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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 05/05/26 has been entered. Currently claims 1-20 are pending.
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 8, 10-14 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more. Claim 9 that depends from claim 8 has NOT been rejected under 101 and is considered to be eligible. Claims 8, 10-14 are rejected.
The claims 8-14 recite a system and pass step 1 of the eligibility analysis.
For step 2A, addressing claims 8, 10-14, the claims recite(s) an abstract idea of managing the queue for entry to a facility so as to control the occupancy of the facility. The concept of queuing people and managing the queue to admit entry into a facility or event is considered to be a certain method of organizing human activities.
For claim 8, the abstract idea is defined by the elements of:
generating a first indication that a queue time is greater than a queuing threshold for the facility;
sending, based on the first indication that the queue time is greater than the queuing threshold for the facility, a notification of the queue time to a user,
causing, based on credential information received from the user:
communicate with the third-party to retrieve the instruments associated with the wallet;
rank the digital instruments based on at least digital instrument type, user preferences, reward or benefit program membership, and time-of-day; and
display a selectable ranked list of the instruments prompting the user to select a instrument from among the selectable ranked list of the instruments;
receiving, the selected digital instrument;
adjusting the queuing threshold based on the selected instrument and based on queue data received that includes facility usage patterns, peak operating times, and queue wait times;
causing, based on the selected instrument, display a requirement for accessing the facility and a request for a user confirmation of the requirement for accessing the facility; and
causing, based on the user confirmation of the requirement for accessing the facility and a second indication that the queue time is less than the adjusted queuing threshold, display of image data encoded with an access identifier that enables access to the facility, wherein the image data comprises at least one of a barcode, a matrix barcode, or a QR code; and
manage access to the facility decode and validate the access identifier to enable access to the facility
The above limitations are reciting a certain method of organizing human activities. The concept of queuing people and managing the queue to admit entry into some kind of facility or event is considered to be a certain method of organizing human activities, and is part of doing business when there is an occupancy limit for an establishment. The queueing of people into lines or waiting lists for entry into a facility is something that is itself human activity and is a commercial practice for businesses that have occupancy controlled by local ordinance or occupancy codes. The claims recites steps of notifying a user of the fact that they can gain entry to a facility (queuing threshold) and is reciting the use of a payment instrument (the claimed instrument) that can be used to pay for admission, along with a display of a requirement to access a facility, such as displaying a boarding pass to access an airport lounge (see paragraph 028 of the specification). The claimed steps can be performed by people who are using paper credentials and documentation to gain access to the facility. The examiner is not stating that the claims are known in the art, but is taking the position that the claimed steps are capable of being performed by people absent the recitation to technology and are defining a certain method of organizing human activities that is managing access to a facility.
For claim 8, the additional elements are the at least one processor of a computing device and memory, the user device with a digital queueing application that also has an interface, the kiosk or entry device (both read on a computer), calling the instrument a digital instrument, the execution of a predictive model that has been trained for the ranking step (trained is past tense language and is not reciting the training as a step to the method), reciting that the user device is connected to the at least one processor via a network, and the user device being configured to communicate with another system (the third party system). The language describing that the communication is “to enable” interaction to occur between a wallet and a queueing application is an intended use of the fact that the user device can communicate with another system (another computer). The recitation that the third party maintains the wallet is not defining anything to the method stepwise or structurally. No step of maintaining anything is being claimed.
This judicial exception is not integrated into a practical application (2nd prong of eligibility test for step 2A) . The above additional elements are simply instructing one to practice the abstract idea using a computer that is connected by a network to other computers/systems that uses digital data as all computers use, and the use of a predictive model that has been trained. The at least one computer processor, the user device with an application and an interface, the kiosk or entry device, and the user device being able to communicate with other computers/systems via a network is claiming computer implementation for the abstract idea. The combination of elements is the use of computing devices connected by a network. The user device and the kiosk and/or entry device are all broadly recited and include a computing device in the claim scope. The combination of the additional elements is claiming computer devices being connected by a network such as the Internet, and does not amount to more than an instruction for one to use computers as a tool to execute the abstract idea. Calling the instruments digital instruments is claiming the use of a computer so that the data is digital as opposed to having hard copy instruments such as those on paper. This does not amount to more than an instruction for one to use a computer to perform the abstract idea. The execution of the predictive model that has been trained is reciting the execution of a machine learning model and is a link to computer implementation for the ranking step and/or can be construed as a link to a particular technological environment that is the use of machine learning, both of which do not lend eligibility to the claims, see MPEP 2106.05(f), and (h). The predictive model is claimed at a high level of generality and is the equivalent of reciting the ranking step is applied using machine learning. This does not amount more than a link to a particular technological environment for the execution of the abstract idea that is the use of the machine learning and a trained machine learning model, which does not provide for integration into a practical application.
For step 2B, the claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception when considered individually and in combination with the claim as a whole because they do not amount to more than simply instructing one to practice the abstract idea by using a generically recited computing device with a processor and memory, a user device, kiosk or entry device, etc., to perform steps that define the abstract idea and the use of a predictive trained model, as was addressed for the 2nd prong. When the issue at hand is computer implementation of an abstract idea, the same rationale that applies to the 2nd prong is applicable to step 2B. The above additional elements are simply instructing one to practice the abstract idea using a computer that is connected by a network to other computers/systems that uses digital data as all computers use, and the use of a predictive model that has been trained. The at least one computer processor, the user device with an application and an interface, the kiosk or entry device, and the user device being able to communicate with other computers/systems via a network is claiming computer implementation for the abstract idea. The combination of elements is the use of computing devices connected by a network. The user device and the kiosk and/or entry device are all broadly recited and include a computing device in the claim scope. The combination of the additional elements is claiming computer devices being connected by a network such as the Internet, and does not amount to more than an instruction for one to use computers as a tool to execute the abstract idea. Calling the instruments digital instruments is claiming the use of a computer so that the data is digital as opposed to having hard copy instruments such as those on paper. This does not amount to more than an instruction for one to use a computer to perform the abstract idea. The execution of the predictive model that has been trained is reciting the execution of a machine learning model and is a link to computer implementation for the ranking step and/or can be construed as a link to a particular technological environment that is the use of machine learning, both of which do not lend eligibility to the claims, see MPEP 2106.05(f), and (h). The predictive model is claimed at a high level of generality and is the equivalent of reciting the ranking step is applied using machine learning. This does not amount more than a link to a particular technological environment for the execution of the abstract idea that is the use of the machine learning and a trained machine learning model. The combination of the additional elements when viewed with the claim as a whole do not provide for significantly more.
For claim 10, the abstract idea is being further defined by the elements of:
determining a location of the user
accessing a mapping system associated with the facility to identify one or more candidate routes from the location of the user to the facility; and
applies a shortest-path algorithm to select a route from among the candidate routes based on at least distance, real-time crowd levels determined from sensor data, and detected obstructions within an area surrounding the facility
The above elements are considered to be part of the abstract idea. A person can locate a user visually or by asking them their location. A person can use a mapping system to find a route(s) as claimed and can select a route as claimed. This is just further defining the same abstract idea of claim 8. The use of GPS has been considered as an additional element that is using GPS in its ordinary manner, which is to provide a location. GPS is used to provide a location to a user by using satellites to perform a location determination. GPS is used to determine location so the recitation to GPS in the claim is an instruction for one to use GPS in its ordinary manner in conjunction with a judicial exception, and does not provide for integration into a practical application or significantly more. The predictive model that is used for the route selection is interpreted as a link to the use of machine learning and for the same reasons set forth for claim 8, do not provide for integration into a practical application or significantly more. The user device has been treated in the same manner that was set forth for the independent claims, to which the applicant is referred. 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 11, the claimed causing of a display of a route from the location to the facility is a further recitation to the abstract idea of claim 8. A person can display a route to be taken by using a paper map. The user device has been treated in the same manner that was set forth for the independent claims, to which the applicant is referred. The claim does not recite any additional elements that provide for integration at the 2nd prong or that provide significantly more at step 2B. Therefore the claim is not considered to be eligible.
For claim 12, the claimed labeled datasets are part of the abstract idea as far as this is claiming data or information per se. There is no training of the model that is positively recited in the claim scope. All that is claimed is the execution of a model that has been trained. For this reason, the claimed data and 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 13, the claimed enabling of additional user devices to access the facility is a further recitation to the abstract idea of the claims, and is reciting something that is not defining anything more than what the access identifier allows to occur. This is part of the abstract idea. 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 14, the indication that a user is in proximity to the facility is considered to be part of the abstract idea. The use of GPS is considered to be an additional element that is using GPS in its ordinary manner, which is to provide a location. GPS is used to provide a location to a user by using satellites to perform a location determination. GPS is used to determine location so the recitation to GPS in the claim is an instruction for one to use GPS in its ordinary manner in conjunction with a judicial exception, and does not provide for integration into a practical application or significantly more. See MPEP 2106.05(f)(2). The claim does not recite any additional elements that provide for integration at the 2nd prong or that provide significantly more at step 2B. Therefore the claim is not considered to be eligible.
Therefore, for the above reasons, claims 8, 10-14 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
Allowable Subject Matter
Claims 1-7, 15-20 are allowed.
Claim 9 is objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Response to arguments
The traversal of the 35 USC 101 rejection is not persuasive with respect to claims 8-14. On page 19 of the reply the applicant argues that the claims are integrated into a practical application. The applicant argues that the execution of a predictive model trained on a labeled dataset to rank digital instruments associated with a user’s wallet and generation of a machine readable access identifier to be read by a kiosk or entry device renders the claims eligible. The applicant argues that the use of the predictive model is based on multiple inputs and is not a mental process and is not a generic instruction to rank. The applicant argues that the machine learning based model is a specialized computer operation that provides for integration. This is not persuasive. The ranking of the instruments that is being claimed is part of the abstract idea. The fact that the claim recites that a predictive model is used to perform the ranking is a link to the use of machine learning for the ranking step. This is an instruction for one to use a computer and machine learning to rank the digital instruments, where a person can otherwise perform the claimed ranking. The ranking of the instruments based on the claimed data is what serves to define part of the abstract idea with the predictive model being a link to machine learning (a particular technological environment). This does not provide for integration into a practical application, see MPEP 2106.05(f).
The applicant argues that the generation of a machine readable access identifier that can be read and verified by an entry device or a kiosk to provide entry. This is not persuasive. The generation of the access identifier and the use of the identifier to gain access to a facility is something that is part of the abstract idea. People can perform the recited decoding and validating of the access identifier just like people have done when paper tickets have been used to gain entry to a facility, which does not involve subjective judgement by a user. A person can review a ticket and determine if the date is correct and the venue is correct, etc., to allow access. The argued limitation is largely arguing the abstract idea. The fact that the claims recite the use of a mobile device interface to display the access identifier and the use of an entry device or a kiosk to decide and validate the access identifier is an instruction for one to use a computer to perform the abstract idea. This does not provide for integration into a practical application as the mobile device and the entry device or kiosk are simply being used as a tool to execute the abstract idea. See MPEP 2106.05(f).
The applicant argues on page 20 that the adjustment of the queueing threshold based on a user selection of a digital instrument (such as a user selecting a payment card or account) and based on queue data involves a system feedback loop with data collected being used to determine if the threshold is to be adjusted or not. This is an argument that is directed to part of the abstract idea that is not an additional element of the claims. A person can look at collected data and make a determination that the threshold needs to be adjusted. The claim recites that the threshold is adjusted based on data such as usage patterns, operating times, queue wait times. This is part of the abstract idea, can be done by a person, and does not provide for integration into a practical application.
On page 20 the applicant argues that the cross system interaction between a queueing application and a third party digital wallet is something that is not typically found in convention queueing systems. This argument is that because the invention claims the use of computers the claim is eligible, which is not persuasive. The ability for the application of a user mobile device to communicate with another computer (third party server) is claiming the use of computers to send and receive data. This is using computers connected to each other by a network (a data communication link) as a tool to execute the abstract idea. The argument that this is not typical to have such systems connected to each other is not relevant to the eligibility of the claims because just because something is not typically found in prior art does not mean something is eligible, and because the mere connection of two computers to each other for the purposes of performing the abstract idea does not make the claims eligible. Also, novelty or non-obviousness over prior art does not mean that an abstract idea is eligible or that a claimed invention that involves an abstract idea (recites, sets forth, describes) is eligible. Novel and non-obvious abstract ideas are still abstract ideas. The existence of something in the prior art is not dispositive to the eligibility issue. The argument is not persuasive.
On page 21 the applicant argues that:
“conventional procedures for entry or access lack real-time data processing capabilities, leaving them unable to cope with high volumes of users and/or user devices, making them not scalable to different environments or user volumes. Specification, paragraphs [0008]-[0010]. As described in the specification, claim 8 also reflects an improvement to the technical fields of capacity management and the functioning of digital queuing systems by improving digital instrument systems to manage digital queuing and management of the digital queue”.
The above argument is more or less that because the claims are using computers to automate the procedure for entry into a facility it allows for more volumes of users. This is arguing the inherent efficiency and speed with which computers operate and is not something that makes the claim eligible. Using a computer to automate the process, where the computer and user device, etc., are simply being used as a tool to execute the abstract idea, does not amount to integration into a practical application. Also, the digital instrument system of the claim is not being improved in any manner. The applicant argues that the improvement is “improving digital instrument systems to manage digital queueing and management of the digital queue”. Using a system such as a computer to manage queueing into a facility and management of a queue is not an improvement to technology. Any alleged innovation lies in the abstract idea itself. The argument is not persuasive.
On page 21 the applicant argues that it was not conventional at the time of the invention to have a digital queueing system communicate with digital instrument systems to provide for queue management. This argument is directed at prior art and the existence of the claimed method in the prior art. The conventionality of the claimed invention as compared to other system does not impart eligibility to the claims. By reciting that the user device is coupled to the process with a network and that the user device can communicate with a third party system to enable interaction with a digital wallet, is claiming data communication between computers. This is not an unconventional arrangement as far as computers are well understood as being used to communicate data via a network. Calling one computer by one name and calling another computer by another name does not change the fact that in the claims that are pending, the network is being used to allow for data communication to occur, where the additional elements of the claim are being used as a tool to execute the abstract idea. This does not amount to significantly more. The same is noted for the use of the predictive model that has already been addressed by the examiner. The fact that the claim recites that a predictive model is used to perform the ranking is a link to the use of machine learning for the ranking step. This is an instruction for one to use a computer and machine learning to rank the digital instruments, where a person can otherwise perform the claimed ranking.
With respect to the applicant alleging that the claimed invention is not well understood, routine, or conventional, this is not persuasive. 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 address a claimed invention for its well understood, routine, and conventional nature in a given field to find that the claims are not eligible. To do so would be injecting a prior art analysis into the eligibility inquiry. Evidence at step 2B does not need to be provided for a claimed invention as a rule for step 2B. 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. So for the applicant to argue that the claim is reciting elements that are not conventional, this is not relevant to the issue at hand that is the mere computer implementation of the abstract idea. 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). Having the claimed systems connected to each other by a network for data communication to occur is an instruction for one to use computers to perform the abstract idea, where the issue of the conventionality of the abstract idea is not relevant to the analysis. The argument is not persuasive.
No other arguments are presented for claims 8-14. The rejection is being maintained.
With respect to claims 1-7, 15-20, and for claim 9, upon further consideration of the claimed invention as a whole in view of the applicant’s arguments it has been concluded that the claims are eligible as they contain sufficient additional elements that in combination do more than to just instruct one to use a computer and machine learning to perform the abstract idea. The applicant argues “Applicant respectfully submits that this arrangement is more than the sum of its parts, and cannot be reasonably interpreted to be reduced to routine, generic, or conventional queuing, nor can it be reasonably performed by humans using pen-and-paper analogs. Instead, it represents a specific technological implementation for controlling facility access using distributed sensing, computation, and machine validation, thereby reciting an inventive concept sufficient to satisfy Step 2B of the USPTO's eligibility analysis.”. This argument is found to be persuasive.
Conclusion
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.
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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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