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 7/8/2024.
Claims 1-20 are pending.
Signed copies of the IDS’ are attached.
The Drawings filed 7/8/2024 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 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 11 & 16 recite substantially similar limitations but being drawn to different statutory classes:
Claim 1: “A method comprising: determining a relative frequency of user input events associated with a session of an application; selecting one or more durations within the session based at least on the relative frequency of user input events corresponding to each duration of the one or more durations; and presenting, on a user device, the one or more selected durations.”
The italicized limitations fall within at least one of the groupings of abstract ideas enumerated in the 2019 PEG1:
“Mental Processes”: concepts performed in the human mind (including an observation, evaluation, judgment, opinion).
The claimed invention requires determining a frequency of user inputs in a game session. A duration within the session is determined and presented to a user.
Here, the claimed steps can be performed by a human observing a player’s physical inputs during a game session, recording the session and presented it to the player or other users. For example, a human can observe a player’s high interest level via aspects including concentration, keystrokes, perspiration, etc., and determine that the duration is particularly important. Choosing a duration and presenting it thereafter is a mental process insomuch as a human shares the timestamps of durations with increased interest level.
“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 claimed invention is managing personal behavior because it is drawn to managing what durations of a player’s gaming session are high interest and presenting these durations to others.
This also represents managing interactions between people, i.e., the players. Gaming is also a social activity. And, to the extent the claims only require following a prescribed order, this represents following rules and instructions.
Prong 2: Does the Claim recite additional elements that integrate the exception in to 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, U.S. Patent No.: 10,245,509 B2 shows the conventionality of computing elements/systems to infer user interest in video game sessions including to generate highlight reels. 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 “general-purpose 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 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 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.
Claims 1-20 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Marr et al. (U.S. Pub. No.: 2017/0113136 A1).
Regarding Claims 1, 11 & 16: Marr discloses a system (Abstract) comprising: one or more processors (Fig. 1, 112), to perform operations including: determining a relative frequency of user input events associated with a session of an application, (¶¶ 140-145); selecting one or more durations within the session based at least on the relative frequency of user input events corresponding to each duration of the one or more durations, (¶ 143); and presenting, on a user device, the one or more selected durations, (e.g., Fig. 5, 516, ¶¶ 31, 33, 169).
Regarding Claims 2, 12 & 17: Marr discloses comparing a first indicia of a frequency of user input events during the session to a second indicia of a frequency of user input events during the one or more durations, (¶¶ 140-145).
Regarding Claims 3, 13 & 18: Marr discloses for each duration of the one or more durations, a frequency of user input events during the duration is greater than or equal to the frequency of user input events associated with the session of the application, (¶¶ 140-145).
Regarding Claims 4, 14 & 19: Marr discloses wherein the user input events are registered by an operating system associated with the session of the application, (e.g., Fig. 3, 302 and related description.)
Regarding Claim 5: Marr discloses wherein the indicia corresponds to one or more metrics, one or more values of the one or more metrics indicating a quantity of the user input events per unit time, (¶¶ 140-145)
Regarding Claim 6: Marr discloses each user input event of the user input events represents at least one respective actuation of a user input device associated with a respective time stamp, (e.g., Fig. 5, 512 and related description.).
Regarding Claim 7: Marr discloses wherein the relative frequency corresponds to one or more of an average or percentile of one or more frequency-based metrics over a plurality of sessions of the application, (e.g., ¶¶ 25, 98, 144, 145).
Regarding Claim 8: Marr discloses wherein the application includes one or more of a game application, (Abstract), a streaming application, a chat application, or a user communication application.
Regarding Claim 9: Marr discloses wherein the presenting the one or more selected durations is based at least on: determining for each duration of the one or more durations and using a set of user input events corresponding to the duration, a user interest score corresponding to the duration based at least on the selecting of the one or more durations; and determining the user interest score exceeds a threshold value, (e.g., ¶¶ 144, 145, 174).
Regarding Claim 10: Marr discloses wherein the presenting the one or more selected durations includes presenting at least one of one or more session summarizations corresponding to the one or more selected durations or one or more video clips corresponding to the one or more selected durations, (¶¶ 140-145).
Regarding Claims 15 & 20: Marr discloses wherein the system is comprised in at least one of: a system for performing one or more deep learning operations; a system for determining ground truth data for one or more machine learning models; a system for performing one or more perception operations for a machine; a system for presenting at least one of virtual reality content (e.g., ¶ 138), or augmented reality content; a system incorporating one or more virtual machines (VMs); or a system implemented at least partially using cloud computing resources.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP §§ 706.02(l)(1) - 706.02(l)(3) for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/process/file/efs/guidance/eTD-info-I.jsp.
Claims 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No.: 11,158,346. Although the claims at issue are not identical, they are not patentably distinct from each other because the patented claims substantially disclose the pending claim limitations. See for instance, comparison of independent Claim 1, below:
Pending Claims:
Patented Claims:
1. A method comprising: determining a relative frequency of user input events associated with a session of an application; selecting one or more durations within the session based at least on the relative frequency of user input events corresponding to each duration of the one or more durations; and presenting, on a user device, the one or more selected durations.
1. A method comprising: determining a first indicia of a frequency of user input events during a gameplay session; identifying a duration of potential interest within the gameplay session based at least in part on comparing the first indicia of a frequency of the user input events during the gameplay session to a second indicia of a frequency of the user input events during the duration of potential interest; computing a user interest score for the duration of potential interest based at least in part on a set of the user input events that occur in the duration of potential interest; determining the user interest score exceeds a threshold value; and presenting, on a user device, an indication of the duration of potential interest based at least in part on the user interest score exceeding the threshold value.
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 Specifications:
[0027] The client devices 104 may include a smart phone, a laptop computer, a tablet computer, a desktop computer, a wearable device, a game console, a virtual reality system (e.g., a headset, a computer, a game console, remote(s), controller(s), and/or other components), a streaming device, (e.g., an NVIDIA SHIELD), a smart-home device that may include an intelligent personal assistant, and/or another type of device capable of supporting game play. (Emphasis Added.)
[0122] The disclosure may be described in the general context of computer code or machine-useable instructions, including computer-executable instructions such as program modules, being executed by a computer or other machine, such as a personal data assistant or other handheld device. Generally, program modules including routines, programs, objects, components, data structures, etc., refer to code that perform particular tasks or implement particular abstract data types. The disclosure may be practiced in a variety of system configurations, including hand-held devices, consumer electronics, general-purpose computers, more specialty computing devices, etc. The disclosure may also be practiced in distributed computing environments where tasks are performed by remote-processing devices that are linked through a communications network. (Emphasis Added.)
3: Ariosa Diagnostics, Inc., V. Sequenom, Inc., (Fed Cir. June 12, 2015)