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 .
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 a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more. The claims are directed to at least one of abstract idea groupings, according to the 2019 Revised Patent Subject Matter Guidelines (Mathematical Concepts, Mental Processes and/or Certain Methods of Organizing Human Activity). Further, the claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception as discussed below.
Step 1 of the 2019 Revised Patent Subject Matter Eligibility Guidance
More specifically, regarding Step 1 of the 2019 Revised Patent Subject Matter Eligibility Guidance, the claims are directed to a system and/or process, which is are statutory categories of invention.
Step 2A-1 of the 2019 Revised Patent Subject Matter Eligibility Guidance
Next, the claims are analyzed to determine whether it is directed to a judicial exception.
Independent claim 1 recites the following, with the abstract ideas highlighted in bold, including an indication as to the abstract idea grouping(s) to which the indicated limitations belong to, according to the 2019 Revised Patent Subject Matter Guidelines. Independent claims 12 and 18, having substantially similar features, were also analyzed and to which the following conclusion is also applicable:
1. A gaming system comprising:
a game controller executing computer instructions that cause display of an electronic game in conjunction with a player interface; and
at least one tracking module communicatively coupled to the game controller, the at least one tracking module comprising at least one processor configured to execute other computer instructions stored in a memory, which, when executed by the at least one processor, cause the at least one processor to:
cause display of a plurality of avatars including at least a first avatar and a second avatar, each avatar of the plurality of avatars being linked to a corresponding stored account, wherein the first avatar is designated as an active avatar for a first play instance of the electronic game (Certain Methods of Organizing Human Activity);
cause display of an allocation criteria, the allocation criteria identifying a distribution of winning awards among the plurality of avatars and to the corresponding stored accounts, wherein distribution of winning awards is based at least on the active avatar designation (Certain Methods of Organizing Human Activity);
cause display of an avatar changeover criteria, the avatar changeover criteria identifying a condition for changing the active avatar (Certain Methods of Organizing Human Activity); and
cause display, in response to the avatar changeover criteria being satisfied, a changing of the active avatar from the first avatar to the second avatar for a second play instance of the electronic game (Certain Methods of Organizing Human Activity).
The limitations in claim 1 (as well as claim(s) 12 and 18) recite an abstract idea included in the groupings of Certain Methods of Organizing Human Activity, connected to technology only through application thereof using generic computing elements (e.g., a game controller, at least one processor, a memory, etc.) and/or insignificant extra-solution activity. According to the 2019 Revised Patent Subject Matter Guidelines:
Certain Methods of Organizing Human Activity include:
1. Fundamental Economic Principles or Practices (including hedging (i.e., wagering), insurance, mitigating risk);
2. Commercial or Legal Interactions (including agreements in the form of contracts; legal obligations; advertising, marketing or sales activities or behaviors; business relations);
3. Managing Personal Behavior or Relationships or Interactions Between People (e.g. social activities, teaching, and following rules or instructions). The interaction encompasses both activity of a single person (for example a person following a set of instructions) and activity that involves multiple people (such as a commercial or legal interaction). Thus, some interactions between a person and a computer (for example a method of anonymous loan shopping that a person conducts using a mobile phone) may fall within this grouping.
Specifically, the instant claims include functions/limitations, as highlighted in the independent claim above, that constitute at least:
A. Wagering (e.g., “cause display of an allocation criteria, the allocation criteria identifying a distribution of winning awards among the plurality of avatars and to the corresponding stored accounts”), which is a form of hedging, which is an abstract idea included in the grouping of Fundamental Economic Principles or Practices. These limitations are interpreted as at least Fundamental Economic Principles or Practices insomuch as the claim limitations are directed to performing the Fundamental Economic Principles or Practices while only generically connected to interaction with a computer utilizing non-special purpose generic computing elements and/or insignificant extra-solution activity as set forth in the claims.
B. Formation of a gambling contract (i.e., by a player placing a wager the player is entering into a contract with a game operator), which is an abstract idea included in the grouping of Commercial or Legal Interactions. These limitations are interpreted as at least Commercial or Legal Interactions insomuch as the claim limitations are directed to performing the Commercial or Legal Interactions while only generically connected to interaction with a computer utilizing non-special purpose generic computing elements and/or insignificant extra-solution activity as set forth in the claims; and/or
C. Following rules and/or instructions, such as including the functions related to the playing of a game, which is an abstract idea included in the grouping of Managing Personal Behavior or Relationships or Interactions Between People. These sets of rules are interpreted as at least certain methods of organized human activity insomuch as the claim limitations are directed to performing or following the set of rules or instructions concerning a game while only generically connected to interaction with a computer utilizing non-special purpose generic computing elements and/or insignificant extra-solution activity, as set forth in the claims.
Regarding dependent claims 2-11, 13-17 and 19-20:
Each claim is dependent either directly or indirectly from the independent claim identified above and includes all the limitations of said independent claim. Therefore, each dependent claim recites the same abstract idea as identified above. Each of the dependent claim further describes additional aspects of the abstract idea, i.e., additional aspects to the Methods of Organizing Human Activity. For example, some dependent claims merely provide additional game rules or fundamental economic practices to be performed and/or additional insignificant extra-solution activity, without anything more significant to establish eligibility under 35 U.S.C. 101.
Step 2A-2 of the 2019 Revised Patent Subject Matter Eligibility Guidance
The second prong of step 2a is the consideration if the claim limitations are directed to a practical application.
Limitations that are indicative of integration into a practical application:
-Improvements to the functioning of a computer, or to any other technology or technical field - see MPEP 2106.05(a)
-Applying or using a judicial exception to effect a particular treatment or prophylaxis for a disease or medical condition – see Vanda Memo
-Applying the judicial exception with, or by use of, a particular machine - see MPEP 2106.05(b)
-Effecting a transformation or reduction of a particular article to a different state or thing - see MPEP 2106.05(c)
-Applying or using the judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment, such that the claim as a whole is more than a drafting effort designed to monopolize the exception - see MPEP 2106.05(e) and Vanda Memo
Limitations that are not indicative of integration into a practical application:
-Adding the words “apply it” (or an equivalent) with the judicial exception, or mere instructions to implement an abstract idea on a computer, or merely uses a computer as a tool to perform an abstract idea - see MPEP 2106.05(f)
-Adding insignificant extra-solution activity to the judicial exception - see MPEP 2106.05(g)
-Generally linking the use of the judicial exception to a particular technological environment or field of use – see MPEP 2106.05(h)
Claims 1-20 clearly do not improve the functioning of a computer, as they only incorporate generic computing elements, do not effect a particular treatment, and do not transform or reduce a particular article to a different state or thing. Similarly, there is no improvement to a technical field. In addition the claims do not apply the judicial exception with, or by use of a particular machine. The claims do not apply or use the judicial exception in a meaningful way. The claimed invention does not suggest improvements to the functioning of a computer or to any other technology or technical field (see MPEP 2106.05 (a)).
This judicial exception is not integrated into a practical application because the claimed invention merely applies the judicial exception, or mere instructions to implement an abstract idea on a computer, or merely uses a computer as a tool to perform the abstract idea (MPEP 2106.05 (f)) and/or generally links the use of the judicial exception to a particular technology or field of use (MPEP 2106.05 (h)). The claimed computer components are recited at a level of generality and are merely invoked as tool to perform the abstract idea. Simply implementing the abstract idea on a generic computer is not a practical application of the abstract idea.
For the reasons as discussed above, the claim limitations are not integrated to a practical application.
Step 2b of the 2019 Revised Patent Subject Matter Eligibility Guidance
Next, the claims as a whole are analyzed to determine whether any element, or combination of elements, is sufficient to ensure that the claim amounts to significantly more than the exception.
The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because no element or combination of elements is sufficient to ensure any claim of the present application as a whole amounts to significantly more than one or more judicial exceptions, as described above. For example, the recitations of utilization of “a game controller, at least one processor, a memory”, etc. used to apply the abstract idea merely implements the abstract idea at a low level of generality and fail to impose meaningful limitations to impart patent-eligibility. These elements and the mere processing of data using these elements do not set forth significantly more than the abstract idea itself applied on general purpose computing devices. The recited generic elements are a mere means to implement the abstract idea. Thus, they cannot provide the “inventive concept” necessary for patent-eligibility. “[I]f a patent’s recitation of a computer amounts to a mere instruction to ‘implement]’ an abstract idea ‘on ... a computer,’... that addition cannot impart patent eligibility.” Alice, 134 S. Ct. at 2358 (quoting Mayo, 132 S. Ct. at 1301). As such, the significantly more required to overcome the 35 U.S.C. 101 hurdle and transform the claimed subject matter into a patent-eligible abstract idea is lacking. Accordingly, the claims are not patent-eligible.
Further, the claims would require structure that is beyond generic, such as structure that can be interpreted analogous to a general purpose structure and general purpose computing elements in that they represent well-understood, routine, conventional elements that do not add significantly more to the claims. See Alice Corp. v. CLS Bank International, 134 S. Ct. at 2358-59. The elements of a game controller, at least one processor, and a memory are well known conventional devices used to electronically implement a game as evidence by U.S. 2004/0043813 which discloses that a conventional gaming machine comprises elements such as a game controller, at least one processor, and a memory to control the overall operation of the gaming machine (¶20, ¶41, ¶62-63). See Berkheimer v. HP Inc., 881 F.3d 1360 (Fed. Cir. 2018).
The dependent claims do not add “significantly more” for at least the same reasons as directed to their respective independent claims, at least based on the position, as discussed above, that each of the dependent claims merely provide additional limitations to further expand the abstract idea of the independent claims, without adding anything which would establish eligibility under 35 U.S.C. 101.
Consequently, consideration of each and every element of each and every claim, both individually and as an ordered combination, leads to the conclusion that the claims are not patent-eligible under 35 USC §101.
Claim Rejections - 35 USC § 102
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 (i.e., changing from AIA to pre-AIA ) 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.
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.
Claim(s) 1-20 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Hornik et al (U.S. 2006/0100019).
Regarding claims 1, 12, and 18, Hornik discloses:
a gaming system (¶37) comprising:
a game controller executing computer instructions that cause display of an electronic game in conjunction with a player interface (¶42, CPU 30 controls gameplay operation of gaming terminal 10); and
at least one tracking module communicatively coupled to the game controller, the at least one tracking module comprising at least one processor configured to execute other computer instructions stored in a memory (¶42-43, CPU 30 includes one or more processors in conjunction with stored programs, routines and instructions for controlling operations of the gaming machine), which, when executed by the at least one processor, cause the at least one processor to:
cause display of a plurality of avatars including at least a first avatar and a second avatar, each avatar of the plurality of avatars being linked to a corresponding stored account, wherein the first avatar is designated as an active avatar for a first play instance of the electronic game (¶68, players are presented a plurality of avatars from which to select for use during play of a game);
cause display of an allocation criteria, the allocation criteria identifying a distribution of winning awards among the plurality of avatars and to the corresponding stored accounts, wherein distribution of winning awards is based at least on the active avatar designation (¶52, 60, the system distributes awards among active player avatars in a group based on placed wagers and further displays to players in the group game the characteristics, rules and odds for the game);
cause display of an avatar changeover criteria, the avatar changeover criteria identifying a condition for changing the active avatar (¶55, ¶57-58, players may be eliminated from a group game by the other players in the group for any reason); and
cause display, in response to the avatar changeover criteria being satisfied, a changing of the active avatar from the first avatar to the second avatar for a second play instance of the electronic game (¶55, ¶57-58, removed players may be replaced by another player avatar or a computer controlled avatar).
Regarding claims 2, 13, and 19, Hornik discloses that which is discussed above, and further discloses that:
the first avatar is associated with a first player identifier for a first player and the second avatar is associated with a second player identifier for a second player (¶68-69, ¶71, each player may select an avatar, i.e., a first player selects a first avatar and a second player selects a second avatar), wherein the instructions, when executed by the at least one processor further cause the at least one processor to:
cause display of the first player identifier for the first game instance (¶60, ¶68-69, ¶71, a selected avatar is designated active for each player by the gaming terminal after selection by the player and displayed for a play of the game); and
cause display of the second player identifier for the second game instance (¶55, ¶57-58, ¶60, ¶68-69, ¶71, replacement player avatars or computer controlled avatars are designated as active for a second play of the game).
Regarding claims 3, 14, and 20, Hornik discloses that which is discussed above, and further discloses that:
the avatar changeover criteria include at least one of a predetermined number of games, a predetermined number of wins, an end point of a game round, and a random occurrence (¶55-56, selection criteria for elimination may be based on duration of play, winning during a session, etc.).
Regarding claims 4 and 15, Hornik discloses that which is discussed above, and further discloses that:
the instructions, when executed by the at least one processor, further cause the at least one processor to:
store, in the memory and associated with the first avatar, a first amount associated with a first winning outcome occurring during the first play instance (¶48-49, eligible players are awarded prizes, i.e., the first player with the first avatar is awarded a first award);
allocate a first portion of the first amount to the first account (¶39, awards are allocated to the player’s tracking account, i.e., the first player’s first award is allocated to the first player’s tracking account); and
allocate a second portion of the first amount to the second account, wherein the first portion and the second portion are based on the allocation criteria (¶39, awards are allocated to the player’s tracking account, i.e., a second player’s second award is allocated to a second player’s tracking account).
Regarding claims 5 and 16, Hornik discloses that which is discussed above, and further discloses that:
the instructions, when executed by the at least one processor, further cause the at least one processor to:
store, in the memory and associated with the second avatar, a second amount associated with a second winning outcome occurring during the second play instance (¶48-49, eligible players are awarded prizes, i.e., the second player with a second avatar is awarded a second award during a second game); and
allocate the first portion of the second amount to the second account (¶39, awards are allocated to the player’s tracking account, i.e., the second player’s second award is allocated to the second player’s tracking account).
Regarding claim 6, Hornik discloses that which is discussed above, and further discloses that:
the player interface is communicatively coupled to the game controller (¶42, CPU 30 controls gameplay operation of gaming terminal 10) and comprises:
a display configured to display the first play instance and the second play instance of the electronic game (¶37, display 26 and/or secondary display 27); and
a credit input mechanism including at least one of a card reader, a ticket reader, a bill validator, or a coin input mechanism (¶38, wager acceptor 16).
Regarding claim 7, Hornik discloses that which is discussed above, and further discloses that:
the instructions, when executed by the at least one processor, further cause the at least one processor to designate the active avatar in response to a user input (¶68, players are presented a plurality of avatars from which to select for use during play of a game via a player selection input).
Regarding claims 7 and 17, Hornik discloses that which is discussed above, and further discloses that:
the instructions, when executed by the at least one processor, further cause the at least one processor to:
receive a first wager amount for the first play instance and a second wager amount for the second play instance (¶20, ¶68, each player places a wager to play the group-wagering game); and
record the first wager amount against the first avatar and the second wager amount against the second avatar (¶20, ¶60, ¶68, each player places a wager to play the group-wagering game and that wager amount is associated with the player and used to determine the player’s share of awards).
Regarding claim 9, Hornik discloses that which is discussed above, and further discloses that:
the instructions, when executed by the at least one processor, further cause the at least one processor to award, based on at least one of the first wager amount and a first award amount, a
bonus credit to the first account (¶60, the amount to each player account is based on the wagers placed).
Regarding claim 10, Hornik discloses that which is discussed above, and further discloses that:
the instructions, when executed by the at least one processor, further cause the at least one processor to provide an additional game, independent of the first play instance and the second play instance, in which the first avatar and the second avatar compete against each other (¶50, ¶59, ¶68, the gaming control system may encourage friendly competition between group-members by pitting group-members against each other during supplemental game play).
Regarding claim 10, Hornik discloses that which is discussed above, and further discloses that:
the electronic game is displayed on a main game display (¶37, display 26 displays the basic wagering game), and wherein the instructions, when executed by the at least one processor, further cause the at least one processor to:
cause the main game display to change between a game data mode and an avatar allocation mode, wherein display of the allocation criteria and the avatar changeover criteria occurs in the avatar allocation mode, and wherein display of the first play instance and the second play instance occurs in the game data mode (¶55, ¶57-58, ¶60-63, the system provides the player a display of the group game (i.e., game data mode) and following a game provides the player with an interface which allows the player cause removal of a player (i.e., avatar allocation mode)).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JASON PINHEIRO whose telephone number is (571)270-1350. The examiner can normally be reached M-F 8:00A-4:30P ET.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Dmitry Suhol can be reached at (571) 272-4430. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Jason Pinheiro/ Examiner, Art Unit 3715
/DMITRY SUHOL/ Supervisory Patent Examiner, Art Unit 3715
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