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 10/22/25 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 § 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 method, a system and a non-transitory computer readable medium with instructions to perform the recited steps; therefore, the claims pass step 1 of the eligibility analysis.
For step 2A, the claim(s) 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.
Using claim 1 as a representative example that is applicable to claims 8, 15, the abstract idea is defined by the elements of:
sending, based on a first indication that a queue time is greater than a queuing threshold for a 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 instruments associated with the wallet
rank the instruments and
display selectable ranked list of the instruments prompting the user to select a[n] instrument from among the selectable ranked list of the instruments;
receiving, the selected instrument
adjusting the queuing threshold based on the selected instrument;
causing, based on the selected instrument, display [of] 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 image data encoded with an access identifier that enables 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 digital 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.
For claim 1, the additional elements are the at least one computer processor, the user device with a digital queueing application that also has an interface, 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.
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 and the user device with an application and an interface, where the computer processor(s) and the user device can communicate with other computers/systems via a network is claiming computer implementation for the abstract idea. This 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 claim 8, in addition to that above for claim 1, the additional elements also include the recited memory and processor that is configured to perform the steps that define the abstract idea. The claim also refers to the user device, and calling the instrument a digital instrument.
For claim 15, the additional elements are the non-transitory computer readable medium with instructions to perform the steps that define the abstract idea. Claim 15 is reciting a medium with stored instructions that can execute the abstract idea but is not reciting the full the additional elements that claim 1 recites due to being a non-transitory medium and not a system or method type of claim.
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 computer and a user device with an interface, both of which can communicate via a network with other computers/systems, and memory (non-transitory CRM) that is being merely used as a tool to execute the abstract idea, see MPEP 2106.05(f). The above noted 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 (a machine learning model). The at least one computer processor and the user device with an application and an interface for data display, where the computer processor(s) and the user device can communicate with other computers/systems via a network is claiming computer implementation for the abstract idea. This 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 above 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.
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 to perform steps that define the abstract idea and the use of a predictive trained model, as was addressed for the 2nd prong.
For claims 2, 9, 16, the abstract idea is being further defined by the recitation to the generating of the first indication based on sensor data. This is part of the abstract idea and is claiming a data analysis step that can be done by people. The sensor at the facility is not positively claimed as an element to the method, just that the sensor data is used to generate the indication. All that is claimed is a further embellishment of the same abstract idea that was set forth 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 3, 10, 17, claiming that the sending of the notification is based on an indication that the user is within proximity to the facility is considered to be part of the abstract idea. The data that the sending of the notification is based on is an element that is part of the abstract idea and is part of the data analysis that is occurring, and that is part of the abstract idea. 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 claims 4, 11, 18, the claimed causing of a display of a route from the location to the facility is a further recitation to the abstract idea of claims 1, 8, and 15. 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 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 5, 12, 19, 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 claims 6, 13, 20, 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 claims 7, 14, the claimed communicating of the queue data that includes facility usage patterns, peak operating times, and queue wait times, with adjusting of the threshold are elements that are part of the abstract idea. The at least one computer processor and the queueing application have been treated in the same manner as set forth for claims 1 and 8, 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.
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 10 of the reply the applicant argues that the claims are reflecting an improvement to technology for the field of automated queue management. The field of queue management is not a technology field and is not technology, this is the management of a waitlist or line for admission to a facility. Queue management is not technology. Calling the queue management automated is an implication that computers are being used to “automate” the process. This does not render the claims as eligible.
On pages 11-12 of the reply the applicant argues that the claims are improving the functioning of a computer or technical field, and argues that the claim as a whole must be evaluated for an improvement to technology. The examiner agrees that the claims as a whole are to be evaluated for claim eligibility and the claims as a whole are evaluation to determine if there is an improvement to technology. The examiner does not agree with the applicant that the result of the claims is an improvement to technology, as will be addressed by the examiner. Technology is not being improved by the claimed invention.
The applicant argues on pages 12-14 that the claims are improving technology. The applicant argues that the claims recite an improvement in managing access to a facility. Managing access to a facility is what defines the abstract idea so even if the management of access to a facility is improved, that is an improvement in the abstract idea itself and not an improvement to technology. The applicant argues that the claims are improving user experience by reducing wait times for access to a facility. This is not an improvement to technology but is an improvement to the perceived ease in which an user obtains access to a facility. This does not result in an improvement to technology. The applicant further argues that the user device is executing the queueing application and is executing the predictive model, which is alleviating server overload and reduces the risk of system freezing of crashing and improves reliability. The applicant is arguing that by having the user device execute the queuing application and execute the predictive model, this is an improvement to technology because the server side of the system does not have to expend computing resources to execute the queuing application or the predictive model. The applicant argues that this is because the user device is executing the queueing application and is the one executing the predictive model, not the server (computing processor). This is not persuasive because this is claiming the local processing of data versus having a remote server process the data, and is not an improvement to technology. For many years if not decades the computing field has recognized that one can execute programs and process data remotely with a remote server system or one can execute a program and process data locally on a local device. Having the user device execute the queueing application does not result in an improvement to any of the technology recited in the claims. While this might reduce load on a server, the concept of local versus remote data processing is something that is old in the art of computing and does not represent an improvement to technology. One could equally argue that having a remote server execute the queueing application and execute a predictive model is improving the user device because the user device does not have to expend computing resources. Such as argument would be dubious at best. In support of the examiner’s position that having the user device perform data processing is not an improvement to technology that renders the claims eligible, the examiner has cited two patent documents at the end of this office action that disclose the concept of local versus remote data processing and both references disclose that having a local device perform data processing saves remote server computing resources, which is the same that the applicant is arguing is an improvement to technology. When one is dealing with connected computers, data processing can either be local or it can be remotely performed and choosing one or the other does not serve to improve technology. Having the user device execute the queueing application and execute the predictive model does arguably save computing resources for a remote server but does not serve to improve the server or the user device of any technology of the claim in any way. If the user device executing the application were considered to constitute an improvement to technology, then any and all inventions and patent claims that employ a user device with an application running on the user device to perform a function would also be an improvement to technology and would be eligible. The claims are merely reciting what device is executing the queueing application and it naturally follows that if one of two devices is executing the application then the other device does not have to execute the application. That is not an improvement to technology that renders the claims eligible. The argument is not persuasive to overcome the 101 rejection.
On pages 15-17 the applicant argues that the claims are similar to example 47 from the USPTO examples for 101, and that generic computing technology can be used to render an improvement to technology. The argument from the applicant is that example 47 instructs examiners to consult the specification for guidance about a claimed invention resulting in an improvement to technology. The examiner does not disagree with this assertion but the examiner disagrees with the applicant that having the user device execute the queuing application and the predictive model is an improvement to technology, as was addressed previously. The user device, the computer processor(s) are not being improved, and the network for communication is not being improved either. The limitation that the applicant argues is an improvement to technology is something that the computing field has recognized for many years and is the act of local versus remote data processing. This does not result in any of the technology of the claim being improved in the opinion of the examiner. Having one of two devices perform data processing does not improve the other device because the other device (server side) is the same. The argument is not persuasive.
Applicant argues step 2B on pages 17-18. The applicant argues that it was not conventional for queueing systems to communicate with digital instrument systems for automated queue management. The 101 inquiry is not based on prior art and whether or not prior systems performed the invention that has been claimed. The examiner however disagrees with the premise that it was not known to have computers communicate with a user device for automated queue management, as the cited prior art of record teach queuing systems that communicate with a user device to allow access to a facility. The ability for the queuing system to communicate with another device or system is an instruction for one to use a computer and does not render the claims eligible.
The applicant argues that the claimed elements are not well understood routine or conventional. This is not persuasive because the issue at hand is not whether or not the claimed elements are conventional or routine, rather the issue at hand is the mere implementation of the abstract idea using computers. A claim does not have to be proven by an examiner to be reciting elements that are well understood, routine, and conventional (which is a higher standard that just being known in the art) for an eligibility rejection to be proper. When a limitation is found to be an insignificant extra solution activity at the 2nd prong, the limitation must be re-evaluated at step 2B for its well understood, routine, and conventional nature (as set forth in the Berkheimer memo). The pending claims do not contain a limitation that has been found to be an insignificant extra solution activity so the issue of well understood, routine, and conventional is not relevant to the analysis. The argument is not persuasive.
The applicant argues that the use of the queuing application and a third party system address a technical problem. This is not persuasive because the argued limitations are directed to computer implementation of the abstract idea that is using a network for data communication. That does not amount to solving a technical problem in the art. The applicant also argues that the use of the model and the training are elements that are not abstract and amount to significantly more. This is not persuasive. The use of the predictive model is a link to computer implementation for the abstract idea and can be construed as a link to a particular technological environment (computer implementation). As to the training of the model, no training of a model is recited in the scope of the claims. All that is claimed is the execution of the model that has been trained (past tense). That limitation as written does not have the effect of claiming training as part of the claimed invention. The argument is not commensurate with the scope of the claims in this regard. The argument is not persuasive. Also, the argument that having the user device execute the queuing application and the predictive model is an improvement to technology is not persuasive for reasons already addressed. The user device, the computer processor(s) are not being improved, and the network for communication is not being improved. The limitation that the applicant argues is an improvement to technology is something that the computing field has recognized for many years and is the act of local versus remote data processing. This does not result in any of the technology of the claim being improved. Having one of two devices perform data processing does not improve the other device because the other device (server side) is the same. The argument is not persuasive.
The applicant argues on page 18 that the claims recite a particular machine. This is not persuasive. The limitations of a computer processor, user device, a third party system, network, the interface, are generically recited and read on generic computers that are being used to execute the abstract idea. These elements do not claim a particular machine. The examiner notes that a general purpose computer that applies a judicial exception, such as an abstract idea, by use of conventional computer functions has not been found by the courts to qualify as a particular machine.
Claiming a computer that is programmed to perform certain functions does not quality as a particular machine and is an instruction for one to use a computer as a tool to execute the steps that defines the abstract idea and does not render the claims eligible.
The argument on page 19 that the lack of a prior art rejection of the claims requires that the claims be found eligible is not persuasive. Novelty or non-obviousness over prior art does not equate to claim eligibility. From SAP AMERICA, INC., Plaintiff-Appellee v. INVESTPIC, LLC:
“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 reliance upon Ex parte Ekambaram , Ex parte Clementi, and Ex parte Sandhu are noted by the examiner; however, all that has been done is to generally alleges that these cases are relevant to the issues at hand for the 35 USC 101 rejection with no credible nexus being shown to the pending claims. The general allegation is not persuasive.
No other arguments have been presented and the argument for the dependent claims relies upon the arguments for the independent claims which is not found to be persuasive.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Palmer (7882538) teaches in paragraph 034 that by having data processing occur locally it will reduce the load on a remote server. This was known in the computing field in 2006 as is indicated by the filing date for Palmer.
Evermann et al. (20080154608) teaches in paragraph 033 that by having computations performed locally at a user device, it will reduce the load on a remote server. This was known in the art in 2007.
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.
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/DENNIS W RUHL/ Primary Examiner, Art Unit 3626