a presentation sequence will end and a final selection will be made for the customer if no prior selection is made by the customer during a set of predetermined durations that includes the first predetermined duration and the second predetermined duration.
Claim 21 does not recite any of the specific limitations indicative of integration into a practical application, and does not otherwise apply or use the judicial exception in a 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 to monopolize the judicial exception. A customer computing device is recited in claim 21, as are operations such as receiving, signaling, and monitoring, but only at a high level of abstraction. Giving a customer a predetermined duration of time to select a particular product, or a particular grocery bundle, could be performed in a face-to-face marketplace without computer or telecommunications technology. The claims depending from claim 21 likewise do not apply or use the judicial exception in a meaningful way beyond generally linking the use of the judicial exception to a particular technological environment, and the same applies to parallel independent claim 33, and the claims depending from claim 33. (Step 2A, Prong Two: NO)
Next, under Step 2B of the Alice/Mayo test, the claims are analyzed to determine whether there are additional claim limitations that individually, or as an ordered combination, ensure that the claims amount to significantly more than the abstract idea. See MPEP 2106.05. The analysis performed in accordance with Step 2A, Prong Two is also applied in the Step 2B analysis, and with the same result; there is also the issue of whether the claims recite specific limitations other than what is well-understood, routine, and conventional in the art.
Independent claim 21, as set forth above, recites a customer computing device. Avidan et al. (U.S. Patent Application Publication 2017/0193592) discloses (paragraph 25, emphasis added), “Although not illustrated, it should be appreciated that the ecommerce server 110, the merchant computer 120, and the customer computer 130 each include conventional components, such as a processor and a memory medium storing computer-readable instructions that are executable by the processor to perform various operations including those described herein.” The conventional nature of the computer components indicates that computers incorporating such components are, or can be, conventional in themselves.
The courts have recognized the following computer functions as well-understood, routine and conventional functions when they are claimed in a merely generic manner (e.g., at a high level of generality) or as insignificant extra-solution activity: Receiving or transmitting data over a network, e.g., using the Internet to gather data, Symantec, 838 F.3d at 1321, 120 USPQ2d at 1362 (utilizing an intermediary computer to forward information); TLI Communications LLC v. AV Auto. LLC, 823 F.3d 607, 610, 118 USPQ2d 1744, 1745 (Fed. Cir. 2016) (using a telephone for image transmission); OIP Techs., Inc., v. Amazon.com, Inc., 788 F.3d 1359, 1363, 115 USPQ2d 1090,1093 (Fed. Cir. 2015) sending messages over a network); buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355, 112 USPQ2d 1093, 1096 (Fed. Cir. 2014) (computer receives and sends information over a network). Hence, the operations of receiving, signaling, and monitoring for what may be transmitted require only the use of well-understood, routine, and conventional functions and technology. The generating step and the step of varying a presentation need not be in themselves technological.
Yet further, Burke, JR. et al. (U.S. Patent Application Publication 2013/0188213) discloses (paragraph 41, emphasis added), “In instances where the operating interface 210 may be a locally accessible user interface, the operating interface 210 may be configured as one or more conventional mechanisms common to computing devices that permit a user to input information to exemplary remote monitoring system 200.” Hence the monitoring and the input of a first selection need involve only the use of well-understood, routine, and conventional functions and technology. The limitations of claim 21, whether considered separately or in combination, do not raise the claimed method to significantly more than an abstract idea.
Claim 22, which depends from claim 21, recites that signaling to the customer comprises generating HTML code and sending the HTML code to the customer computing device for generating a browser rendering. Urban (U.S. Patent Application Publication 2001/0042079) discloses (paragraph 10, emphasis added), “FIG. 1 illustrates a browser 20 running as an application program or operating system component on a computer 22. The browser is configured in the conventional fashion to display web pages based on HTML code sent from a server 24 over a suitable computer network 26, such as the Internet.” Hence, sending the HTML code to the customer computing device for generating a browser rendering would require only the use of well-understood, routine, and conventional functions and technology; and given this, the generating of HTML code would also have to have been well-understood, routine, and conventional. The limitations of claim 22, whether considered separately or in combination with each other and with the limitations of claim 21, do not raise the claimed method to significantly more than an abstract idea.
Claims 23 through 31, which depend directly or indirectly from claim 21, do not add significant technology not already recited in claim 21. Hence, the limitations of claims 23 through 31, whether considered separately or in combination with each other and with those of claim 21, do not raise the claimed method to significantly more than an abstract idea.
Independent claim 33 is parallel to claim 21, and therefore, largely on the same grounds set forth above with regard to claim 21, the limitations of claim 33 do not raise the claimed method to significantly more than an abstract idea. Claim 33 additionally recites a non-transitory machine-readable medium having stored thereon machine-readable instructions to cause a machine to perform operations. Avidan et al. (U.S. Patent Application Publication 2017/0193592) discloses (paragraph 25, emphasis added), “Although not illustrated, it should be appreciated that the ecommerce server 110, the merchant computer 120, and the customer computer 130 each include conventional components, such as a processor and a memory medium storing computer-readable instructions that are executable by the processor to perform various operations including those described herein. The computer-readable instructions can be stored on non-transitory computer-readable storage media of a conventional type, whether devices and/or materials.” Hence, the non-transitory machine-readable medium having stored thereon machine-readable instructions to cause a machine to perform operations requires only the use of well-understood, routine, and conventional technology. Avidan, Burke, and the judicial precedents cited above with regard to claim 21 also apply to claim 33. Therefore, the limitations of claim 21, whether considered separately or in combination, do not raise the claimed non-transitory machine-readable medium to significantly more than an abstract idea.
Claim 34, which depends from claim 33, is parallel to claim 22, and Urban (U.S. Patent Application Publication 2001/0042079) is therefore applied to claim 34 as it was applied above to claim 22. Hence, generating and sending the HTML code to the customer computing device for generating a browser rendering would require only the use of well-understood, routine, and conventional functions and technology. The limitations of claim 34, whether considered separately or in combination with each other and with the limitations of claim 21, do not raise the claimed non-transitory machine-readable medium to significantly more than an abstract idea.
Claims 35 through 42, which depend directly or indirectly from claim 33, do not recite significant technology not already recited in claim 33. Hence, the limitations of claims 35 through 42, whether considered separately or in combination with each other and with those of claim 35, do not raise the claimed non-transitory machine-readable medium to significantly more than an abstract idea. (Step 2B, for claims 21-42: NO)
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 filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual 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/apply/applying-online/eterminal-disclaimer.
Claims 21 and 32 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 2, and 7 of U.S. Patent No. 12.008,615. Although the claims at issue are not identical, they are not patentably distinct from each other because claim 21 of the instant application is phrased differently from claim 1 of the ‘615 patent, but corresponds essentially to a broader version thereof, except for the narrow limitation “grocery bundle” in lieu of “item”. However, claim 2 of the ‘615 patent recites that the item comprises a grocery bundle. Claim 21 of the instant application explicitly recites generating first and second representations of first and second grocery bundles, which claim 1 of the ‘615 patent does not; however, claim 1 of the ‘615 patent recites, “representing each item of the plurality of items individually in sequence for a predetermined duration before showing another image representing another item from the plurality of items to the user”, which inherently implies first and second items.
Claim 32 of the instant application recites “wherein the first presentation comprises a countdown clock”, corresponding to the language of claim 7 of the ‘615 application, “wherein an image process comprises displaying a countdown clock”.
Claim 33 is rejected on the ground of nonstatutory double patenting as being unpatentable over claims 15 and 16 of U.S. Patent No. 12,008,615. Although the claims at issue are not identical, they are not patentably distinct from each other because claim 33 of the instant application is phrased differently from claim 15 of the ‘615 patent, but corresponds essentially to a broader version thereof, except for the narrow limitation “grocery bundle” in lieu of “item”. However, claim 16 of the ‘615 patent recites, “wherein the item comprises a grocery bundle.” Claim 33 of the instant application explicitly recites generating first and second representations of first and second grocery bundles, which claim 15 of the ‘615 patent does not; however, claim 15 of the ‘615 patent recites, “representing each item of the plurality of items individually in sequence for a predetermined duration before showing another image representing another item from the plurality of items to the user”, which inherently implies first and second items.
Non-Obvious Subject Matter
Claims 21-32 are objected to for an informality, rejected under 35 U.S.C. 101, with claims 21 and 32 rejected for double patenting, but claims 21-32 recite non-obvious subject matter.
Claims 33-42 are objected to for an informality, and rejected under 35 U.S.C. 101, with claim 33 rejected for double patenting, but claims 33-42 recite non-obvious subject matter.
The following is a statement of reasons for the indication of non-obvious subject matter: The closest prior art for the “graphically varying a presentation to the customer” limitation, Ellis et al. (U.S. Patent 7,353,192), discloses in column 22, lines 58-65, “Moreover, the potential buyer may request the product display schedule to terminate the display of a vehicle in the virtual showroom 1202 by clicking on an already selected entry in the selectable list of previously configured vehicle 1204. The product display module then terminates the product presentation of the selected vehicle in the virtual showroom 1202.” Branham et al. (U.S. Patent Application 2017/0372388) discloses in paragraph 15, “When fresh item images are rejected, the system will provide a different scanned image for the customer to choose from. The system will then replace rejected fresh item(s) and repeat the cycle again. Once the system has received all confirmations or the timer runs out the system will finalize preparing the order for pickup. The system will also provide a limiting function which will limit customers to a fixed number of attempts to visually verify and confirm a fresh item. When the limit is reached, the system will notify the customer and present the list of images for the customer to pick one of the images on the list to confirm. The system also allows for removing rejected fresh item(s) from the order.”
Somekh et al. (U.S. Patent Application 2017/0083522) discloses in paragraph 52, “A well-studied problem in this field is known as ‘the secretary problem’. In this problem, the goal is to hire the secretary with the highest value from an unknown series of secretaries arriving one by one, with each secretary assigned value that is revealed upon her arrival. With the arrival of each new secretary, a decision must be made whether to hire her (and end the process) or decline her (which is an irrevocable decision) and wait for a future, possibly better, secretary.” However, Ellis, Branham, Somekh, and the other prior art references of record do not disclose, teach, or reasonably suggest the step of “graphically varying a presentation to the customer visually conveying to the customer that, for at lest one predetermined duration, a presentation sequence will end and a final selection will be made for the customer if no prior selection is made by the customer during a set of predetermined durations that include the first predetermined duration and the second predetermined duration” in combination with the previous steps of generating representations of first and second grocery bundles, and monitoring for first and second selections input by the customer and removing the first and second grocery bundles if selection inputs are not provided by the customer during first and second predetermined durations.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Burke, Jr. et al. (U.S. Patent 8,614,821) is the patent issued on the application published as U.S. Patent Application Publication 2013/0188213, and used in making rejections under 35 U.S.C. 101. Somekh et al. (U.S. Patent 9,910,898) disclose smart exploration methods for mitigating the item cold-start problem in collaborative filtering recommendation systems.
Somekh et al. (U.S. Patent Application Publication 2017/0083522) disclose smart exploration methods for mitigating the item cold-start problem in collaborative filtering recommendation systems.
Demers, “The Duration of Optimal Stopping Problems” discloses mathematical treatments of the Secretary problem and other problems involving optimal stopping.
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/NICHOLAS D ROSEN/ Primary Examiner, Art Unit 3689 February 22, 2026