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 .
Applicant’s Reply
Applicant's response of 07/17/26 has been entered. The examiner will address applicant's remarks at the end of this office action. Currently claims 1-20 are pending.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claim 4 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
For claim 4, the applicant has amended claim 1 to no longer recite the limitation of “weighting at least a portion of the search criteria”, so when this terminology is referred to in claim 4 it does not have proper antecedent basis. It is not clear if a portion of the search criteria is being weighted or if the first and second weighting of claim 1 controls. This contradiction between the claims renders claim 4 indefinite.
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 an abstract idea without significantly more.
The claims recite a computer program product (non-transitory), a method, and a system; therefore, the claims pass step 1 of the eligibility analysis.
For step 2A, the claim(s) recite(s) an abstract idea of performing a real estate property search for a user so the user can be provided with a listed ranking of properties that satisfy or partially satisfy entered search criteria.
Using claim 19 as a representative example that is applicable to claims 1, 20, the abstract idea is defined by the elements of:
receiving real estate data for a plurality of properties from one or more third-party sources of data;
processing the real estate data including at least one of normalizing the real estate data and tagging the real estate data to create a property profile for each listing included in the real estate data;
receiving search criteria from a user, the search criteria including a first category of criteria and a second category of criteria;
determining a first weighting for the first category of the search criteria and a second weighting for the second category of the search criteria, the first weighting different than the second weighting;
determining, based at least in part on a selected geographic area, a first buffer threshold to at least one criterion of the first category of the search criteria;
determining, based at least in part on the selected geographic area, a second buffer threshold to at least one criterion of the second category of the search criteria, the first buffer different than the second buffer;
analyzing, using a model, the processed real estate data by comparing the property profiles for one or more properties to the processed search criteria;
assigning, based at least in part on a first match between at least one first criterion of the first category within the first buffer and a first property of the one or more properties, a first score;
assigning, based at least in part on a second match between at least one second criterion of the second category within the second buffer and the first property of the one or more properties, a second score;
determining, based at least in part on a reliability of the processed real estate data, the first score, and the second score, a property score for the first property;
ranking, based at least in part on the property score for the first property, the one or more properties based on the scoring; and
displaying at least a portion of the ranking of the one or more properties
The above limitations are reciting a process by which real estate properties are being searched for based on search criteria. Searching for real estate properties that match search criteria from a user is a commercial practice that exists in the real estate industry. Real estate agents are known to provide search results to those looking to buy a house, and the search is based on search criteria from a user. Online systems also allow users to enter desired search criteria that is used to provide search results to the user. Obtaining data about real estate properties and performing a search based on search criteria is a certain method of organizing human activities type of abstract idea.
For claim 1, the additional elements of the claim are the recited computer program product and the use of an interface.
For claim 19, the only additional element claimed is the recitation to the interface.
For claim 20, the additional elements are the recitation to the interface, a data network, a plurality of processors coupled to the network, and a remote computing resource coupled to the network that has a processor and memory.
This judicial exception is not integrated into a practical application (2nd prong of eligibility test for step 2A) because the additional elements of the claim when considered individually and in combination with the claim as a whole, amount to the use of a computing device(s) with a processor and memory connected to each other via a network, and that are being used as a tool to execute the abstract idea, see MPEP 2106.05(f). The claim is simply instructing one to practice the abstract idea by using a generically recited computing device(s) with a processor and memory and using a generically recited user interface to perform steps that define the abstract idea (data display). The claimed data network, plurality of processors and the remote computing resource of claim 20 is claiming generic computers connected by a network such as the Internet that are being used to accomplish the functions/steps that defines the abstract idea. The claimed interface that is the found in claims 1 and 19 is reciting something that all computer have so that data input and data output can occur and is not claiming anything more than an instruction for one to use a computer as a tool to execute the steps that defines the abstract idea in the form of performing the display step using an interface. For claim 1, the combination of the recitation to a computer program product and the use of the interface is interpreted as an instruction for one to practice the abstract idea using generic computer technology. Claim 19 recites the use of the interface as the only additional element and is considered to be an instruction for one to practice the abstract idea using generic computer technology as was stated for claims 1 and 20. The claimed computer program product and the use of an interface, and/or the data network, plurality of processors, and the remote computing resource of claim 20 that are coupled to the data network is claiming the use of networked computers to perform the steps that define the abstract idea. The additional elements do not amount to more than a mere instruction to implement the abstract idea on a computer connected via a network such as the Internet (the web) and that has an interface of some kind, all generically recited. This is indicative of the fact that the claim has not integrated the abstract idea into a practical application and therefore the claim is found to be directed to the abstract idea identified by the examiner. See MPEP 2106.05(f).
For step 2B, the claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the additional elements of the claim when considered individually and in combination with the claim as a whole, amount to the use of a computing device(s) with a processor and memory connected to each other via a network, and that are being used as a tool to execute the abstract idea, see MPEP 2106.05(f). The claim is simply instructing one to practice the abstract idea by using a generically recited computing device(s) with a processor and memory and using a generically recited user interface to perform steps that define the abstract idea (data display). The claimed data network, plurality of processors and the remote computing resource is claiming generic computers connected by a network such as the Internet that are being used to accomplish the functions/steps that defines the abstract idea. The claimed interface is reciting something that all computer have so that data input and data output can occur and is not claiming anything more than an instruction for one to use a computer as a tool to execute the steps that defines the abstract idea. This does not render the claims as being eligible. See MPEP 2106.05(f). The rationale set forth for the 2nd prong of the eligibility test above is also applicable to step 2B in this regard so no further comments are necessary. The combination of the additional elements is claiming computer implementation for the abstract idea which does not result in the claim reciting significantly more at step 2B.
Claims 1, 19, 20, do not recite any additional elements that provide for integration at the 2nd prong or that provide significantly more at step 2B. Therefore the claims are not considered to be eligible.
For claims 2-7, the claims are reciting a further embellishment of the same abstract idea that was found for claim 1. Reciting more about the properties in a buffer being scored, displaying listings having a parameter outside of the search criteria…., having the search criteria that includes location and that is based on user input that includes weightings and interactions are elements that are just defining more about the abstract idea. No further additional elements have been claimed beyond those already addressed for claim 1. The claims do not recite any additional elements that provide for integration at the 2nd prong or that provide significantly more at step 2B. Therefore the claims are not considered to be eligible.
For claim 8, the receiving of the search criteria from prompts is considered to be reciting more about the abstract idea of claim 1. This is asking or soliciting a user for input regarding search criteria to be used in the real estate property search. This is claiming part of the abstract idea. The claimed interface is an additional element and has been treated in the same manner as set forth for claim 1, to which applicant is referred. The interface is a link to computer implementation for the abstract idea and is interpreted as an instruction for one to use computers as a tool to execute the abstract idea. This does not render the claim eligible. See MPEP 2106.05(f).
For claims 9, 10, the claimed manner by which the scoring is performed by assigning full value, particle value, or no points and summing the values is claiming more about the abstract idea. Assigning points to certain criteria and summing up the scores (a weighted summation) is part of the abstract idea. The same is noted for the claimed display of the score for one or more properties. That is also part of the abstract idea and can be accomplished by a person showing another person the scores written on paper, such as a report. No further additional elements have been claimed beyond those already addressed for claim 1. The claims do not recite any additional elements that provide for integration at the 2nd prong or that provide significantly more at step 2B. Therefore the claims are not considered to be eligible.
For claims 11-17, the claims are reciting a further embellishment of the same abstract idea that was found for claim 1. Reciting more about the displaying of information related to real estate data for the properties, providing a personalized view ranking of the properties that includes identification of search criteria and a description related to the ranking, updating the real estate data on a periodic basis, prioritizing sources of data, and claiming that the real estate data includes an image or school data or neighborhood information are all elements that serve to further define the abstract idea of claim 1. The claims do not recite any additional elements that provide for integration at the 2nd prong or that provide significantly more at step 2B. Therefore the claims are not considered to be eligible.
For claim 18, the claim recites that the model is a machine learning model. For claim 1 the model was considered to be part of the abstract idea because it is broadly recited and a model in a broad sense is a framework or a template on how to do something. Claiming that the model is a machine learning model is now considered to be an additional element; however, this is a general link to the field of machine leaning and is not providing for integration or significantly more, see MPEP 2106.05(h) in this regard. The use of machine learning can be interpreted as being an instruction for one to use a computer to perform the abstract idea (MPEP 2106.05(f)), or can be interpreted as a link to a particular technological environment which is the field of machine learning, see MPEP 2106.05(h). The machine learning is recited at a high level of generality and does not claim anything about machine learning that would arguably provide for an improvement to technology or to machine learning in general. For this reason the claim is not found to be integrated into a practical application and is not found to be reciting significantly more. The claim is not eligible.
Therefore, for the above reasons, claims 1-20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
Response to arguments
The traversal of the 35 USC 101 rejection is not persuasive. On page 11 of the reply the applicant argues that the claims recite more than just a property search that ranks properties. The applicant argues:
The Examiner characterizes the claims as directed to a commercial practice of searching for real estate properties that match search criteria from a user. However, the amended claims go well beyond a generic property search. Claim 1, as amended, recites: (a) receiving search criteria from a user, "the search criteria including a first category of criteria and a second category of criteria;" (b) "determining a first weighting for the first category of the search criteria and a second weighting for the second category of the search criteria, the first weighting different than the second weighting," (c) "determining, based at least in part on a selected geographic area, a first buffer threshold to at least one criterion of the first category of the search criteria;" (d) "determining, based at least in part on the selected geographic area, a second buffer threshold to at least one criterion of the second category of the search criteria, the first buffer different than the second buffer;" (e) "assigning, based at least in part on a first match between at least one first criterion of the first category within the first buffer and a first property of the one or more properties, a first weight;" (f) "assigning, based at least in part on a second match between at least one second criterion of the second category within the second buffer and the first property of the one or more properties, a second weight;" and (g) "determining, based at least in part on a reliability of the processed real estate data, the first weight, and the second weight, a score for the first property." These are not activities that organize human behavior. Rather, they are specific technical data processing operations involving geographic-area-dependent buffer threshold determination, category-specific differential weighting, and reliability-based scoring that cannot practically be performed in the human mind or by a real estate agent manually. Accordingly, the claims as amended do not fall within the "certain methods of organizing human activity" grouping.
The applicant is arguing the elements that define the abstract idea. The claimed limitations being argued are those that define the abstract idea and are fully capable of being performed by a person. In fact, looking at the method claim, the only technology in the claim is the interface. The other claimed limitations are not tied to any technology or device for their execution so by definition, the method can be practiced with no technology. If the argued elements are specific and technical data processing operations performed by a computer, where is the computer for claims 1 and 19? There is none recited so the argument that the claims are specific technological operations is not persuasive. People can receive data, people can normalize data manually, people can determine weights, people can determine scores, etc.. Nothing that is claimed is computer centric as far as only a computer can perform the recited steps. The argued elements are those that define the abstract idea. The argument is not persuasive.
The applicant argues that the examiner has oversimplified the claims because they recite a multi-step technical process with interdependent operations- geographic-area-dependent buffer threshold determination for different categories of criteria, category-specific differential weighting, assigning weights based on matches within those category-specific buffers, and reliability-based scoring. This is not persuasive because the argued elements are those that define the abstract idea. Nothing has been oversimplified or ignored in the claims. The limitations of the geographic area dependent buffer determination and differential weighting and reliability based scoring are all elements that serve to define the abstract idea. These elements have not been ignored as alleged by the applicant. All claim limitations have been accounted for and the claim as an ordered combination has been considered. The argument is not persuasive.
On page 13 of the reply the applicant argues that a human cannot perform the claimed invention in the human mind. The examiner did not find the abstract idea to be a mental process so the mental process practicability requirement does not apply. There is no such requirement for the certain method of organizing human activities category of abstract ideas. The applicant is arguing a rejection that does not exist. Regardless, as was already addressed, a human can easily perform the recited steps. If a human cannot, then the examiner again questions why the method claim is so broad that it allows for people to perform the recited steps. The argument that people cannot perform the recited limitations is a general allegation that is not persuasive. The examiner respectfully disagrees with the applicant.
On page 14 the applicant argues the 2nd prong. The applicant argues that the claims recites specific technical steps and repeats some of the elements that serve to define the abstract idea. This is not persuasive as was already addressed by the examiner. The argued “particular way” to achieved search results is arguing the abstract idea. Narrowly drafted abstract ideas are still abstract ideas so the fact that the applicant feels the claims recite a particular solution does not mean that the claims are eligible. The argued particular solution is the abstract idea itself.
The applicant argues on page 14 that the claims are improving property searches by reciting specific technical steps of geographic- area-dependent buffer threshold determination, category-specific differential weighting, reliability-based scoring, and ranking based on the resulting scores. This is not persuasive because the applicant is arguing the steps that defines the abstract idea and because the result of the claim does not serve to improve technology in any manner. The interface of claims 1 and 19 is not being improved. The network and processor(s) of claim 20 are not being improved. The applicant is arguing that property searches are being improved, which is an improvement to the abstract idea, not technology. In SAP v. Investpic, claims directed at analyzing investment data was found to be an abstract idea. The court stated that the claims were directed at selecting certain information, analyzing the information, and providing or displaying the results of the analysis, and conclude that this was an abstract idea by citing to Electric Power Group, Parker v. Flook, and Gottschalk v. Benson. The very same rationale applies to the pending claims. The court stated:
We affirm. We may assume that the techniques claimed are “[g]roundbreaking, innovative, or even brilliant,” but that is not enough for eligibility. Ass’n for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 591 (2013); accord buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1352 (Fed. Cir. 2014). Nor is it enough for subject-matter eligibility that claimed techniques be novel and nonobvious in light of prior art, passing muster under 35 U.S.C. §§ 102 and 103. See Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 89–90 (2012); Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d 1138, 1151 (Fed. Cir. 2016) (“[A] claim for a new abstract idea is still an abstract idea. The search for a § 101 inventive concept is thus distinct from demonstrating § 102 novelty.”); Intellectual Ventures I LLC v. Symantec Corp., 838 F.3d 1307, 1315 (Fed. Cir. 2016) (same for obviousness) (Symantec). The claims here are ineligible because their innovation is an innovation in ineligible subject matter. Their subject is nothing but a series of mathematical calculations based on selected information and the presentation of the results of those calculations (in the plot of a probability distribution function). No matter how much of an advance in the finance field the claims recite, the advance lies entirely in the realm of abstract ideas, with no plausibly alleged innovation in the nonabstract application realm. An advance of that nature is ineligible for patenting.
The very same can be said of the pending claims. Any alleged improvement lies in the abstract idea itself and not in an improvement to technology.
On page 15 the applicant cites to McRo, and argues that the use of specific rules to automate tasks performed by humans is an improvement to technology. This is not a fair characterization of McRo and is not persuasive. McRo does not stand for the premise that having an abstract idea that uses specific rules is an improvement to technology. And merely automating something humans can do does not result in an improvement to technology. That is not what McRo was all about. In McRo technology was being improved. For the pending claims the result of the claim has nothing to do with improving technology because the result of the claims is the display of ranked real estate properties. That is not improving technology in any manner. The argument is not persuasive.
On pages 15-16 the applicant argues step 2B. The applicant argues that the examiner has not provided a step 2B analysis. The applicant argues that the 2A analysis is repeated for step 2B. The argument is not persuasive. The issue at hand is the mere use of a computer to perform the abstract idea. Claims 1 and 19 only recites a user interface as being an additional element. At step 2B, the issue is the same as the 2nd prong, namely the claims do nothing more than to instruct one to practice the abstract idea using a computer. The step 2B analysis is completely proper and fully addresses the claims. The applicant also argues that the ordered combination renders the claims eligible. This is not persuasive because the steps argued are those that define the abstract idea.
The applicant argues that the claimed limitations are not well understood, routine or conventional and argues that no evidence has been provided. This argument is not commensurate with the actual 101 analysis that the USPTO employs and that is set forth in the MPEP. For the argument that the examiner has not provided evidence addressing well understood, routine, and conventional, the examiner notes that no such requirement exists in the eligibility guidance. The examiner has not taken the position that anything is well understood, routine, or conventional at step 2B because nothing has been found to be an insignificant extra solution activity at the 2nd prong. Examiners do not have to prove that a claimed invention was well understood, routine, and conventional in a given field to find that the claims are not eligible at step 2B. To do so would be injecting a prior art analysis into the eligibility inquiry. Something that is well understood, routine, and conventional is more than just known in the art, it means that something is more or less ubiquitous in a given field. There is no requirement that an examiner prove with evidence that a claimed invention is so well known in a given field that it rises to the level of being well understood, routine, and conventional at step 2B as a rule. Only when something is found to be an insignificant extra solution activity at the 2nd prong does the Berkheimer memo become relevant. The rejection of record does not find anything to be an insignificant extra solution activity at the 2nd prong so there is nothing to reassess at step 2B with respect to the issue of being well understood, routine, and conventional (the Berkheimer memo). The applicant cannot just allege by attorney comment that the claims are not well understood, routine, and conventional in an attempt force the examiner to perform a Berkheimer analysis and provide evidence that the claim as a whole Is not just known in the art, but it is well understood, routine, and conventional (ubiquitous in the art). The argument is not persuasive.
The 101 rejection is being maintained.
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).
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DENNIS WILLIAM RUHL whose telephone number is (571)272-6808. The examiner can normally be reached M-F 7am-3:30pm.
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, Jessica Lemieux can be reached at 5712703445. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/DENNIS W RUHL/ Primary Examiner, Art Unit 3626
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