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 .
Procedural Summary
This is responsive to the claims filed 05/13/2024.
The Examiner acknowledges the preliminary amendment filed on 05/13/2024 in which amendments were submitted.
Claims 1-13 and 15 are pending.
Applicant’s IDS submission is acknowledged and provided herewith.
The Drawings filed on 05/13/2024 are noted.
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 1-13 and 15 are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter. The claimed invention is directed to non-statutory subject matter because the claim(s) as a whole, considering all claim elements both individually and in combination, do not amount to significantly more than an abstract idea. Each of Claims 1-13 and 15 has been analyzed to determine whether it is directed to any judicial exceptions.
The examiner follows the two step-analysis, as described in MPEP 2106 (available at https://www.uspto.gov/web/offices/pac/mpep/s2106.html). The following diagram is an overview of the steps involved.
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Step 1
Step 1 of the two step-analysis considers whether the claims fall into one of the four statutory categories of invention such as a process, machine, manufacture, or composition of matter. The instant invention claims a device, a system, a method and a non-transitory in claims 1-13, and 15. As such, the claimed invention falls into the broad statutory categories of invention. However, claims that fall within one of the four statutory categories may nevertheless be ineligible if they encompass laws of nature, physical phenomena, or abstract ideas.
Step 2A
Step 2A has been further divided into two prongs as shown in the following diagram.
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Step 2A, Prong 1
Under prong 1 of step 2A, the examiner considers whether the claim recites an abstract idea, law of nature or natural phenomenon. The term “abstract idea” is not interpreted as a layperson might. Instead, the term “abstract idea” is interpreted as described in legal opinions by courts.
According to MPEP 2106.04(a):
the Office has set forth an approach to identifying abstract ideas that distills the relevant case law into enumerated groupings of abstract ideas. The enumerated groupings are firmly rooted in Supreme Court precedent as well as Federal Circuit decisions interpreting that precedent, as is explained in MPEP § 2106.04(a)(2). This approach represents a shift from the former case-comparison approach that required examiners to rely on individual judicial cases when determining whether a claim recites an abstract idea. By grouping the abstract ideas, the examiners’ focus has been shifted from relying on individual cases to generally applying the wide body of case law spanning all technologies and claim types.
The enumerated groupings of abstract ideas are defined as:
1) Mathematical concepts – mathematical relationships, mathematical formulas or equations, mathematical calculations (see MPEP § 2106.04(a)(2), subsection I);
2) 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) (see MPEP § 2106.04(a)(2), subsection II); and
3) Mental processes – concepts performed in the human mind (including an observation, evaluation, judgment, opinion) (see MPEP § 2106.04(a)(2), subsection III).
Here, independent Claim 1, and similarly recited Claims 12, 13, and 15 recites: “1. A video game peripheral device comprising an electromagnet and circuitry, the circuitry being configured to:
receive data from a data processing apparatus executing a video game application;
based on the received data, control an electric current supplied to the electromagnet to control a magnetic interaction between the electromagnet and a magnetic material of a second video game peripheral device wearable or holdable by a user.”
Additionally, each of Claims 3 and 4 recite steps or instructions involving mathematical concepts – mathematical relationships, mathematical formulas or equations, mathematical calculations. Specifically, Claim 3 recites: “3. A video game peripheral device according to claim 2, wherein the electric current I supplied to the electromagnet is calculated using:
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where F is the weight of the virtual object, N is a number of turns of a coil of the electromagnet, L is a length of a core of the electromagnet, A is an area of contact between the core of the electromagnet and the magnetic material of the second video game peripheral device, μ.sub.0 is a magnetic permeability of a vacuum and μ is a magnetic permeability of the core of the electromagnet.”
As indicated above, the underlined portions of representative Independent Claim 13, and similarly recited Independent Claims 1, 12 and 15, generally encompass the abstract ideas, for example as, each of at least one step or instruction or rule for: (i) an observation, judgement or evaluation, which is a mental process under the 2019 PEG. The claims generally encompass the steps of receiving, controlling, and determining, which are steps that can be done in the human mind. Further, dependent Claims 3 to 5 recite mathematical concepts – mathematical relationships, mathematical formulas or equations, mathematical calculations, which is a form of abstract idea. Dependent claims 2, and 6-11 include limitations that either further define the abstract idea (and thus don’t make the abstract idea any less abstract) or amount to no more than generally linking the use of the abstract idea to a particular technological environment or field of use because they’re merely incidental or token additions to the claims that do not alter or affect how the process steps are performed. Accordingly, each of Claims 1 to 13, and 15 recites an abstract idea.
Step 2A, Prong 2
Under prong 2 of step 2A, the examiner considers whether the additional elements in the claims integrate the abstract idea into a practical application. Here, the abstract idea is not integrated into a practical application. According to 2019 PEG, a consideration indicative of integration into a practical application includes improvements to the functioning of a computer or to any other technology or technical field (MPEP 2106.05(a)) or adding a specific limitation other than what is well-understood, routine, conventional activity, or adding unconventional steps that confine the claim to a particular application (a non-conventional and non-generic arrangement of various computer components for filtering Internet content, as discussed in BASCOM Global Internet v. AT&T Mobility LLC, 827 F.3d 1341, 1350-51, 119 USPQ2d 1236, 1243 (Fed. Cir. 2016) (MPEP § 2106.05(d)). Conversely, considerations not indicative of integration include adding words “apply it” (or equivalent) with the judicial exception or mere instructions to implement the abstract idea on a computer, or merely uses a computer as a tool to perform an abstract idea. (MPEP 2106.05(f)); adding insignificant extra-solution activity (MPEP 2106.05(g)), or generally linking the use of the abstract idea to a particular technological environment or field of use (MPEP 2106.05(h)).
Here, the claims recite a video game peripheral device, generically recited/claimed (no details whatsoever are provided other than in name only) that they represent no more than mere instructions to apply the judicial exception on a computer. These limitations can also be viewed as nothing more than an attempt to generally link the use of the judicial exception to the technological environment of a computer. It should be noted that because the courts have made it clear that mere physicality or tangibility of an additional element or elements is not a relevant consideration in the eligibility analysis, the physical nature of these computer components does not affect this analysis. See MPEP 2106.05(I) for more information on this point, including explanations from judicial decisions including Alice Corp. Pty. Ltd. v. CLS Bank Int'l, 573 U.S. 208, 224-26 (2014).
The receiving, and controlling steps are deemed to be data gathering and data presentation for the use of the judicial exception and similarly are recited at a high level of generality. While the claims recite physical components such as an electromagnet and a wearable or holdable peripheral device, these components are described at a high level and are used to execute the underlying data gathering/processing, and mathematical determination. Thus, these limitations are a form of insignificant extra-solution activity (See MPEP 2106.05(g), See also selecting a particular source and type of data to be manipulated where “Selecting information, based on types of information and availability of information in a power-grid environment, for collection, analysis and display, Electric Power Group, LLC v. Alstom S.A., 830 F.3d 1350, 1354-55, 119 USPQ2d 1739, 1742 (Fed. Cir. 2016)).
Additionally the additional elements are generically recited computer elements in the claims that do not improve the functioning of a computer, or any other technology or technical field. For example, applicant’s specification does not include any discussion of how the claimed invention provides a technical improvement realized by these claims over the prior art or any explanation of a technical problem having an unconventional technical solution that is expressed in these claims. That is, like Affinity Labs of Tex. v. DirecTV, LLC, the specification fails to provide sufficient details regarding the manner in which the claimed invention accomplishes any technical improvement or solution. In order to be patent-eligible, software patents must make a technical improvement to a computer per se. The invention must provide a “technical solution to a technical problem.” A “technical problem” is a problem arising out of computers or networks. Applicant’s invention does not address a technical problem.
Furthermore, the additional elements do not serve to apply the above-identified abstract idea with, or by use of, a particular machine, effect a transformation or apply or use the above-identified abstract idea in some other meaningful way beyond generally linking the use thereof to a particular technological environment, such that the claim as a whole is more than a drafting effort designed to monopolize the exception. Thus, since Applicant’s invention does not provide a “technical solution to a technical problem,” it is not eligible under 35 USC §101. For at least these reasons, the claims as a whole does not integrate the recited judicial exception into a practical application and these claims are directed to the judicial exception. Thus, Claims 1-13, and 15 lack the eligibility requirements of Step 2 Prong II.
Step 2B
Finally, under step 2B, the examiner evaluates whether the additional elements:
add a specific limitation or combination of limitations that are not well-understood, routine, conventional activity in the field, which is indicative that an inventive concept may be present (MPEP 2106.05(d)); or
simply appends well-understood, routine, conventional activities previously known to the industry, specified at a high level of generality, to the judicial exception, which is indicative that an inventive concept may not be present (MPEP 2106.05(d) and Berkheimer Memo, April 20, 2018). Thus, the additional elements evaluated under Step 2A are re-evaluated in Step 2B to determine if they are more than what is well-understood, routine, conventional activity in the field.
While the claim recites physical components such as a wearable or holdable peripheral device such as a glove, or game controller, an electromagnet, these components, individually or in combination, does amount to significantly more than the abstract idea. As discussed above with respect to the lack of a practical application, the additional elements in the claim amount to no more than mere instructions to apply the exception using generic computer components used as tools. These additional elements are generically claimed computer components which enable a game to be conducted by performing the basic functions of: (i) receiving, processing, and storing data, (ii) automating mental tasks and (iii) receiving or transmitting data over a network, e.g., using the Internet to gather data. The courts have recognized such computer functions as well understood, routine, and conventional functions when claimed in a merely generic manner (e.g., at a high level of generality) or as insignificant extra-solution activity. See, Versata Dev. Group, Inc. v. SAP Am., Inc. , 793 F.3d 1306, 1334, 115 USPQ2d 1681, 1701 (Fed. Cir. 2015); and OIP Techs., 788 F.3d at 1363, 115 USPQ2d at 1092-93. Simply using 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 provide significantly more. See Affinity Labs v. DirecTV, 838 F.3d 1253, 1262, 120 USPQ2d 1201, 1207 (Fed. Cir. 2016) (cellular telephone); and TLI Communications LLC v. AV Auto, LLC, 823 F.3d 607, 613, 118 USPQ2d 1744, 1748 (Fed. Cir. 2016) (computer server and telephone unit). Moreover, implementing an abstract idea on a generic computer, does not add significantly more, similar to how the recitation of the computer in the claim in Alice amounted to mere instructions to apply the abstract idea of intermediated settlement on a generic computer.
Here, the steps of the claims are deemed to be data gathering and data presentation extra-solution activity. Court decisions cited in MPEP 2106.05(d)(II) indicate that these limitations are well-understood, routine, and conventional function when it is claimed in a merely generic manner (as they are here). See storing and retrieving information in memory (MPEP 2106.05(d)(II)(iv) and then to present or display said information is well known as in presenting offers and gathering statistics (MPEP 2106.05(d)(II)(iii). Accordingly, a conclusion that the step is well-understood, routine, conventional activity is supported under Berkheimer. Therefore, these limitations remain insignificant extra-solution activity even upon reconsideration, and do not amount to significantly more. Thus, Claims 1-13, and 15 remain ineligible.
AIA Notice
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.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102 of this title, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1-13 and 15 are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent Application Publication 2017/0351332 A1 to Grant et al. (hereinafter Grant) in view of U.S. Patent 6,982,696 B1 to Shahoian.
Regarding Claim 1, and similarly recited Claims 12, 13, and 15, Grant discloses a video game peripheral device comprising an electromagnet and circuitry (fig. 1), the circuitry being configured to:
receive data from a data processing apparatus executing a video game application (fig. 8, paras. [0034], [0047], [0048] discloses determines whether a movement event has occurred in a game);
based on the received data, control an electric current supplied to the electromagnet to control a magnetic interaction between the electromagnet and a magnetic material of a second video game peripheral device wearable or holdable by a user (fig. 1A, game controller).
Grant does not explicitly disclose: control an electric current supplied to the electromagnet to control a magnetic interaction between the electromagnet and a magnetic material of a second video game peripheral device wearable or holdable by a user.
In a related invention, Shahoian discloses control an electric current supplied to the electromagnet to control a magnetic interaction between the electromagnet and a magnetic material of a second video game peripheral device wearable or holdable by a user (Col. 2:9-23 discloses an actuator for providing vibration forces in a haptic feedback device. The actuator includes a core member that is grounded to a ground member. A coil is wrapped around a central projection of the core member, and a magnet head is positioned so as to provide a gap between the core member and the magnet head. The magnet head is moved in a degree of freedom based on an electromagnetic force caused by a current flowed through the coil. An elastic material is positioned in the gap between the magnet head and the core member, where the elastic material is compressed and sheared when the magnet head moves and substantially prevents movement of the magnet head past a range limit, the range limit based on an amount which the elastic material may be compressed and sheared).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use the electromagnet actuator taught by Shahoian to provide magnetic force interactions based on game signals and control current, with the gaming invention of Grant, as both components are known in the art and serve analogous functions of generating forces in response to game context.
Regarding Claim 2, Grant in view of Shahoian discloses a video game peripheral device according to claim 1, wherein:
the received data indicates a weight of a virtual object in a video game; and the electric current supplied to the electromagnet causes the electromagnet and magnetic material of the second video game peripheral device to be attracted to each other with a magnetic force equal to the weight of the virtual object (Shahaoin, Col 2: 8-30, Grant, paras. [0034], [0038], [0047]-[0050]).
Regarding Claim 3, Grant in view of Shahoian discloses a video game peripheral device according to claim 2, wherein the electric current I supplied to the electromagnet is calculated using:
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where F is the weight of the virtual object, N is a number of turns of a coil of the electromagnet, L is a length of a core of the electromagnet, A is an area of contact between the core of the electromagnet and the magnetic material of the second video game peripheral device, μ.sub.0 is a magnetic permeability of a vacuum and μ is a magnetic permeability of the core of the electromagnet (Shahoian, Col. 4:10-55).
Regarding Claim 4, Grant in view of Shahoian discloses a video game peripheral device according to claim 3, wherein a relationship between μ and I is determined using a trained regression model (Shahoian, Col. 4:10-55).
Regarding Claim 5, Grant in view of Shahoian discloses a video game peripheral device according to claim 1, wherein the trained regression model is a polynomial regression model (Shahoian, Col. 4:10-55).
Regarding Claim 6, Grant in view of Shahoian discloses a video game peripheral device according to claim 1, wherein the circuitry is configured to control electric current to be supplied to the electromagnet only when the magnetic material of the second video game peripheral device is in proximity to the electromagnet (Grant, paras. [0034], [0038], [0046]-[0053]).
Regarding Claim 7, Grant in view of Shahoian discloses a video game peripheral device according to claim 6, wherein the circuitry is configured to determine that the second video game peripheral device is in proximity to the electromagnet based on a captured image of the video game peripheral device and second video game peripheral device (Grant, paras. [0034], [0038], [0046]-[0053]).
Regarding Claim 8, Grant in view of Shahoian discloses a video game peripheral device according to claim 6, wherein the circuitry is configured to determine that the second video game peripheral device is in proximity to the electromagnet based on a near-field communication, NFC, transmission between the video game peripheral device and second video game peripheral device (Grant, paras. [0008], [0034], [0038], [0046]-[0053]).
Regarding Claim 9, Grant in view of Shahoian discloses a video game peripheral device according to claim 1, wherein the wearable or holdable video game peripheral device is a glove (Grant, paras. [0008], [0034], [0038], [0046]-[0053]).
Regarding Claim 10, Grant in view of Shahoian discloses a video game peripheral device according to claim 1, wherein the wearable or holdable video game peripheral device is a video game controller (Grant, figs. 1-2, paras. [0008], [0034], [0038], [0046]-[0053]).
Regarding Claim 11, Grant in view of Shahoian discloses a video game peripheral device according to claim 1, wherein the wearable or holdable video game peripheral device is a bodysuit (Grant, paras. [0008], [0034], [0038], [0046]-[0053]).
Conclusion
Claims 1-13 and 15 are examined above.
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/S.N.H/Examiner, Art Unit 3715 /DAVID L LEWIS/Supervisory Patent Examiner, Art Unit 3715