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 .
Status of the Claims
Claims 1-6 were previously pending. Claims 1-6 were amended and new claims 7-9 were added in the reply filed August 11, 2026. Claims 1-8 are currently pending.
Response to Arguments
Applicant's arguments filed with respect to the rejection made under § 101 have been fully considered but they are not persuasive. Applicant argues that the claims integrate the abstract idea into a practical application. “These limitations are not a generic recitation of ‘identifying a cell.’ They specify how the search domain is computed and bounded before any network query is made; the radius is derived from a time-varying quantity (the grace period remaining before the event) multiplied by a prescribed coefficient, and the search request transmitted to the map information system is confined to that computed circle.” Remarks, 8-9.
The issue is not that identifying a cell is generic, it is that it is abstract. Determining which nearby customers will receive a promotional communication is a fundamental economic practice and commercial interaction. These limitations also recite mathematical calculations. That Applicant is using cell base station connections to determine the amount of nearby potential customers and using those generic devices to communicate the offer does not alter the commercial nature of the data collection, analysis, and output. Instead, it merely uses these ubiquitous communications tools to improve the abstract idea of promoting event tickets.
While this obviously lends speed and efficiency to the commercial interaction, it does not render the claims eligible. See Bancorp Servs., LLC v. Sun Life Assurance Co. of Can., 687 F.3d 1266, 1278 (Fed. Cir. 2012) (“[T]he fact that the required calculations could be performed more efficiently via a computer does not materially alter the patent eligibility of the claimed subject matter.”); CLS Bank, Int’l v. Alice Corp., 717 F.3d 1269, 1286 (Fed. Cir. 2013) (en banc) aff’d, 134 S. Ct. 2347 (2014) (“[Sjimply appending generic computer functionality to lend speed or efficiency to the performance of an otherwise abstract concept does not meaningfully limit claim scope for purposes of patent eligibility.” (citations omitted)). See also Return Mail, Inc. v. USPS, 868 F.3d 1350, 1369 (Fed. Cir. 2017) ("[The claims] do not improve the functioning of the computer or barcode system itself. Instead, they apply those functionalities in the context of processing return mail.").
“By computing the search radius from the remaining grace period and expanding only on demand, claim 1 reduces the number of search requests transmitted to the map information system, the number of base stations from which terminal counts must be requested and received, and the volume of report data the apparatus must process, in each iteration and in aggregate. That is a reduction in the processing and signaling burden imposed on the apparatus and on the cellular network, and it is a consequence of the specific arrangement of elements recited by claim 1, not of the generic capability of any computer.” Remarks, 9. As above, this is not an improvement specific or particular to any technological capabilities (as was the case in, e.g., Enfish, LLC v. Microsoft Corp., 822 F.3d 1327 (Fed. Cir. 2016) and DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245 (Fed. Cir. 2014)). Limiting promotional communications only to nearby customers would provide similar benefits in any context (e.g., savings of time, cost, etc.).
“The count thus governs the subsequent technical operation of the apparatus and the extent of its use of network resources. Data that determines what the system does next, and how much of the network it interrogates, is not pre-solution data gathering under MPEP § 2106.05(g); it is an operative element of the claimed control loop.” Remarks, 10. The issue with this argument is that the subsequent operation is not of a technical nature—in this case “what the system does next” is offer tickets for sale to people via generic means.
“Here, in contrast, the focus of the claims is not a physical-realm improvement but an improvement in wholly abstract ideas—the selection and mathematical analysis of information, followed by reporting or display of the results. Contrary to InvestPic’s suggestion, it does not matter to this conclusion whether the information here is information about real investments. As many cases make clear, even if a process of collecting and analyzing information is 'limited to particular content' or a particular 'source,' that limitation does not make the collection and analysis other than abstract. Electric Power, 830 F.3d at 1353, 1355 (citing cases). Moreover, the 'investment' character of this information simply invokes a separate category of abstract ideas involved in Alice and many of our cases—'the creation and manipulation of legal obligations such as contracts involved in fundamental economic practices.' Id. at 1354." SAP America, Inc. v. InvestPic, LLC, 890 F.3d 1016, 1022 (Fed. Cir. 2018).
“Claim 1 does not preempt the idea of promoting surplus tickets to nearby users; it is limited to this particular sequence of operations on a cellular network.” Remarks, 10. Preemption concerns are resolved by the two-part Alice/Mayo framework and preemption is not a separate test. "[Q]uestions on preemption are inherent in and resolved by the § 101 analysis.... While preemption may signal patent ineligible subject matter, the absence of complete preemption does not demonstrate patent eligibility." Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015). Cf. OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1362-1363 (Fed. Cir. 2015) (cert. denied, 136 S. Ct. 701, 193 L. Ed. 2d 522 (2015)) ("[T]hat the claims do not preempt all price optimization or may be limited to price optimization in the e-commerce setting do not make them any less abstract." (emphasis added)).
“The problem addressed by claim 1; determining which cells of a mobile network to interrogate, and how far to extend that interrogation, so that a sufficient population of currently connected terminals is reached without querying the network more broadly than necessary; has no analogue outside a cellular network. The cases relied upon in the Office Action are distinguishable on precisely this point: Sanderling concerned distributing information based on matching GPS location, and Customedia concerned delivery of targeted advertisements, neither of which recited any mechanism that determines and bounds the network resources to be interrogated as a function of a computed radius and a real-time connected-terminal count.” Remarks. 10-11. As above, this limitation is abstract. “It is important to note, the judicial exception alone cannot provide the improvement.” MPEP 2106.05(a). Additionally, Examiner respectfully disagrees that this has no analogue outside a cellular network. Determining a radius of nearby people to contact for promotions would also improve promotional systems that do not use cell tower connections (i.e., by conserving resources such as time and cost in order to target the customers most likely to make a purchase with a communication via other means).
The only efficiency mentioned in the disclosure is the efficiency of selling tickets (i.e., a commercial interaction). “By performing the foregoing, it is possible to determine the target cells such that the number of user terminals 20 that are actually capable of purchasing tickets is equal to or greater than the cancellation number, and it is possible to promote the sale of surplus tickets more efficiently.” Published Specification, ¶ 0054. See also ¶ 0050 (“Due thereto, the possibility that a ticket is purchased can be raised so that many surplus tickets are sold, and by increasing the number of participants in the event, it is possible to achieve effective utilization of the facilities of the event venue V.”).
With respect to Step 2B Applicant also argues that the claims recite “significantly more” than the abstract idea. “Even accepting that a processor, a base station, and a map information system are individually known, Step 2B requires evaluation of the elements as an ordered combination. The ordered combination recited by claim 1; computing a search radius from the remaining grace period, bounding the initial query to that radius, and enlarging the queried set incrementally only on a measured shortfall; is not a conventional arrangement, and the Examiner has identified no evidence that it is.” Remarks, 11. These steps are abstract, not additional elements. The claims have been evaluated in combination, but “the relevant inquiry is not whether the claimed invention as a whole is unconventional or non-routine." BSG Tech LLC v. BuySeasons, Inc., 899 F.3d 1281, 1290 (Fed. Cir. 2018).
“Indeed, the Office Action acknowledges that none of the cited references teach ‘acquiring the number of user terminals currently connected to the identified cell; determining whether or not the acquired number of user terminals is equal to or greater than the number of sellable tickets; and when it is determined that the acquired number of user terminals is equal to or greater than the number of sellable tickets, announcing to the user terminals currently connected to the cell that ticket purchase is possible in any reasonable combination.’” Remarks, 11. "The 'novelty' of any element or steps in a process, or even of the process itself, is of no relevance in determining whether the subject matter of a claim falls within the § 101 categories of possibly patentable subject matter." Diamond v. Diehr, 450 U.S. 175, 188-89 (1981). "[U]nder the Mayo/Alice framework, a claim directed to a newly discovered law of nature (or natural phenomenon or abstract idea) cannot rely on the novelty of that discovery for the inventive concept necessary for patent eligibility." Genetic Techs. Ltd. v. Merial L.L.C., 818 F.3d 1369, 1376 (Fed. Cir. 2016). See also Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d 1138, 1151, 120 USPQ2d 1473, 1483 (Fed. Cir. 2016) ("a claim for a new abstract idea is still an abstract idea. The search for a § 101 inventive concept is thus distinct from demonstrating § 102 novelty."). See also MPEP 2106.05(I). Accordingly, the rejection is 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 1-8 are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter (abstract idea without significantly more). Claims are eligible for patent protection under § 101 if they are in one of the four statutory categories and not directed to a judicial exception to patentability. Alice Corp. v. CLS Bank Int'l, 573 U.S. 208 (2014). Claims 1-8, each considered as a whole and as an ordered combination, are directed to a judicial exception (i.e., an abstract idea) without significantly more.
MPEP 2106 Step 2A – Prong 1:
The claims recite an abstract idea reflected in the representative functions of the independent claims—including:
identifying a cell within a range based on a venue location of an event for which a ticket enables participation therein, the range corresponding to a time from a current time until a time of the event;
calculating a movable distance by multiplying a grace period from the current time until the time of the event by a prescribed coefficient;
transmitting a search request to request a search for cells included in a circle centered on the venue location and having the calculated movable distance as a radius;
acquiring cell identifiers of cells within the circle;
acquiring the number of user terminals currently connected to the identified cell;
determining whether or not the acquired number of user terminals is equal to or greater than the number of sellable tickets; and
when the acquired number of user terminals is less than the number of sellable tickets, instructing a search for cells adjacent to the identified cell to expand the identified cell to include the adjacent cells, thereby increasing efficiency of electronic ticket distribution by selectively expanding a target area based on real-time terminal counts; and
when it is determined that the acquired number of user terminals is equal to or greater than the number of sellable tickets, transmitting an announcement message to the users currently connected to the cell that ticket purchase is possible.
These limitations taken together qualify as a certain method of organizing human activities because they recite collecting, analyzing, and outputting information for commercially promoting tickets to people within a certain area of an event venue under certain inventory and potential demand conditions (i.e., in the terminology of the 2019 Revised Guidance, commercial interactions (including advertising, marketing or sales activities or behaviors; business relations). Additionally, it recites processes that can be performed mentally (e.g., a person observing the number of terminals connected to an identified cell on a display at a certain time, evaluating them to determine if they are equal or greater than the number of sellable tickets, and making a judgment on whether or not to announce ticket purchase availability). Finally, it also recites certain mathematical relationships/calculations (identifying a cell within a range based on a venue location of an event for which a ticket enables participation therein, the range corresponding to a time from a current time until a time of the event; calculating a movable distance by multiplying a grace period from the current time until the time of the event by a prescribed coefficient; acquiring the number of user terminals currently connected to the identified cell; determining whether or not the acquired number of user terminals is equal to or greater than the number of sellable tickets).
It shares similarities with other abstract ideas held to be non-statutory by the courts (see Sanderling Management Ltd. v. Snap Inc., 65 F.4th 698 (Fed. Cir. 2023)—distributing information based upon matching GPS location, similar because at another level of abstraction the claims could be characterized as distributing ticketing information based upon time and location; Customedia Technologies, LLC v. Dish Network Corp., 951 F.3d 1359 (Fed. Cir. 2020)—delivery of targeted advertisements to users, which also characterizes the invention). See also Electric Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1355 (Fed. Cir. 2016) ("But 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.").
These cases describe significantly similar aspects of the claimed invention, albeit at another level of abstraction. See Apple, Inc. v. Ameranth, Inc., 842 F.3d 1229, 1240-41 (Fed. Cir. 2016) ("An abstract idea can generally be described at different levels of abstraction. As the Board has done, the claimed abstract idea could be described as generating menus on a computer, or generating a second menu from a first menu and sending the second menu to another location. It could be described in other ways, including, as indicated in the specification, taking orders from restaurant customers on a computer.").
MPEP 2106 Step 2A – Prong 2:
This judicial exception is not integrated into a practical application because there are no meaningful limitations that transform the exception into a patent eligible application. The elements merely serve to provide a general link to a technological environment (e.g., computers, the Internet, ubiquitous wireless communication network equipment) in which to carry out the judicial exception (memory, processor, user terminals connected to cell, wireless communications, map information system, base station forming the identified cell—all recited at a high level of generality). Although they have and execute instructions to perform the abstract idea itself (e.g., modules, program code, etc. to automate the abstract idea), this also does not serve to integrate the abstract idea into a practical application as it merely amounts to instructions to "apply it."
Aside from such instructions to implement the abstract idea, they are solely used for generic computer operations (e.g., receiving, storing, retrieving, transmitting data), employing the computer as a tool. See FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1096 (Fed. Cir. 2016) ("[T]he use of generic computer elements like a microprocessor or user interface do not alone transform an otherwise abstract idea into patent-eligible subject matter.") (citing DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245,1256 (Fed. Cir. 2014)) (emphasis added).
The claims only manipulate abstract data elements into another form. They do not set forth improvements to another technological field or the functioning of the computer itself and instead use computer elements as tools to improve the functioning of the abstract idea identified above. Looking at the additional limitations and abstract idea as an ordered combination and as a whole 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. Rather than any meaningful limits, their collective functions merely provide generic computer implementation of the abstract idea identified in Prong One. None of the additional elements recited "offers a meaningful limitation beyond generally linking 'the use of the [method] to a particular technological environment,' that is, implementation via computers." Alice Corp., slip op. at 16 (citing Bilski v. Kappos, 561 U.S. 610, 611 (U.S. 2010)).
At the levels of abstraction described above, the claims do not readily lend themselves to a finding that they are directed to a nonabstract idea. Therefore, the analysis proceeds to step 2B. See BASCOM Global Internet v. AT&T Mobility LLC, 827 F.3d 1341, 1349 (Fed. Cir. 2016) ("The Enfish claims, understood in light of their specific limitations, were unambiguously directed to an improvement in computer capabilities. Here, in contrast, the claims and their specific limitations do not readily lend themselves to a step-one finding that they are directed to a nonabstract idea. We therefore defer our consideration of the specific claim limitations’ narrowing effect for step two.") (citations omitted).
MPEP 2106 Step 2B:
The claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception for the same reasons as presented in Step 2A Prong 2 (i.e., they amount to nothing more than a general link to a particular technological environment and instructions to apply it there). Moreover, the additional elements recited are known and conventional computing elements (memory, processor, user terminals connected to cell, wireless communications, map information system, base station forming the identified cell—see published Specification ¶¶ 0015, 18-19, 46, 56-57 describing these at a high level of generality and in a manner that indicates that the additional elements are sufficiently well-known that the specification does not need to describe the particulars of such additional elements to satisfy the statutory disclosure requirements).
The Federal Circuit has recognized that "an invocation of already-available computers that are not themselves plausibly asserted to be an advance, for use in carrying out improved mathematical calculations, amounts to a recitation of what is 'well-understood, routine, [and] conventional.'" SAP Am., Inc. v. InvestPic, LLC, 890 F.3d 1016, 1023 (Fed. Cir. 2018) (alteration in original) (citing Mayo v. Prometheus, 566 U.S. 66, 73 (2012)). Apart from the instructions to implement the abstract idea, they only serve to perform well-understood functions (e.g., receiving, storing, retrieving, transmitting data—see Specification above as well as Alice Corp.; Intellectual Ventures I LLC v. Symantec Corp., 838 F.3d 1307 (Fed. Cir. 2016); and Versata Dev. Group, Inc. v. SAP Am., Inc., 793 F.3d 1306, 1334 (Fed. Cir. 2015) covering the well-known nature of these basic computer functions).
"The use and arrangement of conventional and generic computer components recited in the claims—such as a database, user terminal, and server— do not transform the claim, as a whole, into 'significantly more' than a claim to the abstract idea itself. We have repeatedly held that such invocations of computers and networks that are not even arguably inventive are insufficient to pass the test of an inventive concept in the application of an abstract idea." Credit Acceptance Corp. v. Westlake Services, 859 F.3d 1044, 1056 (Fed. Cir. 2017) (citations and quotation marks omitted). 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 merely provide conventional computer implementation.
Dependent Claims Step 2A:
The limitations of the dependent claims but for those addressed below merely set forth further refinements of the abstract idea without changing the analysis already presented (i.e., they merely narrow the same abstract idea identified above without adding any new additional elements beyond it by adding more limitations that fit into the above subcategories for the same reasons). Specifically, claims 2-5 and 7-8 recite more certain methods of organizing human activities and mental steps, and claims 4 and 8 also recite mathematical relationships/calculations. Additionally, for the same reasons as above, the limitations fail to integrate the abstract idea into a practical application because they use the same general link to a technological environment and instructions to implement the abstract idea as the independent claims (i.e., processor, user terminals connected to cell, wireless communications, base station).
Claim 3 recites a base station forming the identified cell and claim 5 recites an edge apparatus which manages the identified cell. However, these are recited at a high level of generality and are part of the generic cellular communication infrastructure in which the abstract idea is applied. Moreover, they are merely used in pre-solution data gathering steps (i.e., they are solely used as a data source by which to determine how many user terminals are connected to the cell, which is the data operated on to determine whether or not to announce ticket sales as part of the abstract idea). See MPEP 2106.05(g).
Dependent Claims Step 2B:
The dependent claims merely use the same general technological environment and instructions to implement the abstract idea as the independent claims. Although they add the elements identified in 2A above (a base station forming the identified cell and claim 5 recites an edge apparatus which manages the identified cell), these do not amount to significantly more for the same reasons they fail to integrate the abstract idea into a practical application. Moreover, the Specification also indicates this is the routine use of known components for the same reasons presented with respect to the elements in the independent claims above (see ¶¶ 0015, 20, 53 describing these at a high level of generality and without any appreciable technical specifics). Accordingly, they are not directed to significantly more than the exception itself, and are not eligible subject matter under § 101.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure:
Fang, et al., Contemporaneous and delayed sales impact of location-based mobile promotions, Information Systems Research Vol. 26, No. 3, 2015, pgs. 552-564 (Reference U of the attached PTO-892) relates to promotion of tickets for an event.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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 DANIEL VETTER whose telephone number is (571)270-1366. The examiner can normally be reached M-F 9:00-6:00.
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/DANIEL VETTER/Primary Examiner, Art Unit 3628
