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 14, 15 and 16, having substantially similar features, were also analyzed and to which the following conclusion is also applicable:
1. A non-transitory computer-readable storage medium storing computer-readable instructions thereon which, when executed by a computer that includes a processor and a memory and is capable of acquiring a sleep state of a user as sleep information, causes the computer to perform a method, the method comprising:
acquiring the sleep information of the user a plurality of times (Mental Processes);
acquiring play information of the user in a game (Mental Processes);
associating the sleep information with the play information (Mental Processes); and
determining a plurality of play results based on each combination of the associated play information and sleep information (Mental Processes).
The limitations in claim 1 (as well as claim(s) 14, 15 and 16) recite an abstract idea included in the groupings of Mental Processes, connected to technology only through application thereof using generic computing elements (e.g., computer readable storage medium, a processor, a memory, a measurement terminal, etc.) and/or insignificant extra-solution activity. According to the 2019 Revised Patent Subject Matter Guidelines:
Mental Processes include concepts performed in the human mind (including an observation, evaluation, judgement, opinion).
Specifically, the instant claims include functions/limitations, as highlighted in the independent claim above, that constitute at least:
A. Concepts performed in the human mind (e.g., “acquiring the sleep information of the user a plurality of times”), which is an abstract idea included in the grouping of Mental Processes. These limitations are interpreted as at least Mental Processes insomuch as the claim limitations are directed to performing the concepts in the human mind, 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 2-13 and 17-20:
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 Mental Processes. For example, some dependent claims merely provide additional Mental Processes 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 “computer readable storage medium, a processor, a memory, a measurement terminal”, 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 computer readable storage medium, a processor, a memory, a measurement terminal are well known conventional devices used to electronically implement a game as evidence by U.S. 2011/0216060, which discloses that a conventional gaming device comprises elements such as a computer readable storage medium, a processor, a measurement terminal and a memory to control the overall operation of the gaming device (¶100). 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 § 103
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 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, 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.
Claim(s) 1-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hattori et al (U.S. 2017/0136348) in view of de Zambotti et al (U.S. 2014/0316191).
Regarding claims 1 and 14-16, Hattori discloses:
a non-transitory computer-readable storage medium storing computer-readable instructions thereon which, when executed by a computer that includes a processor and a memory and is capable of acquiring a sleep state of a user as sleep information (¶112-113, ¶137, terminal 5 which includes a processor and memory which executes programming to control the terminal 5 to receive sleep health information a terminal system 2), causes the computer to perform a method, the method comprising:
acquiring the sleep information of the user (¶137, Fig. 4, the terminal system 2 collects sleep data once during a sleep session, calculates various sleep indices for each sleep session (i.e., sleep information) and transmits it to the terminal 5);
acquiring play information of the user in a game (¶192-196, terminal 5 executes a game which includes a player object 51 which is controlled by input by the user);
associating the sleep information with the play information (¶195-196, the acquired health information is used as an input to the displayed game); and
determining a play result based on the associated play information and sleep information (¶196-198, the display of the game is determined based on the sleep information (e.g., a number of lives of the game character is based on the calculated energy level of the user)).
However, Hattori does not specifically disclose that:
the sleep information is acquired a plurality of times; or
the play results are based on each combination of the play information and sleep information.
de Zambotti teaches:
a system capable of acquiring a sleep state of a user as sleep information (¶14, ¶39, ¶45, virtual reality system 100 which includes sensors which monitor the physiological signals of a user during a sleep session), wherein the system acquires sleep information a plurality of times (¶39, ¶45, the system 100 uses the sensors to collect signals over the course of a sleep session and sleep patterns over the course of multiple sleep sessions), and wherein displayed content is modified based on the acquired sleep information of the user (¶40, ¶45-46, presentation of immersive content is modified based on the sleep signals received).
Therefore, it would have been obvious to one of ordinary skill in the art at the time of filing to utilize the multiple sleep readings, as taught by de Zambetti, in the system, as taught by Hattori, in order to yield the predictable result of providing greater accuracy by incorporating multiple readings into the sleep analysis used for determining the game results.
Regarding claims 2 and 17, Hattori discloses that which is discussed above, and further discloses:
acquiring the sleep information including measurement date information indicating a date when the sleep information was measured and a sleep parameter determined on the basis of a sleep state of the user for the sleep information corresponding to each of the plurality of times (¶194-196, ¶200-201, Fig. 7, the displayed sleep information includes a date of the sleep information and the sleep information 54);
acquiring the play information including play date information indicating a date on which the game was played and a game parameter based on results of the play (¶194-197, Fig. 7, the game results are tied to a specific data (e.g., “Mar 3”));
associating the sleep parameter and the game parameter on the basis of the acquired measurement date information and the acquired play date information (¶194-197, Fig. 7, the display of the game is determined based on the sleep information (e.g., a number of lives of the game character is based on the calculated energy level of the user)); and
determining the play results on the basis of a combination of the associated sleep parameter and game parameter (¶194-197, Fig. 7, a number of lives of the game character is based on the calculated energy level of the user).
Regarding claims 3 and 18, Hattori discloses that which is discussed above, and further discloses that:
in a period that the play information to be associated is not present, generating the play information in the period, and associating the generated play information and the sleep information (¶205-206, a menu is provided to the player which allows the player to initiate the start of a mini-game (i.e., a game is not present (started) and is generated and associated with the sleep information)).
Regarding claims 4 and 19, Hattori discloses that which is discussed above, however, does not specifically disclose:
generating the play information on the basis of play information in another period preceding the period.
de Zambotti teaches:
a system capable of acquiring a sleep state of a user as sleep information (¶14, ¶39, ¶45, virtual reality system 100 which includes sensors which monitor the physiological signals of a user during a sleep session), wherein the system acquires sleep information a plurality of times (¶39, ¶45, the system 100 uses the sensors to collect signals over the course of a sleep session and sleep patterns over the course of multiple sleep sessions), and wherein the sleep information includes information in another period preceding the period (¶39, ¶45, the system 100 uses the sensors to collect signals over the course of a sleep session and sleep patterns over the course of multiple sleep sessions).
Therefore, it would have been obvious to one of ordinary skill in the art at the time of filing to utilize the multiple sleep readings, as taught by de Zambetti, in the system, as taught by Hattori, in order to yield the predictable result of providing greater accuracy by incorporating multiple readings into the sleep analysis used for determining the game results.
Regarding claims 5 and 20, Hattori discloses that which is discussed above, and further discloses that:
acquiring the sleep information of the user from a plurality of measurement terminals capable of measuring a sleep state of the user as sleep information (¶119, ¶126, ¶137, ¶169, handheld terminal 5 which includes a microphone 15 which senses audio and base 6 which includes doppler sensor 24, the various sleep indices for each sleep session (i.e., sleep information) are calculated based on the sensor readings and sounds sensed by the microphone 15).
However, Hattori does not specifically disclose that:
the sleep information is acquired a plurality of times.
de Zambotti teaches:
a system capable of acquiring a sleep state of a user as sleep information (¶14, ¶39, ¶45, virtual reality system 100 which includes sensors which monitor the physiological signals of a user during a sleep session), wherein the system acquires sleep information a plurality of times (¶39, ¶45, the system 100 uses the sensors to collect signals over the course of a sleep session and sleep patterns over the course of multiple sleep sessions).
Therefore, it would have been obvious to one of ordinary skill in the art at the time of filing to utilize the multiple sleep readings, as taught by de Zambetti, in the system, as taught by Hattori, in order to yield the predictable result of providing greater accuracy by incorporating multiple readings into the sleep analysis used for determining the game results.
Regarding claim 6, Hattori discloses that which is discussed above, and further discloses:
determining a first play result in a first period on the basis of the play information and the sleep information in the first period (¶38, ¶196-198, sleep information is obtained over a plurality of sleep periods of the user, for example the display of the game is determined based on the sleep information from a first sleep period of the user (e.g., a number of lives of the game character is based on the calculated energy level of the user from the first sleep period)), and
determining a second play result in a second period on the basis of the play information and the sleep information in the second period (¶38, ¶196-198, sleep information is obtained over a plurality of sleep periods of the user, for example the display of the game is determined based on the sleep information from a second sleep period of the user (e.g., a number of lives of the game character is based on the calculated energy level of the user from the second sleep period)),
the first period is a period later than the second period (¶38, for example a second sleep session preceding a first sleep session), and
an influence of the sleep information on the first play result is greater than an influence of the sleep information on the second play result (¶196-198, the display of the game is determined based on the on the most recent sleep information (e.g., a number of lives of the game character is based on the calculated energy level of the user for the first sleep session), the examiner interprets the game basing the display of the game elements on the most recent sleep session as the most recent (i.e., first sleep session) having more influence in the game).
Regarding claim 7, Hattori discloses that which is discussed above, and further discloses:
providing a notification indicating that an influence of the sleep information on the play result becomes less influential to the user in a case where acquiring the sleep information has not been executed for a predetermined period of time or more (¶189-190, game parameters and advice is provided to the user based on the health information to encourage the user to not skip measurements).
Regarding claim 8, Hattori discloses that which is discussed above, and further discloses:
acquiring the sleep information of the user a predetermined number of times, wherein the predetermined number of times is a value defined in accordance with progress of a game (¶261, ¶375, progressing in the game requires giving a predetermined amount of damage to an enemy character, wherein player give damage to an enemy character based on the sleep information acquired (i.e., acquiring sleep information a number of times required to defeat an enemy character)).
Regarding claim 9, Hattori discloses that which is discussed above, and further discloses:
presenting the play result to the user, wherein presenting the play result includes performing
presentation by selectively switching presenting one play result in a first presentation mode to the user in a case where a play result is the one play result, and presenting a plurality of play results in a second presentation mode to the user in a case where play results are the plurality of play results (¶403, game elements representing a first and second evaluation sleep session may be presented at separate times of at the same time).
Regarding claim 10, Hattori discloses that which is discussed above, and further discloses that:
the second presentation mode includes at least one of:
a presentation mode in which the plurality of play results are presented in an order based on sleep scores determined by the sleep information used to determine the play results,
a presentation mode in which the plurality of play results are presented in an order based on a total score determined by the play information and the sleep information used to determine the play results,
a presentation mode in which the plurality of play results are presented in an order based on dates,
a presentation mode in which the plurality of play results are presented in descending order from a satisfactory one of the play results,
a presentation mode in which the plurality of play results are presented in an order based on awards given to the user depending on the play results,
a presentation mode in which one or more of the play results, for which the sleep information has not been able to be acquired in determination of the play results, from among the plurality of play results are presented, and
a presentation mode in which one or more of the play results indicating satisfactory sleep states of the user are presented on the basis of sleep information used to determine the play results from among the plurality of play results (¶403, game elements representing a first and second evaluation sleep session are presented to the user, for example as a number of lives remaining and an item to be rewarded to the player).
Regarding claim 11, Hattori discloses that which is discussed above, and further discloses:
acquiring the sleep information corresponding to the plurality of times from a measurement terminal (¶104-105, hand-held terminal 5 and base device 6 measure the sleep of the user and transmit the information to terminal 2 which calculates the sleep information which is used for a game input).
Regarding claim 12, Hattori discloses that which is discussed above, and further discloses:
storing information indicating that the sleep information has been acquired in an associated manner with the sleep information corresponding to the plurality of times in the measurement terminal in accordance with the sleep information acquired the plurality of times, and acquiring the sleep information corresponding to the plurality of times that is not associated with the information indicating that the sleep information has been acquired from the measurement terminal (¶349-353, server 3 determines if information has been received from terminal 5, if not server receives and stores accumulated sleep information for each user received from terminal 5 and updates the user data representing information for each user).
Regarding claim 13, Hattori discloses that which is discussed above, and further discloses:
acquiring the sleep information the plurality of times from a program that is different from the non-transitory computer-readable storage medium (¶137, Fig. 4, the terminal system 2 collects sleep data once during a sleep session, calculates various sleep indices for each sleep session (i.e., sleep information) and transmits it to the terminal 5).
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.
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, 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.
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.
/Jason Pinheiro/Examiner, Art Unit 3715
/DMITRY SUHOL/Supervisory Patent Examiner, Art Unit 3715