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 .
Response to Arguments
Applicant’s arguments have been fully considered but are unpersuasive.
Regarding Section 101, Applicant argues that the Office action does not address the claimed arrangements as a whole. (Remarks, Page 6.) Examiner respectfully disagrees because the prior Office action analyzed the claims as whole, presented the analysis and explained why the claims as a whole were ineligible. Applicant’s representative provides no additional argument nor is any actual rebuttal provided. The rejection is therefore respectfully maintained.
Similarly, regarding the prior art, Applicant’s response includes no argument explaining why (or how) the prior art references fails to anticipate the claimed invention. Again, Applicant’s only argument is that the “various portions” of the prior art do not “identify” the claimed invention. (Remarks, Pages 8-9). This is unpersuasive because the Office action provided clear citations mapping limitations to the prior art. The onus is on Applicant to show (or at least argue) that the cited portions fail to disclose the claimed inventio. Hence, the rejection is maintained.
Similarly, as to the obviousness rejection, Applicant only provides as conclusory statement that it is unclear how the modification would function. Examiner respectfully disagrees because again, the onus is on Applicant to, at the least, argue that the proposed modification renders the art inoperable.
Applicant alleges hindsight reasoning. Consistent with the Applicant’s other remarks, there is no explanation or even argument for Examiner to consider: Thus, Examiner’s response is the following form paragraph: In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
All rejections are respectfully maintained.
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 and 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 Claims 1 & 15 are analyzed below, with italicized limitations indicating recitations of an abstract idea:
Claim 1: “A system for blending real-life activities with gaming, comprising: a data processing unit configured to receive real-life activity data from a sensor module and game data from a gaming platform; an immersive experience module configured to generate virtual environments based on the real-life activities and game data from the gaming platform; and a user interface module configured to present the virtual environments to the user for interaction.”
Claim 15: “A method for blending real-life activities with gaming to revolutionize gamer interaction with their favorite games, comprising: detecting real-life activities of a user from a sensor module; receiving real-life activity data from the sensor module and game data from a gaming platform using a data processing unit; generating virtual environments based on the real-life activities and game data using an immersive experience module; and presenting the virtual environments to the user for interaction using a user interface module.”
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 systems and methods for blending real-life activities with gaming. The claims recite receiving real-life and gaming data from sensors and gaming platforms, respectively. The claims require generating a virtual environment based on this data. The claims require an interface for presenting the generated virtual environment. The claims are therefore drawn to managing interactions between people.
Collecting and combining real-life with gaming data to generate an immersive virtual environment is managing personal behavior, i.e., a user’s real-life behavior and gaming behavior. It is also managing interactions between people, for instance between users of a gaming platform.
Further, to the extent the claims are drawn to how the immersive gaming environment is generated, this also represents following rules/instructions (i.e., rules defining how the life data and game data is collected and combined.
Prong 2: Does the Claim recite additional elements that integrate the exception in to a practical application of the exception?
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), sensor devices and feedback devices, i.e., haptic, headset, audio, etc.,
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));
Fail to recite an improved way of training a machine learning model that protected the model’s knowledge about previous tasks while allowing it to effectively learn new tasks, and do not recite improvements to computer component or system performance based upon adjustments to parameters of a machine learning model associated with tasks or workstreams2;
Do not apply the exception using a particular machine, (MPEP 2106.05(b)) and
Fail to 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, the prior art relied on in the rejection, infra, shows the conventionality of GUIs used to present combined real-life and game data. 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 tablets are used to implement the claimed invention.3
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 controls4:
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.
(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 1-8 & 12-20 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Stivoric et al. (U.S. Pub. No.: 2014/0317135 A1).
Regarding Claims 1, 15: Stivoric discloses a method and system for blending real-life activities with gaming, (Abstract), comprising: a data processing unit (e.g., Fig. 6), configured to receive real-life activity data (Fig. 6), from a sensor module, (¶¶ 8, 13, 34), and game data from a gaming platform, (¶ 19); an immersive experience module, (e.g., Fig. 9), configured to generate virtual environments based on the real-life activities and game data from the gaming platform, (¶ 19); and a user interface module configured to present the virtual environments to the user for interaction, (¶ 19).
Regarding Claims 2, 16: Stivoric discloses a movie streaming module configured to integrate movie streaming services into the virtual environments, enabling users to watch movies while engaging in real-life activities within the games, (e.g., ¶¶ 98, 103, 117, 170).
Regarding Claims 3, 17: Stivoric discloses a music streaming module configured to integrate music streaming services into the virtual environments, enabling users to listen to music while engaging in real-life activities within the games, (e.g., ¶ 17).
Regarding Claims 4, 18: Stivoric discloses a fitness module configured to track and analyze real-time fitness metrics of the user during the real-life activities and adjust game dynamics based on the fitness metrics, (e.g., ¶¶ 8, 68, 102, 107, 142).
Regarding Claims 5, 19: Stivoric discloses an education module configured to incorporate educational content and learning materials into the virtual environments, allowing users to acquire knowledge and skills while participating in real-life activities within the games, (e.g., ¶ 126).
Regarding Claims 6, 20: Stivoric discloses an online reading module configured to provide access to digital books, articles, and other written content within the virtual environments, enabling users to read and engage with written material while engaging in real-life activities within the games, (e.g., ¶¶ 17, 198).
Regarding Claim 7: Stivoric discloses a motion sensor configured to detect physical movements of the user; a biometric sensor configured to measure physiological parameters of the user; a location sensor configured to determine the geographical position of the user; a voice recognition module configured to interpret voice commands of the user, (e.g., ¶¶ 67, 68, 107, 145).
Regarding Claim 8: Stivoric discloses a machine learning module configured to analyze real-life activity data and game data to generate personalized recommendations for the user; a predictive analytics module configured to anticipate user preferences and dynamically adjust the virtual environments based on the real-time data, (e.g., ¶¶ 10, 16, 130, 145).
Regarding Claim 12: Stivoric discloses a social networking module configured to connect users with similar gaming and movie preferences, enabling multiplayer interactions and shared movie experiences within the virtual environments, (e.g., ¶¶ 10, 12, 14, 123, 142, 161).
Regarding Claim 13: Stivoric discloses virtual environments are dynamically generated based on the real-life activities and game data, incorporating elements from the user's surroundings and in-game elements for a seamless blending of real-life and virtual experiences, (e.g., ¶¶ 19, 69, 70).
Regarding Claim 14: Stivoric discloses the sensor module is further configured to detect the user's emotional state, and the experience module is configured to adapt the virtual environments based on the detected emotional state of the user, (e.g., ¶¶ 70, 98, 158).
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 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.
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 9-11 are rejected under 35 U.S.C. 103 as being unpatentable over Stivoric et al. (U.S. Pub. No.: 2014/0317135 A1) in view of Delamont (U.S. Pub. No.: 2020/0368616 A1).
Stivoric discloses the invention substantially but does not make explicit, a virtual reality headset configured to provide a visually experience to the user; a haptic feedback device configured to simulate tactile sensations for the user; an audio output system configured to deliver spatial audio, a gesture recognition module configured to interpret hand and body gestures of the user for interaction with the virtual environments; a touch-sensitive display configured to provide a touch-based interface for the user to control and navigate within the virtual environments and a synchronized playback module configured to allow the user to transition between movie watching and real-life activities within the games.
However, in a related invention, Delamont teaches an immersive virtual reality system showing each of these claimed elements including a headset, haptic device, spatial audio delivery mechanism, gesture recognition module, touch-sensitive display and content synchronization, (Delamont, e.g., Abstract, ¶¶ 220, 354, 468, 628, 629, 1445).
It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to have modified Stivoric with Delamont’s highly immersive virtual reality mechanisms for several reasons including enhancing users’ interactive experience, (see Delamont, e.g., ¶¶ 2-4 for explicit motivation.)
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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.
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, David Lewis can be reached on 571-272-7673. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see https://ppair-my.uspto.gov/pair/PrivatePair. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/OMKAR A DEODHAR/Primary Examiner, Art Unit 3715
1 See MPEP 2106
2 Ex Parte Desjardins, Appeal No. 2024-000567 (PTAB September 26, 2025, Appeals Review Panel Decision) (precedential)
3 Specifications [0039] “The communication module 118 may facilitate connectivity between the system and external devices, such as smartphones, tablets, and other gaming consoles. This module may support various communication protocols, including Bluetooth, Wi-Fi, and cellular networks, to ensure reliable and high-speed data transmission. The communication module may enable users to share their gaming experiences on social media platforms, participate in multiplayer games, and access online resources for additional content and support.” (Emphasis Added.)
4: Ariosa Diagnostics, Inc., V. Sequenom, Inc., (Fed Cir. June 12, 2015)
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