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 7/2/2024.
Claims 1-20 are pending.
The Drawings filed 7/2/2024 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 1-20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter.
Step 1:
The claims are drawn to process, apparatus and CRM categories.
Thus, initially, under Step 1 of the analysis, it is noted that the claims are directed towards eligible categories of subject matter
Step 2A:
Prong 1: Does the Claim recite an Abstract idea, Law of Nature, or Natural Phenomenon?
Representative Claim 1 is analyzed below, with italicized limitations indicating recitations of an abstract idea, noting that independent Claims 16 & 20 recite substantially similar limitations but being drawn to different statutory classes.
Claim 1: “A method implemented by a real-time strategy game (RTS) executing at a processor system of a computer system for automating digital resource production within the RTS, the method comprising: identifying a virtual character residing at a first location in a virtual space that is within a defined distance from a second location in the virtual space, the virtual character capable of gathering a plurality of virtual resource types based on interfacing with virtual resource sources of a plurality of different types, each type of virtual resource source enabling the virtual character to produce a different type of virtual resource; identifying a set of resource-gathering factors for the virtual character, the set of resource-gathering factors including at least: a virtual resource production goal, the virtual resource production goal specifying a relative allocation of each of the plurality of virtual resource types to be gathered by a set of virtual characters that includes the virtual character, the virtual resource production goal including a goal to gather an amount of a particular virtual resource type; a reserve of the particular virtual resource type that has been previously gathered by the set of virtual characters; an availability of a virtual resource source that provides the particular virtual resource type within the defined distance from the second location in the virtual space; a likelihood of an additional virtual resource source that provides the particular virtual resource type existing at a third location in the virtual space, the third location in the virtual space being beyond the defined distance from the second location in the virtual space; and a likelihood of peril to the virtual character existing between the first location in the virtual space and the third location in the virtual space; and based on the set of resource-gathering factors: expanding the defined distance to include the third location in the virtual space; determining a virtual resource-gathering assignment for the virtual character that includes traversing from the first location in the virtual space to the third location in the virtual space; and instructing the virtual character to traverse from the first location in the virtual space to the third location in the virtual space.”
The italicized limitations fall within at least one of the groupings of abstract ideas enumerated in the 2019 PEG1, “certain methods of organizing human activity”, managing personal behavior or relationships or interactions between people (including social activities, teaching, and following rules or instructions)
The claims are drawn to managing a real-time strategy (RTS) game including characters, locations, resources and virtual space locations. The claimed invention further represents managing player behavior in a virtual space. Additionally, the claims are drawn to a social activity, i.e., an RTS game.
Prong 2: Does the Claim recite additional elements that integrate the exception into a practical application of the exception?
Although the claims recite additional limitations, these limitations do not integrate the exception into a practical application of the exception. For example, the claims require additional limitations drawn to a computing system with a processor and memory, (a GUI).
These additional limitations do not represent an improvement to the functioning of a computer, or to any other technology or technical field, (MPEP 2106.05(a)). Nor do they apply the exception using a particular machine, (MPEP 2106.05(b)). Furthermore, they do not effect a transformation. (MPEP 2106.05(c)). Rather, these additional limitations amount to an instruction to “apply” the judicial exception using a computer as a tool to perform the abstract idea.
Step 2B:
Under Step 2B, the claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception because they amount to conventional computer implementation.
For example, as pointed out above, the claimed invention recites additional elements facilitating implementation of the abstract process. However, these elements viewed individually and as a whole, are indistinguishable from conventional computing elements known in the art. Therefore, the additional elements fail to supply additional elements that yield significantly more than the underlying abstract idea.
Regarding the Berkheimer decision, see for instance U.S. Pub. No.: 2025/0073581 A1 to Dasher et al. showing the conventionality of computing elements implementing RTS games using machine learning for strategic decisions. Therefore, these elements fail to supply additional elements that yield significantly more than the underlying abstract idea. Thus, taken alone, the additional elements do not amount to significantly more than the above-identified judicial exception (the abstract idea). Additionally, Applicant’s Specifications acknowledge that generic devices including desktop computers are used to implement the claimed invention.2
Looking at the limitations as an ordered combination adds nothing that is not already present when looking at the elements taken individually. There is no indication that the combination of elements improves the functioning of a computer or improves any other technology. Their collective functions provide conventional computer implementation of an abstract process.
Moreover, the claims do not recite improvements to another technology or technical field. Nor, do the claims improve the functioning of the underlying computer itself -- they only recite generic computing elements. Furthermore, they do not effect a transformation of a particular article to a different state or thing: the underlying computing elements remain the same.
Concerning preemption, the Federal Circuit precedent controls3:
The Supreme Court has made clear that the principle of preemption is the basis for the judicial exceptions to patentability. Alice, 134 S. Ct at 2354 (“We have described the concern that drives this exclusionary principal as one of pre-emption”). For this reason, questions on preemption are inherent in and resolved by the § 101 analysis. The concern is that “patent law not inhibit further discovery by improperly tying up the future use of these building blocks of human ingenuity.” Id. (internal quotations omitted). In other words, patent claims should not prevent the use of the basic building blocks of technology—abstract ideas, naturally occurring phenomena, and natural laws. While preemption may signal patent ineligible subject matter, the absence of complete preemption does not demonstrate patent eligibility. In this case, Sequenom’s attempt to limit the breadth of the claims by showing alternative uses of cffDNA outside of the scope of the claims does not change the conclusion that the claims are directed to patent ineligible subject matter. Where a patent’s claims are deemed only to disclose patent ineligible subject matter under the Mayo framework, as they are in this case, preemption concerns are fully addressed and made moot. (Emphasis added.)
For these reasons, it appears that the claims are not patent-eligible under 35 USC §101.
Claim 20 is rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter wherein the claim recites a processing program that is not claimed as embodied in a non-transitory storage medium.4 Because Applicant's disclosure is not limited solely to tangible embodiments, the claimed subject matter, given the broadest reasonable interpretation, may be a carrier wave comprising of instructions and is, therefore, non-statutory. The United States Patent and Trademark Office (USPTO) is obliged to give claims their broadest reasonable interpretation consistent with the specification during proceedings before the USPTO. See In re Zletz, 893 F.2d 319 (Fed. Cir. 1989) (during patent examination the pending claims must be interpreted as broadly as their terms reasonably allow). The broadest reasonable interpretation of a claim drawn to a computer readable storage medium typically covers forms of non-transitory tangible media and transitory propagating signals per se in view of the ordinary and customary meaning of computer readable storage media, particularly when the specification is silent. (See MPEP 2111.01). When the broadest reasonable interpretation of a claim covers a signal per se, the claim must be rejected under 35 U.S.C. § 101 as covering non-statutory subject matter (See In re Nuijten, 500 F.3d 1346, 1356-57 (Fed. Cir. 2007) (transitory embodiments are not directed to statutory subject matter) and Interim Examination Instructions for Evaluating Subject Matter Eligibility Under 35 U.S.C. § 101, Aug. 24, 2009; p. 2).
To overcome this type of rejection, the claims need to be amended to include only the physical computer storage media unassociated with any intangible or non-functional transmission media. Examiner suggests adding the word -- non-transitory -- to the claim. Other word choices will be considered but the one proposed shall overcome the rejection. Appropriate attention is required.
Conclusion
Additional Relevant References: See 892
Any inquiry concerning this communication or earlier communications from the examiner should be directed to OMKAR A DEODHAR whose telephone number is (571)272-1647. The examiner can normally be reached on M-F, generally 9am-5:30 pm.
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/OMKAR A DEODHAR/Primary Examiner, Art Unit 3715
1 See MPEP 2106
2 [0071] In some embodiments, the disclosed systems and methods are practiced in network computing environments with many types of computer system configurations, including personal computers, desktop computers, laptop computers, message processors, hand-held devices, multi-processor systems, microprocessor-based or programmable consumer electronics, network PCs, minicomputers, mainframe computers, mobile telephones, PDAs, tablets, pagers, routers, switches, and the like. In some embodiments, the disclosed systems and methods are practiced in distributed system environments where different computer systems, which are linked through a network (e.g., by hardwired data links, wireless data links, or by a combination of hardwired and wireless data links), both perform tasks. As such, in a distributed system environment, a computer system may include a plurality of constituent computer systems. Program modules may be located in local and remote memory storage devices in a distributed system environment. (Emphasis Added.)
3: Ariosa Diagnostics, Inc., V. Sequenom, Inc., (Fed Cir. June 12, 2015)
4 It is noted that Paragraph ¶ 67 of the Specifications discloses that embodiments include physical storage media. Amending the claim to recite such “physical” media will also be acceptable to overcome this “non-transitory” type 101 rejection.