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 .
Claims Status
Claims 1, 12 and 20 have been amended.
Claims 10-11 and 19 have been canceled.
Claims 1-9, 12-18 and 20 are currently pending and rejected.
Response to Arguments
35 USC 101 rejection
Applicant's arguments with respect to the rejection of claims 1-20 under 35 USC 101, as being directed to a judicial exception, have been fully considered but are not persuasive, in view of the accompanying amendments and in view of MPEP 2106. The rejection under 35 USC 101 is explained in further detail below.
Examiner appreciates Applicant’s inclusion of additional limitations, however, the Examiner asserts that even with the inclusion of additional features, the claims remain abstract and directed to a judicial exception. As written, the claims merely set forth a process for providing product recommendations, which is considered to be an abstract idea as it relates to ‘certain methods of organizing human activity,’ namely marketing or sales activities or behaviors.
Although the claim may use technology (i.e. a processor) to perform steps related to solving a problem, the claim does not amount to a ‘technical improvement’ as the technology (i.e. a computer or other machinery) is merely used in its ordinary capacity for economic or other tasks (e.g., to receive and transmit data). Furthermore, the claims merely disclose usage of machine learning in a new environment. This new environment is product recommendation and the recommendation of items. The claimed methods are not rendered patent eligible by the fact that (using existing machine learning technology) they perform a task previously undertaken by humans with greater speed and efficiency than could previously be achieved.
Examiner reiterates that although claims 1, 12 and 20 may use technology (i.e. a processor, a machine-learning model, etc.) to perform steps related to solving a problem, the claim does not amount to a ‘technical improvement’ as the technology (i.e. a computer or other machinery) is merely used in its ordinary capacity for economic or other tasks (e.g., to store, receive and transmit data). Further clarification with regards to the specific improvements achieved by the machine learning model may assist with the analysis of these claims. “After the examiner has consulted the specification and determined that the disclosed invention improves technology, the claim must be evaluated to ensure the claim itself reflects the disclosed improvement in technology” (See MPEP 2106.05(A)).
The additional elements are merely recited at a high level of generality and amount to little more than the mere instructions to implement an abstract idea on a computer or similar hardware. Further, these elements represent little more than a general link to a technological environment (i.e. a mere attempt to restrict use of the idea to a technical environment such as the Internet or computer networks – see Ultramercial, Inc. v. Hulu, LLC) as currently written. In each case, the courts have found such limitations insufficient to qualify as “significantly more” when recited in a claim with a judicial exception (see MPEP 2106.05(A)).
As written, the claims fail to be significantly more than the abstract idea because the claims use a computer or other machinery in its ordinary capacity for economic or other tasks or simply add a general purpose computer or computer components (i.e. machine learning model) after the fact to an abstract idea. Therefore, the claims continue to be viewed as examples of an abstract idea without significantly more and thus lack subject matter eligibility.
Additionally, where certain dependent claims rely upon similar additional elements as recited in claims 1, 12 and 20 these do not result in significantly more than the abstract idea itself. The additional elements of the dependent claims are treated at least similarly as those discussed above with respect to claims 1, 12 and 20.
Even when viewed as an ordered combination, the dependent claims simply convey the abstract idea itself applied on a generic computer and are held to be ineligible under Steps 2A/2B of the Mayo framework at least similar rationale as discussed above regarding claims 1, 12 and 20.
In view of the above, the Examiner concludes that there are no meaningful limitations in the claim that transform the judicial exception into a patent eligible application such that the claim amounts to significantly more than the judicial exception itself.
The analysis above applies to all statutory categories of invention. For at least these reasons above, the rejections under 35 USC 101 have been maintained and are explained in further detail below.
35 USC 103 rejection
Applicant’s arguments with respect to the previous rejection of claims 1-20 under 35 USC 103 have been fully considered and are persuasive, in view of the accompanying amendments. The claim rejections have been withdrawn and the claims are indicated allowable over the prior art (though the rejection under 35 USC 101 remains), as set forth below.
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 1-9, 12-18 and 20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more.
Step 1:
Claims 1-9 are directed to a method, which is a process. Claims 12-18 are directed to a computer program product, which is an apparatus. Claim 20 is directed to a system, which is a machine. Therefore, claims 1-9, 12-18 and 20 are directed to one of the four statutory categories of invention.
Step 2A (Prong 1):
Representative claim 1 sets forth the following limitations which recite the abstract idea of providing product recommendations:
receiving an order from a user, the order including one or more items to obtain from a source specified by the order;
generating scores for items included in the order by applying a foundational item model to the order and attributes of the items included in the order, wherein the foundational item model comprises a machine-learning model and is trained by:
retrieving training data including a plurality of training examples, each training example including: a grouping of items and attributes of items included in the grouping, and a label indicating which items of the grouping are foundational items;
applying the foundational item model to each training example of the training data to generate a predicted score for an item in the training example;
evaluating a loss function that compares the label of the training example to the predicted score; and
updating one or more parameters of the foundational item model based on the evaluated loss function;
identifying a foundational item from the one or more items included in the order based on the generated scores from the foundational item model;
generating a sequence of the items in the order based on the identified foundational item, each item in the order having a corresponding position in the sequence, wherein generating the sequence of the items in the order based on the foundational item comprises:
generating a set of candidate sequences, each candidate sequence including the foundational item in a different position;
generating an expected cost for each candidate sequence, the expected cost based at least in part on a probability of the foundational item being unavailable at the source, wherein generating the expected cost for a candidate sequence comprises subtracting a cost to the computer system for an amount of time the user spends obtaining items when the foundational item has a highest position in the sequence from a product of the probability of the foundational item being unavailable and a cost to the computer system for a user restocking items having positions in the candidate sequence higher than a position of the foundational item in the candidate sequence; and selecting the sequence as a candidate sequence having a minimum expected cost; and
generating a collection interface for presentation by a user client device to the user, the collection interface presenting the one or more items in the determined sequence to provide an ordered sequence for obtaining the items from the source.
The recited limitations above set forth steps to provide product recommendations. These limitations amount to certain methods of organizing human activity, including commercial or legal interactions (e.g. advertising, marketing or sales activities or behaviors).
Such concepts have been identified by the courts as abstract ideas (see: MPEP 2106).
Step 2A (Prong 2):
Examiner notes that representative claim 1 recites additional elements such as a processor, computer, etc. However, even with additional features such as these, the claims fail to integrate the recited judicial exception into a practical application of the exception. The claims merely include instruction to implement an abstract idea on a computer, or to merely use a computer as a tool to perform an abstract idea, while the additional elements do no more than generally link the use of a judicial exception to a particular field of technological environment or field of use.
Furthermore, this is also because the claim fails to (i) reflect an improvement in the functioning of a computer, or an improvement to other technology or technical field, (ii) implement a judicial exception with a particular machine, (iii) effect a transformation or reduction of a particular article to a different state or thing, or (iv) apply the judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment.
In view of the above, under Step 2A (Prong 2), claim 1 does not integrate the recited exception into a practical application (see again: MPEP 2106).
Step 2B:
When taken individually or as a whole, the additional elements of claim 1 do not provide an inventive concept (i.e. whether the additional elements amount to significantly more than the exception itself). As discussed above with respect to integration of the abstract idea into a practical application, the additional elements of a processor or computer to perform the steps amount to no more than mere instructions to apply the exception using a generic computer component. Mere instructions to apply an exception using a generic computer component cannot provide an inventive concept. Certain additional elements also recite well-understood, routine, and conventional activity (See MPEP 2106.05(d)).
Even if considered as an ordered combination, any additional elements of claim 1 do not add anything further than when they are considered individually.
In view of the above, claim 1 does not provide an inventive concept under step 2B, and is ineligible for patenting.
Dependent claims 2-9 recite further complexity to the judicial exception (abstract idea) of claim 1, such as by further defining the steps for providing product recommendations. Thus, each of claims 2-9 are held to recite a judicial exception under Step 2A (Prong 1) for at least similar reasons as discussed above.
Therefore, dependent claims 2-9 do not add “significantly more” to the abstract idea. The dependent claims recite additional functions that describe the abstract idea and only generally link the abstract idea to a particularly technological environment, and applied on a generic computer. Further, the additional limitations fail to provide an improvement to the functioning of the computer, another technology, or a technical field.
Even when viewed as an ordered combination, the dependent claims simply convey the abstract idea itself applied on a generic computer and are held to be ineligible under Steps 2A/2B for at least similar rationale as discussed above regarding claim 1.
The analysis above applies to all statutory categories of invention. Regarding independent claims 12 (program product) and 20 (system), the claims recite substantially similar limitations as set forth in claim 1. As such, claims 12 and 20 and their dependent claims 13-18 are rejected for at least similar rationale as discussed above.
Potentially Allowable Subject Matter
Claims 1-9, 12-18 and 20 are allowable over the prior art, though the rejection under 35 USC 101 still applies. The following is an examiner’s statement of reasons for allowance:
Upon review of the evidence at hand, it is hereby concluded that the totality of the evidence, alone or in combination, neither anticipates, reasonably teaches, nor renders obvious the below noted features of the applicant's invention. Claims 1-6, 8 and 17-29 are allowable as follows:
The most relevant prior art made of record includes Archak et al. (U.S. Pre-Grant Publication No. 2021/0192596 A1) (“Archak”), Gharghabi et al. (U.S. Pre-Grant Publication No. 2023/0410054 A1) (“Gharghabi”) and Motwani et al. (U.S. Pre-Grant Publication No. 2020/0273083 A1) (“Motwani”). While the prior art teaches many of the limitations of claims 1, 12 and 20, the prior art fails to teach generating a set of candidate sequences, each candidate sequence including the foundational item in a different position and generating an expected cost for each candidate sequence, the expected cost based at least in part on a probability of the foundational item being unavailable at the source, wherein generating the expected cost for a candidate sequence comprises subtracting a cost to the computer system for an amount of time the user spends obtaining items when the foundational item has a highest position in the sequence from a product of the probability of the foundational item being unavailable and a cost to the computer system for a user restocking items having positions in the candidate sequence higher than a position of the foundational item in the candidate sequence; and selecting the sequence as a candidate sequence having a minimum expected cost.
Additionally, PTO Form 892-U, the article “Leveraging knowledge of Previous Baskets to Anticipate online Buyer Behaviour” discloses a variety of techniques for improving sales through the use of customer transaction history analysis. Although the article discusses various techniques and innovations to enhance revenue through the use of machine learning, the article fails to disclose generating a set of candidate sequences, each candidate sequence including the foundational item in a different position and generating an expected cost for each candidate sequence, the expected cost based at least in part on a probability of the foundational item being unavailable at the source, wherein generating the expected cost for a candidate sequence comprises subtracting a cost to the computer system for an amount of time the user spends obtaining items when the foundational item has a highest position in the sequence from a product of the probability of the foundational item being unavailable and a cost to the computer system for a user restocking items having positions in the candidate sequence higher than a position of the foundational item in the candidate sequence; and selecting the sequence as a candidate sequence having a minimum expected cost, as is required by the present claims. Therefore, PTO-Form 892-U does not render the claimed invention novel or non-obvious.
The examiner further emphasizes the claims as a whole and hereby asserts that the totality of the evidence fails to set forth, either explicitly or implicitly, an appropriate rationale for further modification of the evidence at hand to arrive at the claimed invention. The combination of features as claimed would not have been obvious to one of ordinary skill in the art as combining various references from the totality of the evidence to reach the combination of features as claimed would require a substantial reconstruction of the Applicant's claimed invention relying on improper hindsight bias.
It is thereby asserted by the examiner that, in light of the above and in further deliberation over all the evidence at hand, that the claims are allowable as the evidence at hand does not anticipate the claims and does not render obvious any further modification of the references to a person of ordinary skill in the art.
Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.”
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 extension fee 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 date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANAND LOHARIKAR whose telephone number is 571-272-8756. The examiner can normally be reached Monday-Friday, 9am-5pm.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Marissa Thein can be reached at 571-272-6764. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ANAND LOHARIKAR/Primary Examiner, Art Unit 3689
