DETAILED ACTION
This Non-Final Office action is in response to Applicant’s filing on 10/30/2024. Claims 1-20 are pending. The effective filing date of the claimed invention is 11/21/2018.
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 .
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 claims are found to be directed to abstract idea.
Step 1 – Claims 1-5 are machine claims; claims 6-16 are process claims; and, claims 17-20 are manufacture claims. Step 1 is satisfied.
Step 2A Prong 1 – Exemplary claim 1 (and similarly claims 6 and 16) recites the following abstract idea:
causing, by one or more computing devices of a service provider, an electronic menu to be presented via one or more merchant computing devices of a merchant (MPEP 2106.04(a)(2)(III)(A) claim to “collecting information, analyzing it, and displaying certain results of the collection and analysis,” where the data analysis steps are recited at a high level of generality such that they could practically be performed in the human mind, Electric Power Group v. Alstom, S.A., 830 F.3d 1350, 1353-54, 119 USPQ2d 1739, 1741-42 (Fed. Cir. 2016));
receiving, by the one or more computing devices and from at least one merchant computing device of the one or more merchant computing devices, a first request indicating that a first instance of a first item of a plurality of items offered for sale by the merchant has been requested by a customer (e.g. MPEP 2106.04(a)(2)(III)(A) & (C));
determining, by the one or more computing devices, that an efficiency associated with preparing or producing a second item offered for sale by the merchant or a second instance of the first item in a batch with the first instance of the first item is above a threshold efficiency (e.g. MPEP 2106.04(a)(2)(III)(A) & (C));
responsive at least in part on receiving the first request and determining that the efficiency is above the threshold efficiency, dynamically updating, by the one or more computing devices, the electronic menu to an updated electronic menu, wherein the updated electronic menu includes a promotion for the second item or the second instance of the first item (MPEP 2106.04(a)(2)(II)(C) citing Internal Licensing); and
causing, by the one or more computing devices, the updated electronic menu to be presented via the one or more merchant computing devices (MPEP 2106.04(a)(2)(II)(C) citing Internal Licensing; see Interval Licensing, opinion at page 5:
According to the specification, the attention manager coordinates the display of this acquired content through a set of instructions that enable, inter alia, the following: (i) acquiring content from a content-providing information source, (ii) controlling the timing of the display of the acquired content, (iii) displaying the content, and (iv) acquiring an updated version of the previously-acquired content whenever the information source updates its content. Id. col. 4 ll. 26–59.
This is describing dynamic updating and then presenting the updated data by controlling the timing of the display of the acquired content. Found to be abstract idea).
When viewed alone and in ordered combination, these limitations are found to recite abstract idea.
Step 2A Prong 2 – Exemplary claim 1 recites the additional elements of one or more processors, one or more non-transitory CRM that perform the abstract idea. Claim 1 also recites one or more computing devices, one or more merchant computer devices. These additional elements are not found to integrate the abstract idea into practical application. See MPEP 2106.05(F) mere instructions to apply an exception not sufficient, otherwise known as the “apply it” rationale. When these additional elements are viewed alone and in ordered combination, they are found to be directed to abstract idea.
Step 2B – Claim 1 is not found to recite significantly more. The additional element analysis of step 2A Prong 2 is equally applied here. Another consideration when determining whether a claim recites significantly more than a judicial exception is whether the additional element(s) are well-understood, routine, conventional activities previously known to the industry. This consideration is only evaluated in Step 2B of the eligibility analysis. See MPEP 2106.05(d). The courts have recognized the following computer functions, and likewise corresponding claim language, as well‐understood, routine, and conventional (WURC) functions when they are claimed in a merely generic manner (e.g., at a high level of generality) or as insignificant extra-solution activity.
Claim limitations of receiving and transmitting data found to be WURC - i. Receiving or transmitting data over a network, e.g., using the Internet to gather data, Symantec, 838 F.3d at 1321, 120 USPQ2d at 1362 (utilizing an intermediary computer to forward information); TLI Communications LLC v. AV Auto. LLC, 823 F.3d 607, 610, 118 USPQ2d 1744, 1745 (Fed. Cir. 2016) (using a telephone for image transmission); OIP Techs., Inc., v. Amazon.com, Inc., 788 F.3d 1359, 1363, 115 USPQ2d 1090, 1093 (Fed. Cir. 2015) (sending messages over a network); buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355, 112 USPQ2d 1093, 1096 (Fed. Cir. 2014) (computer receives and sends information over a network); but see DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1258, 113 USPQ2d 1097, 1106 (Fed. Cir. 2014) (“Unlike the claims in Ultramercial, the claims at issue here specify how interactions with the Internet are manipulated to yield a desired result‐‐a result that overrides the routine and conventional sequence of events ordinarily triggered by the click of a hyperlink.” (emphasis added));
Claim limitations of storing data and updating data in logs found to be WURC - iii. Electronic recordkeeping, Alice Corp. Pty. Ltd. v. CLS Bank Int'l, 573 U.S. 208, 225, 110 USPQ2d 1984 (2014) (creating and maintaining “shadow accounts”); Ultramercial, 772 F.3d at 716, 112 USPQ2d at 1755 (updating an activity log);
iv. Presenting offers and gathering statistics, OIP Techs., 788 F.3d at 1362-63, 115 USPQ2d at 1092-93;
dynamic aspects found to be WURC - ii. Performing repetitive calculations, Flook, 437 U.S. at 594, 198 USPQ2d at 199 (recomputing or readjusting alarm limit values); Bancorp Services v. Sun Life, 687 F.3d 1266, 1278, 103 USPQ2d 1425, 1433 (Fed. Cir. 2012) (“The computer required by some of Bancorp’s claims is employed only for its most basic function, the performance of repetitive calculations, and as such does not impose meaningful limits on the scope of those claims.”)
Accordingly, when viewed alone and in combination, these limitations are found to be directed to abstract idea.
Dependent claims – Claims 2-4, 7-9, and 17, 18 recites more abstract idea. MPEP 2106.04(a)(2)(II)(A-B). Claims 5 and 20 recites more abstract idea similar to the claim 1 analysis. Claim 10, 19 recites more abstract idea. MPEP 2106.04(a)(2)(I). Claim 11 recites more abstract idea. MPEP 2106.04(a)(2)(II)(A-B). Claim 12 recites more additional element under “apply it” rationale. MPEP 2106.05(f). Claim 13 recites more abstract idea. MPEP 2106.04(a)(2)(I) and (III). Claim 14 recites more abstract idea. MPEP 2106.04(a)(2)(III). Claim 15 recites more abstract idea. MPEP 2106.04(a)(2)(II).
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 (i.e., changing from AIA to pre-AIA ) 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 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.
Claim(s) 1-9, 11-12, 14-18, and 20 are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Pat. Pub. No. 2015/0287151 to Scrivano et al. (“Scrivano”) in view of U.S. Pat. Pub. No. 2009/0026273 to Gelbman (“Gelbman”).
With regard to claims 1, 6, 12, and 16, Scrivano discloses the claimed: one or more processors (e.g. Fig. 1); and one or more non-transitory computer-readable media storing instructions executable by the one or more processors, wherein the instructions cause the one or more processors to perform acts comprising (e.g. Fig. 1):
causing, by one or more computing devices of a service provider, an electronic menu to be presented via one or more merchant computing devices of a merchant (e.g. [0033-34]);
receiving, by the one or more computing devices and from at least one merchant computing device of the one or more merchant computing devices, a first request indicating that a first instance of a first item of a plurality of items offered for sale by the merchant has been requested by a customer (e.g. [0032] [0042] [0046]);
determining, by the one or more computing devices, that an efficiency associated with preparing or producing a second item offered for sale by the merchant or a second instance of the first item in a batch with the first instance of the first item is above a threshold efficiency (see e.g. [0075] The production forecasting will attempt to estimate the total number of various pizza/bread types that need to be prepared and stored onto the ready rack on hourly basis. . . . The forecast is refreshed every minute to detect existing product expirations and usages so that forecast can be updated accordingly) Any time prepared pizza/bread is placed into the cooking oven, the associated quantity would be reduced from available queue. This would update the forecast accordingly as well. [0077] The cooked pizza/bread forecast will attempt to estimate the total number of various pizza/bread types that need to be in the warmer on half hourly basis. This of course would factor the existing cooked pizza/bread already in the warmers not yet expired, any product already sold during current time block and any loss tracking factors. (The forecast is refreshed every minute to detect existing product expirations and usages so that forecast can be updated accordingly).);
responsive at least in part on receiving the first request and determining that the efficiency is above the threshold efficiency, dynamically updating, by the one or more computing devices, the electronic menu to an updated electronic menu ([0078] Any time cooked pizza/bread is sold to customer (via point-of-sale system 14 sales tracking), the associated quantity would be reduced from available queue. If it is not currently available, then the item would be reduced when production completes. This event would trigger the shortage tracking. This would update the forecast accordingly as well. Lastly, once the prepared pizza/bread is placed onto the oven belt, the food preparation display system 12 will automatically assume such product is going to be in the warmer after a predefined cook/cut time for each product. Additionally, the estimated finish time is used to calculate this batch of product's expire time. This saves the landing staff from having to use the food preparation display system 12 again.), wherein the updated electronic menu includes a promotion for the second item or the second instance of the first item (e.g. [0078] and throughout, when the item is placed in the ovenbelt, the menu is updated and the item is promoted by being shown as available given the item value constraints); and
causing, by the one or more computing devices, the updated electronic menu to be presented via the one or more merchant computing devices ([0030] Kitchen personnel will be able to see each food item's “target” inventory level. As food is being prepared (i.e., pizza's put in the oven), they will touch the “Add 1” button repeatedly until it matches the number of items being prepared. For instance, when two pepperoni pizzas are put in the oven, they will touch the “Add 1” button two times. The two pepperoni pizzas will be added to the “pending” total. After a predetermined amount of time (which is a number defined for each category of food), the pending inventory can automatically move from pending to actual; therefore enabling the corresponding menu graphics to be timed or synchronized with food preparation. If a mistake is made, Kitchen personnel can remove pending inventory by touching the “Remove 1” button. In some embodiments, a waste button can be used to denote wasted items. However, for this limitation, Scrivano might not explicitly disclose that eh menu is presented “via the one or more merchant computing devices.” Gelbman teaches Electronic Menu Display System Employing A Plurality Of Portable Menus, Each Including An Electronic-ink Display Label For Displaying Information Updated By One Or More Activator Modules Within The Restaurant. Gelbman Title. In particular, Gelbman teaches the known implementation of restaurant electronic menus as merchant-provided electronic menu devices, including portable menus or electronic-ink displays that are updated by restaurant activation modules to display specials, price changes, substitutions, promotional logos, promotional symbols, and other menu information. Gelbman, abstract, [0027] published claim 1, claim 26, 27, 28; See Gelbman, claim 28: 28. The electronic menu display system of claim 1, wherein said graphics indicia on said portable menus is updated to inform customers of one or more of the following events: changes in item prices, when the kitchen runs out of an item or has to make a substitution; changes in food offerings; changes in ingredients of food offerings; options for preparing food offerings, special of the day; price changes; and changes in market prices of menu items, menu identification number, restaurant name, type of meal (e.g., lunch, dinner, ala carte, etc.), item price, portion size, unit price, market price, soup or vegetable of the day, server's name, manager's name, color, shades, promotion logos, promotional symbols, customer name, restaurant club membership designator, and personal customized message. Therefore, it would have been obvious to one of ordinary skill in the retail device art to modify Scrivano’s digital menu board restaurant system to use Gelbman’s merchant-provided electronic menu display devices, including portable electronic menus updated by activation modules, as taught by Gelbman, where the advantage is that this allows the user’s of Scrivano’s system to use the merchant-provided electronic devices that are portable and able to be moved, in addition to the digital menu board system of Scrivano. The modification would predictable improve the distribution and visibility of current menu and promotional items throughout the merchant location.).
With regard to claims 2, 7, and 17, Scrivano further discloses the efficiency comprises at least one of a cost savings, a time savings, a reduction in spoilage, or an increase in customer satisfaction (see e.g. [0022] to reach the target amount of available items to increase customer satisfaction and time savings, more profit).
With regard to claims 3, 8, and 18, Scrivano further discloses where determining that the efficiency is above the threshold efficiency comprises determining a reduction in at least one of a preparation time (e.g. [0078] This saves the landing staff from having to use the food preparation display system 12 again.), a required ingredient, a quantity of employees, a cost, or spoilage.
With regard to claims 4 and 9, Scrivano further discloses where determining that the efficiency is above the threshold efficiency is based at least in part on inventory data maintained in an inventory database associated with the merchant and maintained by the service provider, and wherein the inventory data comprises, for an individual item of the plurality of items, item description, item price, item availability, item count (see e.g. [0022] efficiency relates to creating at least the target amount of items, [0023] [0025-32]), item portion size, item portion count, item discount, item location, item image, or item characteristic.
With regard to claims 5, 14, and 20, Scrivano further discloses:
receiving, by the one or more computing devices, a second request indicating that the second item of the first item or the second instance of the first item has been requested (see e.g. [0037] demand for first/second item is taken into account, including receiving orders for such items);
determining, by the one or more computing devices, that the promotion is no longer available based at least in part on one of a lapse of a period or a lack of inventory of the second item or the second instance of the first item (see e.g. [0044] Available products (whether specialty or standard) are immediately reflected onto the digital menu board system 16 via digital menu board system 16 and food preparation display system 12 integration.);
responsive at least in part to determining that the promotion is no longer available, dynamically updating, by the one or more computing devices, the updated electronic menu to a second updated electronic menu, wherein the second updated electronic menu lacks the promotion (see e.g. [0044] Available products (whether specialty or standard) are immediately reflected onto the digital menu board system 16 via digital menu board system 16 and food preparation display system 12 integration. No longer would the store clerk be responsible to manually check product availability and then update the static menu board. When certain specialty products need to be promoted based on threshold level toggles, the food preparation display system 12 and digital menu board system 16 would work together to synchronize such events so that proper promotion triggers can be executed and reflected immediately on digital menu board system 16, alerting customers to take immediate actions.); and
causing, by the one or more computing devices, the second updated electronic menu to be presented via the one or more merchant computing devices (see e.g. [0044] Available products (whether specialty or standard) are immediately reflected onto the digital menu board system 16 via digital menu board system 16 and food preparation display system 12 integration. No longer would the store clerk be responsible to manually check product availability and then update the static menu board. When certain specialty products need to be promoted based on threshold level toggles, the food preparation display system 12 and digital menu board system 16 would work together to synchronize such events so that proper promotion triggers can be executed and reflected immediately on digital menu board system 16, alerting customers to take immediate actions.).
With regard to claim 11, Scrivano further discloses where the promotion comprises a reduced cost for at least one of the first instance of the first item, the second instance of the first item, or the second item ([0037] In some embodiments, pricing can be manually or dynamically controlled based on any one of a plurality of parameters, such as promotional programs, timing, demand, and the like; [0087] etc.).
With regard to claim 15, Scrivana further discloses: causing, by the one or more computing devices, an alert associated with availability of the promotion to be presented via at least one of the one or more merchant computing devices or the one or more customer computing devices ([0087] Each saleable product could be showcased with concurrently running video promotion, dynamic attention-getters (i.e. flames around a newly added item or one whose price has decreased, etc.), or other methods for drawings a customer's attention.).
Claim(s) 10, 13, 19 are rejected under 35 U.S.C. 103 as being unpatentable over Scrivana, Gelbman, in view of U.S. Pat. Pub. No. 2014/0180802 to Boal (“Boal”).
With regard to claim 10 and 19, Scrivana does not disclose the limitatiosn of claim 10. Boal teaches the rest of the limitations at e.g. [0176] [0200], [0283], [0289], [0369] [0390] [0402] [0531] etc. that machine learning mechanism can calculate metric/score for offers and compare to threshold, and storing transaction data for a plurality of consumers from a plurality of different sources, correlating the transaction data into consumer-specific transaction histories, and analyzing those histories to identify product trends. For the machine learning metric/threshold, the examiner refers to Boal that teaches scoring offers within a recommendation engine using scoring functions based on metrics derived from transaction data, offer tracking data, offer data, and consumer behavior logs. Boal further teaches different scoring functions for different objectives, such as revenue per impression, redemption rate, discount per consumer, and the like. Boal also states that recommendations may be learned using machine learning techniques. Therefore, it would have been obvious to one of ordinary skill in the art to modify Scrivana’s menu board system to include Boal’s machine learning offer-scoring metric as the claimed metric for determining whether a promotion/efficiency threshold has been met.
With regard to claim 13, Scrivana does not disclose claim 13. See Boal at e.g. [0176-178, 200, 283] etc. determines customers interested in item, analyzing the customer data using machine learning, and then presenting the targeted/customized/updated content to the user. See Boal Fig. 1, 10-12. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Scrivana’s menu system to include such targeting advertising and offer presentation, where when combined with Gelbman, it is clear that such targeted menu/item(s) can be presented to the user, based on machine learning of Boal, so that the offers presented to each user are custom tailored to each user, which potentially makes a higher likelihood of the user to select the offer(s) as the offers take into account users transactions histories and includes the use of machine learning.
Conclusion
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/PETER LUDWIG/Primary Examiner, Art Unit 3627
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