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 they are 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.
A patent may be obtained for “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.” 35 U.S.C. § 101. The Supreme Court has held that this provision contains an important implicit exception: laws of nature, natural phenomena, and abstract ideas are not patentable. Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 134 S. Ct. 2347, 2354 (2014); Gottschalk v. Benson, 409 U.S. 63, 67 (1972) (“Phenomena of nature, though just discovered, mental processes, and abstract intellectual concepts are not patentable, as they are the basic tools of scientific and technological work.”). Notwithstanding that a law of nature or an abstract idea, by itself, is not patentable, the application of these concepts may be deserving of patent protection. Mayo Collaborative Servs. v. Prometheus Labs., Inc., 132 S. Ct. 1289, 1293–94 (2012). In Mayo, the Court stated that “to transform an unpatentable law of nature into a patent eligible application of such a law, one must do more than simply state the law of nature while adding the words ‘apply it.’” Mayo, 132 S. Ct. at 1294 (citation omitted).
In Alice, the Supreme Court reaffirmed the framework set forth previously in Mayo “for distinguishing patents that claim laws of nature, natural phenomena, and abstract ideas from those that claim patent-eligible applications of these concepts.” Alice, 134 S. Ct. at 2355. The first step in the analysis is to “determine whether the claims at issue are directed to one of those patent-ineligible concepts.” Id. If the claims are directed to a patent-ineligible concept, then the second step in the analysis is to consider the elements of the claims “individually and ‘as an ordered combination”’ to determine whether there are additional elements that “‘transform the nature of the claim’ into a patent-eligible application.” Id. (quoting Mayo, 132 S. Ct. at 1298, 1297). In other words, the second step is to “search for an ‘inventive concept’‒ i.e., an element or combination of elements that is ‘sufficient to ensure that the patent in practice amounts to significantly more than a patent upon the [ineligible concept] itself.’” Id. (brackets in original) (quoting Mayo, 132 S. Ct. at 1294). The prohibition against patenting an abstract idea “cannot be circumvented by attempting to limit the use of the formula to a particular technological environment or adding insignificant post-solution activity.” Bilski v. Kappos, 561 U.S. 593, 610–11 (2010) (citation and internal quotation marks omitted). The Court in Alice noted that “‘[s]imply appending conventional steps, specified at a high level of generality,’ was not ‘enough’ [in Mayo] to supply an ‘inventive concept.’” Alice, 134 S. Ct. at 2357 (quoting Mayo, 132 S. Ct. at 1300, 1297, 1294).
As summarized in the 2014 Interim Guidance on Patent Subject Matter Eligibility, examiners must perform a Two-Part Analysis for Judicial Exceptions.
In step 1, it must be determined whether the invention falls in one of the four statutory categories of invention. Claims 1-20 are directed to a system, method, and non-transitory media, which are statutory categories of invention.
In step 2A, it must be determined whether the claimed invention is ‘directed to’ a judicially recognized exception. “According to the present invention, a determination can be made as to which client applications are skill-based and which client applications are chance-based by statistically quantifying the importance of chance in determining the outcome of the client application.” Spec. ¶ 3. Exemplary claim 1 recites the following (with emphasis):
1. A method, comprising:
performing, by at least one data processor using a first set of interaction results, a statistical analysis of a plurality of users who interacted with a client application for generating a first set of users and a second set of users, the first set of interaction results representing data of a first set of game outcomes associated with the plurality of users that interacted with the client application;
determining, by the at least one data processor using a second set of interaction results, outcomes of a number of random matchups between one or more users selected from the first set of users and one or more additional users selected from the second set of users to generate a score indicating how often one or more users selected from the first set of users defeats one or more users selected from the second set of users, the second set of interaction results representing additional data of a second set of game outcomes associated with the plurality of users that interacted with the client application;
modifying, by the at least one data processor, the client application when the score that is generated is greater than or equal to a skill score; and
providing, by the at least one data processor, the client application that is modified to the plurality of users on respective client devices.
The abstract idea is defined by the underlined portions of the exemplary claim, with substantially similar features found in independent claims 9 and 17. The claims are directed in pertinent part to observing or analyzing game outcomes and making judgments about the nature of the games and adjustments to the client applications (i.e., games, Spec. ¶ 26). Dependent claims 2-8, 10-16, and 18-20 further define the abstract idea (e.g., by choosing among a plurality of client applications, classifying skill levels for a plurality of players, comparing performances of users, analyzing random outcomes, etc.) or relate to implementation of the abstract idea (e.g., using client devices). The abstract idea may be viewed, for example as:
Collection, analysis, and display of available information in a particular field, as in Electric Power Group, LLC v. Alstom S.A., 830 F.3d 1350 (Fed. Cir. 2016);
An interface providing user display access of customized information, as in Intellectual Ventures I LLC v. Capital One Bank (USA), 792 F.3d 1363 (Fed. Cir. 2015); and
A method of organizing human activities, as discussed in Alice and Bilski v. Kappos, 561 U.S. 593 (2010).
The claimed abstract idea reproduced above is effectively an algorithm or set of instructions for analyzing game outcomes and making determinations of skill or randomness. Such steps amount to observation, judgment, and collection of information that could be carried out mentally or with the use of pen and paper. The claims also include adjusting those applications (i.e., games, Spec. ¶ 26), which suggests that the invention is directed to organizing human activities, as discussed in Alice and Bilski.
In Electric Power Group, the Federal Circuit found that merely selecting information, by content or source, for collection, analysis, and display does nothing significant to differentiate a process from ordinary mental processes, whose implicit exclusion from § 101 undergirds the information-based category of abstract ideas. The claims at issue were directed to gathering information to identify problems in an electric grid and to output that information to a user. The court found that such steps constitute an abstract idea based upon several previous court decisions, including Microsoft Corp. v. AT&T Corp., OIP Techs., Inc. v. Amazon.com, Inc., Content Extraction &Transmission LLC v. Wells Fargo Bank, Digitech Image Techs. LLC v. Elecs. For Imaging, Inc., CyberSource Corp. v. Retail Decisions, Inc. The Court also relied upon TLI Communications, Digitech, Bancorp Servs. LLC v. Sun Life, among others, to state that analyzing information by steps people go through in their minds are essentially mental processes within the abstract-idea category.
The abstract idea in the present case is similar in that it gathers information about game outcomes and presents an analysis based upon that information. There is no asserted inventive concept in the improvement of computers as tools, but instead upon certain independently abstract ideas that use computers as tools. Such a finding suggests that the decisions in Enfish v. Microsoft, BASCOM Global Internet v. AT&T Mobility LLC, and McRO, Inc. v. Bandai Namco Games America do not apply here. Therefore, under Step 2A prong 2, the claims are directed to the judicially recognized exception of an abstract idea.
Step 2B requires that if the claim encompasses a judicially recognized exception, it must be determined whether the claimed invention recites additional elements that amount to significantly more than the judicial exception. The claims encompass the following additional element(s) or combination of elements in the claim(s) other than the abstract idea per se: a system having a processor and memory storing instructions to carry out the abstract idea. Viewed as a whole, these additional claim element(s) do not provide meaningful limitation(s) to transform the abstract idea into a patent eligible application of the abstract idea such that the claim(s) amounts to significantly more than the abstract idea itself. These features do not meaningfully limit the abstract idea because they encompass generic computer implementation using well-understood, routine and conventional devices (e.g., client device, etc.) that also amount to extra-solution activity.
The disclosure admits that the claimed client devices may be “a smart phone, a tablet computer, a laptop computer, a desktop or personal computer, or the like.” Spec. ¶ 15. This indicates that generic and conventional components that are well known in the art may be used to carry out the abstract idea. The claims do not purport to improve the functioning of the computerized devices.
Each of the above elements are construed as extra-solution activity because each one merely implements the abstract idea without providing any substantive limitation on the abstract idea itself. A claim is not meaningfully limited if it contains only insignificant extra-solution activity, which includes any “well-understood, routine, conventional activity, previously engaged in by those in the field” as well as “steps that must be taken in order to apply” the abstract idea. See Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 716 (Fed. Cir. 2014).
The Supreme Court in Alice found that claim recitations of a “data processing system” with a “communications controller” and “data storage unit” are purely functional and generic. The Court further stated, “Put another way, the system claims are no different from the method claims in substance...The method claims recite the abstract idea implemented on a generic computer; the system claims recite a handful of generic computer components configured to implement the same idea.” The Court concluded that “[b]ecause petitioner's system and media claims add nothing of substance to the underlying abstract idea, we hold that they too are patent ineligible under §101.” The same conclusion is reached with respect to the claims of the instant invention. Therefore, the claim(s) 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).
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 1-20 are rejected under 35 U.S.C. 102(a)(1) and/or 102(a)(2) as being anticipated by US 2023/0050195 to Pierse et al. (hereinafter Pierse).
Regarding claims 1, 9, and 17, Pierse teaches a method, system with processor and memory (e.g., Figs. 1, 2, and 6), and medium therefor, comprising:
performing, by at least one data processor using a first set of interaction results, a statistical analysis of a plurality of users who interacted with a client application for generating a first set of users and a second set of users, the first set of interaction results representing data of a first set of game outcomes associated with the plurality of users that interacted with the client application (e.g., gameplay data 300 and placement result data 340 indicating final placement of players and/or teams in at least ¶¶ 109-110);
determining, by the at least one data processor using a second set of interaction results, outcomes of a number of random matchups between one or more users selected from the first set of users and one or more additional users selected from the second set of users to generate a score indicating how often one or more users selected from the first set of users defeats one or more users selected from the second set of users, the second set of interaction results representing additional data of a second set of game outcomes associated with the plurality of users that interacted with the client application (e.g., skill measurement system 222 includes a gameplay uncertainty, such as randomness, which can be caused by design of the game in ¶¶ 91-92; see also ¶¶ 14, 73, and 127);
modifying, by the at least one data processor, the client application when the score that is generated is greater than or equal to a skill score (e.g., a new gameplay mode may be provided that includes one or more modifications, alterations, or changes, to existing game mode type in ¶ 92); and
providing, by the at least one data processor, the client application that is modified to the plurality of users on respective client devices (e.g., the modified gameplay discussed in ¶ 92; see also ¶¶ 39 and 64 discussing gameplay data types).
Regarding claims 2, 10, and 18, Pierse teaches selecting, by the at least one data processor, the client application from a plurality of client applications (e.g., the processor analyzing gameplay data 300 and placement result data 340 indicating final placement of players and/or teams in at least ¶¶ 109-110).
Regarding claims 3 and 11, Pierse teaches extracting, by the at least one data processor, the first set of interaction results representing the data of the first set of game outcomes associated with the plurality of users of the client application, the first set of interaction results usable for classifying a skill level of each of the plurality of users (e.g., skill measurement system 222 for determining skill ratings may access gameplay data 300 or team data 310 such as gameplay scores and statistics in ¶¶ 103-109; see also ¶ 10 discussing evaluation of player skill in conjunction with pairwise matches).
Regarding claims 4 and 12, Pierse teaches extracting, by the at least one data processor, the second set of interaction results representing the additional data of the second set of game outcomes associated with the plurality of users of the client application, the second set of interaction results usable for analyzing a performance of at least a user from the first set of users relative to at least a user from the second set of users (e.g., gameplay data 300 or team data 310, which may be used to update skill ratings, as discussed in at least ¶¶ 103-109; see also ¶¶ 19-21 discussing various battle types and game events used by the invention).
Regarding claims 5 and 13, Pierse teaches wherein the client application executes on respective client devices of users (e.g., a one-to-one correspondence between users 105 and computing devices 110 in ¶ 42).
Regarding claims 6 and 14, Pierse teaches determining, by the at least one data processor, that one or more outcomes associated with the client application is random, when the score that is generated is less than the skill score (e.g., detecting uncertainty or randomness in ¶ 91; see also analysis of player performance fluctuation in ¶¶ 22 and 30).
Regarding claims 7, 15, and 19, Pierse teaches analyzing one or more real-time interactions of one or more of the plurality of users with the client application (e.g., dynamically adjusting a player’s skill measurement over time, as discussed in at least ¶¶ 32-33).
Regarding claims 8, 17, and 20, Pierse teaches updating a designation of the client application based on the analyzing of the one or more real-time interactions of the one or more of the plurality of users with the client application (e.g., dynamically adjusting a player’s skill measurement over time, as discussed in at least ¶¶ 32-33).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure and is listed on the attached Notice of References Cited.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to WILLIAM H MCCULLOCH whose telephone number is (571)272-2818. The examiner can normally be reached M-F 9:30-5:30.
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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.
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/WILLIAM H MCCULLOCH JR/Primary Examiner, Art Unit 3715