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 08/21/2024.
Claims 18-37 are pending.
Applicant’s IDS submission is acknowledged and provided herewith.
The Drawings filed on 04/17/2024 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 18-37 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 18-37 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.
PNG
media_image1.png
930
645
media_image1.png
Greyscale
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 method, device, and a non-transitory, computer-readable storage media in claims 18-35. 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.
PNG
media_image2.png
681
881
media_image2.png
Greyscale
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, each of Claims 18-37 recite steps or instructions involving observations, judgements or evaluations, which are mental processes as these can be performed in the human mind under the 2019 PEG. Additionally, the claims also recite interactions such as following rules or instructions for a game, which is considered certain methods of organizing human activity. Specifically, independent Claim 18 (and similarly recited Claims 30 and 35) recites “18. A computer-implemented method for conveying information within a virtual environment, the method comprising:
determining a visual routine for a person to view in a virtual world using a device worn by the person in a real-world environment, the visual routine comprising a series of images representing projectiles, including triangles, wherein a triangle has a shape with a defined perimeter and an apex, the visual routine lasting a predetermined period of time;
presenting, based on the visual routine, a first triangle to the person in the virtual world; and
generating a virtual graphical mark at a prescribed location about the defined perimeter of the first triangle within the virtual world, the virtual graphical mark on the defined perimeter being visible to the person, a relative position of the virtual graphical mark with respect to the apex conveying information relating to an aspect of the visual routine.”
As indicated above, the underlined portions of representative Independent Claim 18, and similarly recited Independent Claims 30 and 35, 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 determining, presenting, and generating, …., which are steps that can be done in the human mind. Further, the dependent claims 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 18-35 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)).
Claims 18-37 further recite a VR headset, one or more processors, and a memory, yet these are recited so generically (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 steps in the claims 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. 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. At best, Applicant’s invention improves the user experience while using the game application. As the court said in IBM v Zillow Group Inc. (Fed. Cir, 2022):
Furthermore, “improving a user’s experience while using a computer application is not, without more, sufficient to render the claims” patent-eligible at step one. Customedia Techs., LLC v. Dish Network Corp., 951 F.3d 1359, 1365 (Fed. Cir. 2020).
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 18-37 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.
Claims 18-37 do not recite additional elements, individually or in combination, that 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 (i.e. a VR headset, one or more processors, and a memory, etc.) 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.
Further, under the 2019 PEG, a conclusion that an additional element is insignificant extra-solution activity in Step 2A should be reevaluated in Step 2B to determine if it is more than what is well-understood, routine, conventional activity in the field. 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. The dependent claims recite further extra-solution activities and further define the abstract idea of the independent claims.
Therefore, claims 18-37 are rejected under 35 U.S.C. 101 as being directed to non-statutory subject matter. See Alice Corporation Pty. Ltd. v. CLS Bank International, et al., 573 U.S. 208 (2014).
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 § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 18-24, 28-32, and 35 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by WO 2121/099862 to Koblin, as recited on the Information Disclosure Statement.
Regarding Claim 18, and similarly recited Claim 35, Koblin discloses a computer-implemented method for conveying information within a virtual environment, the method comprising:
determining a visual routine for a person to view in a virtual world using a device worn by the person in a real-world environment, the visual routine comprising a series of images representing projectiles, including triangles, wherein a triangle has a shape with a defined perimeter and an apex, the visual routine lasting a predetermined period of time (para. [0018], [0074] discloses providing a training routine to a virtual reality (VR) headset, where the training routine may include one or more user activities … For example, the activity may comprise a game in which the user has to virtually hit objects in a virtual space. The objects may appear in the virtual space at certain locations and at a certain rate);
presenting, based on the visual routine, a first triangle to the person in the virtual world (para. [0074]; and
generating a virtual graphical mark at a prescribed location about the defined perimeter of the first triangle within the virtual world, the virtual graphical mark on the defined perimeter being visible to the person, a relative position of the virtual graphical mark with respect to the apex conveying information relating to an aspect of the visual routine (paras. [0018], [0047]).
Regarding Claim 19, Koblin discloses the computer-implemented method of claim 18, wherein the virtual graphic mark comprises a gap within the defined perimeter of the first triangle (para. [0074] discloses the activity may comprise a game in which the user has to virtually hit objects in a virtual space. The objects may appear in the virtual space at certain locations and at a certain rate).
Regarding Claim 20, Koblin discloses the computer-implemented method of claim 18, wherein the aspect of the visual routine includes timing information related to the predetermined period of time (para. [0074]).
Regarding Claim 21, Koblin discloses the computer-implemented method of claim 18, wherein the aspect of the visual routine includes number of projectiles (para. [0074]).
Regarding Claim 22, Koblin discloses the computer-implemented method of claim 18, further comprising translating, based on a handheld controller, a real-hand location of the person's hand in the real-world environment to a corresponding virtual hand location in the virtual world (para. [0082]).
Regarding Claim 23, Koblin discloses the computer-implemented method of claim 22, further comprising providing a graphically generated and dynamically located handheld implement at the virtual hand location in the virtual world, wherein the handheld implement is viewable in the virtual world based on the person's real hand location in the real-world environment (paras. [0047], [0053]).
Regarding Claim 24, and similarly recited Claim 36, Koblin discloses the computer-implemented method of claim 18, wherein determining the visual routine further comprises:
generating, at a graphically generated portal located in front of the person in the virtual world, at least one target, wherein the at least one target is designed to be hit by a handheld implement in the virtual world when the at least one target is located near the person in the virtual world (paras. [0047], [0053], [0073]-[0074]);
projecting, from the portal, the at least one target towards the person in the virtual world (paras. [0047], [0053], [0073]-[0074]); and
changing at least one aspect of the at least one target before the target reaches the person in the virtual world (paras. [0047], [0053], [0073]-[0074]).
Regarding Claim 25. The computer-implemented method of claim 24, wherein changing the at least one aspect of the at least one target includes splitting the at least one target into two.
Regarding Claim 28, Koblin discloses the computer-implemented method of claim 22, wherein changing the at least one aspect of the at least one target includes changing a projection speed of the at least one target as it approaches the person (paras. [0074]).
Regarding Claim 29, Koblin discloses the computer-implemented method of claim 18, wherein the device comprises a virtual reality (VR) headset worn on a head of the person, the VR headset configured to provide images of scenes and objects to the person through the VR headset to generate a visual representation of a virtual world (para. [0047] discloses a person (VR user) 102 in a real-world environment 112 uses a VR device or headset 104 to view and interact with a virtual environment).
Regarding Claim 30, Koblin discloses a headset device worn on a head of a person in a real-world environment, the headset device comprising:
one or more processors (para. [0061]); and
a memory comprising instructions stored thereon, which when executed by the one or more processors (para. [0061]), causes the one or more processors to:
determine a visual routine for a person to view in a virtual world, the visual routine comprising a series of images representing projectiles (paras. [0047], [0053]-[0055], [0073]-[0074]);
present, based on the visual routine, a target object to the person in the virtual world including a first indicator (paras. [0047], [0053]-[0055], [0073]-[0074]);
generate a graphical mark at a prescribed location about a defined perimeter of the target object within the virtual world, the virtual graphical mark being visible to the person, and a relative position of the virtual graphical mark indicating a hit direction for the target object (paras. [0047], [0053]-[0055], [0073]-[0074]);
translate a real-hand location of the person's hand in the real-world environment to a corresponding virtual hand location in the virtual world (para. [0082]);
provide a handheld implement at the virtual hand location in the virtual world based on the handheld controller, wherein the handheld implement is viewable in the virtual world based on the real-hand location, the handheld implement includes a second indicator corresponding to the first indicator of the of the target object, and the handheld implement is designed to hit the target object in the virtual world when the target object is located near the person in the virtual world (paras. [0047], [0053]-[0055], [0073]-[0074]); and
change at least one aspect of the handheld implement before the target object reaches the person in the virtual world (paras. [0047], [0053]-[0055], [0073]-[0074]).
Regarding Claim 31, Koblin discloses the headset device of claim 30, wherein the handheld implement is an elongated member (para. [0131]).
Regarding Claim 32, Koblin discloses the headset device of claim 30, wherein the instructions, when executed by the one or more processors, cause the one or more processors to:
generate the target object at a portal located in front of the person in the virtual world (paras. [0047], [0053]-[0055], [0073]-[0074]);
project, from the portal, the least one target towards the person in the virtual world (paras. [0047], [0053]-[0055], [0073]-[0074]); and
change at least one aspect of the target object before the target object reaches the person in the virtual world (paras. [0047], [0053]-[0055], [0073]-[0074]).
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 26, 27, and 37 are rejected under 35 U.S.C. 103 as being unpatentable over WO 2121/099862 to Koblin in view of U.S. Patent Application Publication 2018/0108325 A1 to Schwarz et al. (hereinafter Schwarz).
Regarding Claim 26, and similarly recited Claim 37, Koblin discloses the computer-implemented method of claim 24, but fails to disclose wherein changing the at least one aspect of the at least one target includes graphically changing the at least one target to appear transparent to the person.
However, Schwarz discloses wherein changing the at least one aspect of the at least one target includes graphically changing the at least one target to appear transparent to the person (para. [0040] discloses The graphics rendering engine(s) 240, which may include one or more GPUs, is configured to render the occlusions with certain display properties, such as coloring, transparency or opaqueness, texturing, edge definition (e.g., thickness and/or sharpness vs. blurring and/or feathering), size, and so forth).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine the teachings of Schwarz with the combined teachings of Koblin in order to mitigate the effects associated with lag in the rendering of hand occlusions (para. [0026]).
Regarding Claim 27, and similarly recited Claim 37, Koblin discloses the computer-implemented method of claim 24, but fails to explicitly disclose wherein changing the at least one aspect of the at least one target includes graphically changing the at least one target to appear to be between 5% and 50% opaque to the person.
However, Schwarz discloses wherein changing the at least one aspect of the at least one target includes graphically changing the at least one target to appear to be between 5% and 50% opaque to the person (para. [0056] discloses As shown in FIG. 4, an object comprising a circle is presented with four different degrees of shading, which corresponds to different degrees or levels of transparency/opaqueness that might be associated with the circle when the circle is rendered as an occlusion in a mixed reality environment. When the occlusion is stationary, it might have a first transparency level associated with the shading of element 410. When movement of the occlusion is detected within the mixed reality, such as when a movement attribute of the occlusion meets a first threshold associated with a particular velocity, acceleration or lag, it might have an increased transparency, as reflected by the shading of element 420).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine the teachings of Schwarz with the combined teachings of Koblin in order to mitigate the effects associated with lag in the rendering of hand occlusions (para. [0026]).
Claims 33 and 34 are rejected under 35 U.S.C. 103 as being unpatentable over WO 2121/099862 to Koblin in view of U.S. Patent Application Publication 2017/0358139 A1 to Balan et al. (hereinafter Balan).
Regarding Claim 33, Koblin discloses the headset device of claim 32, but fails to disclose wherein the at least one aspect of the handheld implement includes a color of the handheld implement.
Balan discloses wherein the at least one aspect of the handheld implement includes a color of the handheld implement (paras. [0051]-[0052]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine the teachings of Koblin with that of Balan in order to determine the motion of hand of the user is trackable (Balan, para. [0051]).
Regarding Claim 34, Koblin discloses the headset device of claim 32, but fails to disclose wherein the at least one aspect of the handheld implement includes a length of the handheld implement.
Balan discloses wherein the at least one aspect of the handheld implement includes a length of the handheld implement (paras. [0051]-[0052]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine the teachings of Koblin with that of Balan in order to determine the motion of hand of the user is trackable (Balan, para. [0051]).
Conclusion
Claims 18-37 are examined above.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SHAUNA-KAY HALL whose telephone number is (571)270-1419. The examiner can normally be reached M-F 9:00AM-5:00PM.
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, David Lewis can be reached at (571) 272-7673. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/S.N.H/Examiner, Art Unit 3715 /DAVID L LEWIS/Supervisory Patent Examiner, Art Unit 3715