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 .
DETAILED ACTION
Status of Claims
This Non-Final Office Action is in response to Applicant’s Request for Continued Examination (RCE) filed 07/01/2026.
In accordance with Applicant’s amendment, claims 1, 9, and 17 are amended. Claims 1-20 are currently pending.
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submissions filed on 07/01/2026 have been entered.
Response to Amendment
The 35 U.S.C. §103 rejection of claims 1-20 is withdrawn in response to applicant’s amendment.
Response to Arguments
Response to §101 arguments – Applicant’s arguments (Remarks at pgs. 12-17) with respect to the §101 rejection of claims 1-20 have been considered, but are not persuasive.
In response to Applicant’s reliance on Ex Parte Desjardins and suggestion that applicant’s claims similarly reflect an improvement to how a technical system operates that was identified in the specification (Remarks at pg. 13), the Examiner first notes that the fact pattern and claimed subject matter under consideration in Desjardins shares virtually no substantive similarities to applicant’s claims in this instance. For example, in Desjardins, which was directed to a computer-implemented method of training a machine learning model, the claimed improvement (which was supported by the Specification) was deemed to allow artificial intelligence (AI) systems to use less storage capacity and reduce system complexity. Applicant’s claimed yield a result of performing a step for merely “calculating an evaluation value for evaluation of how much each of the plurality of products is considered to have come into sight of the plurality of customers based on an aggregation of products located within the boundaries of the generated two-dimensional polygonal estimation regions for the plurality of customers,” which falls squarely under the scope of the abstract idea itself, and moreover, has no nexus to machine-learning or artificial intelligence, nor any discernible improvement in terms of computing system storage capacity or reduced system complexity. A thorough review of the claims and Specification, including the above-noted final step for “calculating…,” reveals the absence of any discernible machine learning, artificial intelligence, or the like, and fails to describe or even suggest a reduction in storage capacity or system complexity analogous Desjardins.
In response to applicant’s argument that “the pipeline reflects the technical improvement identified in the Specification” and that “the claimed approach enables evaluation of product visibility with reduced computational resources compared to systems requiring analysis of continuous movement trajectory” (Remarks at pg. 15), citing the alleged technical problem of “the difficulty, and practicable infeasibility of acquiring continuous customer movement trajectory data for retail analytics” (Remarks at pg. 13), the Examiner maintains that retail analytics and acquiring customer movement trajectories in a store is not reasonably considered as an inherently technical problem, but instead is a business-centric problem addressed plainly rooted in marketing and customer behavior analysis. None of the acquiring, generating, or calculating steps invoke any technical elements, but instead fall within the scope of the abstract idea itself, which at most is implemented with generic computing elements (as discussed in the Step 2 analysis in the §101 rejection), and any benefit from such generic computer implementation is merely the result of using a generic computer as a tool to perform the step(s) rather than the sequence of steps/activities recited in the method itself and does not materially alter the patent eligibility of the claim. See Bancorp Servs., L.L.C. v. Sun Life Assurance Co. of Can. (U.S.), 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.”) (cited in the Federal Circuit's FairWarning decision). Therefore, the additional elements in the form of generic computer implementation to perform the acquiring, acquiring, generating, or calculating merely serves to tie the abstract idea to a particular operating environment, which neither renders the problem/solution as technical nor transforms the abstract idea into eligible subject matter. See, Alice Corp., 134 S. Ct. 2347, 110 USPQ2d 1976; Versata Dev. Group, Inc. v. SAP Am., Inc., 793 F.3d 1306, 1334, 115 USPQ2d 1681, 1701 (Fed. Cir. 2015). See also, Alice Corp., 134 S. Ct. 2347, 110 USPQ2d 1976; Versata Dev. Group, Inc. v. SAP Am., Inc., 793 F.3d 1306, 1334, 115 USPQ2d 1681, 1701 (Fed. Cir. 2015).
In response to applicant’s suggestion that the claims result in “reduced computational resources” (Remarks at pg. 15), applicant’s Specification is silent in this regard. Moreover, applicant has not shown this result to necessarily be achieved within the scope of the claimed invention. Any alleged result in the form of computational efficiency (reduction in the amount of computation required, reduction in input or processing power) by performing applicant’s invention as compared to the hypothetical approach proffered by applicant (i.e., “…systems requiring analysis of continuous movement trajectory”) is nothing more than an unproven, incidental, or inevitable result of using technical approaches, which does not amount to a technological improvement. Under applicant’s line of reasoning, discarding the generic computer implementation and simply performing all steps mentally by human observation and judgment would amount to a reduction in computational resources and thus a technical improvement. Applicant’s attention is directed to PTAB Appeal Decision 2023-002258, which is instructive in view of its rationale addressing a similar argument (Decision at pgs. 19-21).
Applicant’s citation to the CAFC’s Enfish, McRO, SRI International decisions are noted (Remarks at pg. 16), however applicant has not presented and discussion or analysis of these decision to show how/why they support a finding of eligibility in the instant case. The Examiner, nevertheless, has reviewed these decisions and found the fact pattern and eligibility rationale to provide nothing of substance that would tend to compel a finding of eligibility of applicant’s claims in this instance.
Under Step 2A Prong One of the eligibility inquiry, Applicant argues that the claims are not “certain methods of organizing human activity” and that “the claims cannot be practically performed in the human mind” (Remarks at pg. 16). However, the Examiner relies on the Step 2A Prong One analysis of the §101 rejection set forth in the previous office action and updated in the instant office action, which provides step-by-step analysis explaining why certain limitations have been determined to set forth or describe activity falling under both the “Certain Methods of Organizing Human Activity” and “Mental Processes” abstract idea groupings. Applicant has not effectively rebutted or even acknowledged these findings, such as by specifically pointing out supposed errors in these findings or explaining why any of the steps could not be practically performed in the human, such as by using human observation, evaluation, opinion, or judgment or with the aid of pen and paper.
In response to applicant’s argument that the claims cannot be practically performed in the human mind due to the “hundreds of products and potentially thousands of customers” in a commercial retail environment (Remarks at pg. 17), this argument lacks merit because the claims do not recite or inherently require the above-noted features and it would be improper to import this limitation from the specification. See Superguide Corp. v. DirecTV Enterprises, Inc., 358 F.3d 870, 875, 69 USPQ2d 1865, 1868 (Fed. Cir. 2004). See also, CollegeNet, Inc. v. Apply Yourself Inc., 418 F.3d 1225, 1231 (Fed. Cir. 2005) (while the specification can be examined for proper context of a claim term, limitations from the specification will not be imported into the claims). Accordingly, the argument is not persuasive because it relies on a narrower scope and/or features than are required by the claims.
For the reasons above along with the reasons below in the updated §101 rejection, the amendments and supporting arguments are not sufficient to overcome the §101 rejection.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-20 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor, or for pre-AIA the applicant regards as the invention.
Claims 1, 9, and 17 each recite the limitation of “the polygon,” however this limitation lacks antecedent basis. It is unclear whether “the polygon” is intended to relate back to the “two-dimensional polygonal estimation region” that was previously introduced in the claim, or whether “the polygon” is intended to be distinct from the polygonal estimation region. For purposes of examination, the polygon will be interpreted as referring to a polygon that represents the two-dimensional polygonal estimation region. Appropriate correction is required.
Claims 2-8, 10-16, and 18-20 depend from claims 1/9/17 and fail to cure the deficiency discussed above, and therefore are rendered indefinite based on inheritance of the indefiniteness of their base claims.
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-patentable subject matter. The claims are directed to an abstract idea without significantly more.
Claims 1-20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more. The judicial exception is not integrated into a practical application. The claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception. The eligibility analysis in support of these findings is provided below, in accordance with the subject matter eligibility guidance set forth in MPEP 2106.
With respect to Step 1 of the eligibility inquiry (as explained in MPEP 2106.03), it is first noted that the claimed non-transitory computer-readable recording medium (claims 1-8), method (claims 9-16), and device (claims 17-20) are each directed to a potentially eligible category of subject matter (i.e., article of manufacture, process, and machine). Accordingly, claims 1-20 satisfy Step 1 of the eligibility inquiry.
With respect to Step 2A Prong One of the eligibility inquiry (as explained in MPEP 2106.04), it is next noted that the claims recite an abstract idea that falls under the “Certain methods of organizing human activity” abstract idea grouping by reciting limitations that describe activities considered commercial interactions (sales or marketing activity) pursuant to evaluating customer sighting of a product, and steps that, but for the generic computer implementation, may be implemented as “Mental Processes” (e.g., observation, evaluation, judgment, or opinion). The limitations reciting the abstract idea as set forth in independent claim 1 are identified in bold text below, whereas the additional elements are presented in plain text and are separately evaluated under Step 2A Prong Two and Step 2B:
acquiring first information that includes coordinate information related to arrangement of a plurality of products in a store (This step describes activity for gathering product arrangement information, which is considered sales and marketing activity, and furthermore this step, but for the generic computer implementation, could be implemented as mental activity such as by observation, evaluation, judgment, or opinion and/or with the aid of pen and paper. In addition, the “acquiring” step may be considered insignificant extra-solution activity, which is not enough to amount to a practical application (MPEP 2106.05(g)), and such extra-solution activity has also been recognized as well-understood, routine, and conventional, and thus insufficient to add significantly more to the abstract idea. See MPEP 2106.05(d) - 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));
acquiring second information that includes information that specifies a sequence of a plurality of the products purchased by each of a plurality of customers, the second information being acquired without directly acquiring continuous movement trajectory data of the plurality of customers within the store (This step describes activity for gathering customer-product purchasing information, which is considered sales and marketing activity, and furthermore this step, but for the generic computer implementation, could be implemented as mental activity such as by observation, evaluation, judgment, or opinion and/or with the aid of pen and paper. In addition, the “acquiring” step may be considered insignificant extra-solution activity, which is not enough to amount to a practical application (MPEP 2106.05(g)), and such extra-solution activity has also been recognized as well-understood, routine, and conventional, and thus insufficient to add significantly more to the abstract idea. See MPEP 2106.05(d) - 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));
generating, for each pair of at least two successively purchased products specified in the second information, a respective two-dimensional polygonal estimation region representing a probabilistic area of potential customer visibility during movement between the location of said two successively purchased products using coordinates of the two successively purchased products as vertices of the polygon (This step describes sales and marketing activity since the generating of polygons representing customer visibility is considered analyzing customer behavior and is thus marketing activity, and furthermore this step, but for the generic computer implementation, could be implemented as mental activity such as by observation, evaluation, judgment, or opinion and/or with the aid of pen and paper); and
calculating an evaluation value for evaluation of how much each of the plurality of products is considered to have come into sight of the plurality of customers based on an aggregation of products located within the boundaries of the generated two-dimensional polygonal estimation regions for the plurality of customers (This step describes sales and marketing activity since the calculated evaluation value is indicative of a customer’s visualization of a product, which is customer behavior analysis and thus marketing activity, and furthermore this step, but for the generic computer implementation, could be implemented as mental activity such as by observation, evaluation, judgment, or opinion and/or with the aid of pen and paper).
Independent claims 9 and 17 recite similar limitations as those set forth in claim 1 as discussed above, and have therefore been determined to recite the same abstract idea as claim 1.
With respect to Step 2A Prong Two of the eligibility inquiry (as explained in MPEP 2106.04(d)), the judicial exception is not integrated into a practical application. Independent claims 1, 9, and 17 recite the additional elements of a non-transitory computer-readable recording medium storing an information processing program, a computer, and an information processing device comprising a processor and a memory. The additional elements have been evaluated, but fail to integrate the abstract idea into a practical application because they amount to using generic computing elements or instructions (software) to perform the abstract idea, similar to adding the words “apply it” (or an equivalent), which merely serves to link the use of the judicial exception to a particular technological environment (generic computing environment). See MPEP 2106.05(f) and 2106.05(h). Even if the acquiring steps are considered as additional elements, these steps at most amount to insignificant extra-solution activity accomplished via receiving/transmitting data, which is not enough to amount to a practical application. See MPEP 2106.05(g). In addition, these limitations, when considered individually or as an ordered combination, fail to provide an improvement to the functioning of a computer or to any other technology or technical field, fail to apply the exception with a particular machine, fail to apply the judicial exception to effect a particular treatment or prophylaxis for a disease or medical condition, fail to effect a transformation of a particular article to a different state or thing, and fail to apply/use the abstract idea in a meaningful way beyond generally linking the use of the judicial exception to a particular technological environment.
Accordingly, because the Step 2A Prong One and Prong Two analysis resulted in the conclusion that the claims are directed to an abstract idea, additional analysis under Step 2B of the eligibility inquiry must be conducted in order to determine whether any claim element or combination of elements amount to significantly more than the judicial exception.
With respect to Step 2B of the eligibility inquiry (as explained in MPEP 2106.05), it has been determined that the claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception. Independent claims 1, 9, and 17 recite the additional elements of a non-transitory computer-readable recording medium storing an information processing program, a computer, and an information processing device comprising a processor and a memory. These additional elements have been evaluated, but fail to add significantly more to the claims because they amount to using generic computing elements or instructions/software to perform the abstract idea, which merely serves to tie the abstract idea to a particular technological environment (generic computing environment), similar to adding the words “apply it” (or an equivalent). Accordingly, the generic computer implementation merely serves to link the use of the judicial exception to a particular technological environment and therefore does not amount to significantly more than the abstract idea itself. See, e.g., Alice Corp., 134 S. Ct. 2347, 110 USPQ2d 1976; Versata Dev. Group, Inc. v. SAP Am., Inc., 793 F.3d 1306, 1334, 115 USPQ2d 1681, 1701 (Fed. Cir. 2015).
Even if the acquiring steps are considered as additional elements, these steps at most amount to insignificant extra-solution activity accomplished via receiving/transmitting data, which is well-understood, routine, and conventional activity and thus insufficient to add significantly more to the claims. 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).
In addition, when taken as an ordered combination, the ordered combination adds nothing that is not already present as when the elements are taken individually. There is no indication that the combination of elements integrate the abstract idea into a practical application. Their collective functions merely provide generic computer implementation. Therefore, when viewed as a whole, these additional claim elements do not provide meaningful limitations to transform the abstract idea into a practical application of the abstract idea or that, as an ordered combination, amount to significantly more than the abstract idea itself.
Dependent claims 2-8, 10-16, and 18-20 recite the same abstract idea(s) as recited in the independent claims, and have been determined to recite further details/steps falling under the “Certain methods of organizing human activity” and/or “Mental Processes” abstract idea groupings discussed above along with the same generic computing elements recited in the independent claims which, merely serve the purpose of tying the invention to a particular technological environment and which, as discussed above, is insufficient to integrate the abstract idea into a practical application or add significantly more to the claims. The ordered combination of elements in the dependent claims (including the limitations inherited from the parent claim(s)) add nothing that is not already present as when the elements are 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 generic computer implementation. Accordingly, the subject matter encompassed by the dependent claims fails to amount to a practical application or significantly more than the abstract idea itself.
Allowable over the prior art
Claims 1-20 are allowable over the prior art. The closest prior art reference of record, Sorensen (US 2002/0178085), is directed to features for purchase selection behavior analysis. Sorensen et al. and the other prior art of record teach several features of claims 1/9/17, including for example: acquiring first information that includes coordinate information related to arrangement of a plurality of products in a store (Sorensen at pars. 8-10, 37, 59-61, and Figs. 1, 5, and 8); acquiring second information that includes information that specifies a sequence of a plurality of the products purchased by each of a plurality of customers (Sorensen at pars. 10, 29, 46, 52, 54, and Figs. 8 and 11), as recited by claim 1 and as similarly encompassed by independent claims 9/17. However, Swinson et al. and the other prior art references of record do not teach or render obvious the limitations directed to generating, for each pair of at least two successively purchased products specified in the second information, a respective two-dimensional polygonal estimation region representing a probabilistic area of potential customer visibility during movement between the location of said two successively purchased products using coordinates of the two successively purchased products as vertices of the polygon; and calculating an evaluation value for evaluation of how much each of the plurality of products is considered to have come into sight of the plurality of customers based on an aggregation of products located within the boundaries of the generated two-dimensional polygonal estimation regions for the plurality of customers, as recited and arranged in combination with the other limitations of independent claim 1 and as similarly encompassed by independent claims 9/17, thereby rendering claims 1-20 as allowable over the prior art. Claims 1-20 are not allowed, however, because they stand rejected under 35 USC §112(b) and §101, as discussed above.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure:
Sorensen (US 2004/0111454): discloses shopping environment analysis techniques, including acquiring first information that includes coordinate information related to arrangement of a plurality of products in a store (pars. 26-28, 30, 34, 48, and Fig. 6: data received from the shopping environments includes shopper path data … product position data; Product position data 26 typically includes position data 118 including a series of product positions 120 indicated by an array of coordinate pairs; store map also typically includes information on the position of products within the shopping environment; track the location of…products throughout the shopping environment); acquiring second information that includes information that specifies a sequence of a plurality of the products purchased by each of a plurality of customers (pars. 26-28, 30, 42, 44, 47, and Fig. 6: Purchase data 24 typically includes a list 114 of products purchased by the shopper, as indicated by purchase records from purchase records computer; purchase records and shopper paths may be linked by coordinating the time and location of checkout in the shopper data and purchase data; data received from the shopping environments includes…purchase data; link the shopper path and the purchase record; FIG. 6 shows a database record 100 including stored shopper path data 22, non-shopper path data 23, purchase data 24, product position data 26, and environment data); and generating an estimation region (pars. 28, 35, 40, 73, and Figs. 4-5: track the position of a shopper; link the purchase data 24 with the shopper path data 22 to identify those purchase records that correspond with each shopper path; FIG. 4 shows exemplary shopper paths 92 and non-shopper paths 93 tracked by tracking system 36, within shopping environment; determine whether a predetermined shopping behavior is exhibited within the shopping path; detect whether a shopping path visits (i.e., passes through) the predetermined product region, shops…or purchases a product in the predetermined region; shopping path is considered to show purchasing behavior in a region of the shopping environment when it is determined that the shopper has selected an item in the region for purchase).
Arai et al. (US 2023/0027388): discloses price determination features, including features for detecting a line or sight of a customer (par. 41).
Shivashankar et al. (US 2019/0108561): discloses purchase intent determination and real time in-store shopper assistance features, including multiple regions of interest within a field of view of a sensor (par. 46).
Sekine et al. (US 2011/0007152): discloses a flow line recognition system for monitoring paths of moving objects throughout an area, including generating flow line information indicative of a moving object and time information related thereto (at least paragraph 24).
Harada (US 2015/0066551): discloses features for analyzing flow line data, including analyzing stay time associated with a specific area (at least paragraph 72).
Wang et al. (US 2015/0324812): discloses a method/device for obtaining customer traffic distribution, including receiving coordinates from a plurality of mobile devices within an environment divided into a plurality of grids (at least paragraphs 42, 47, 52, 61, 93, 117, and Figs. 1-8), determining a grid to which the mobile devices belong based on the coordinate data of the mobile devices (at least paragraphs 47, 78, 62, and 65-66), and outputting a distribution map of customer traffic, flow, and density based on the number of mobile devices in each grid (paragraphs 38, 73, 87-88, 99-100, 128, and Fig. 7).
D. A. Mora Hernandez, O. Nalbach and D. Werth, "How Computer Vision Provides Physical Retail with a Better View on Customers," 2019 IEEE 21st Conference on Business Informatics (CBI), Moscow, Russia, 2019, pp. 462-471: discloses features for generating movement tracks over time for individual customers, including a visual acquisition system (IP cameras) and data analysis (statistics, supervised/unsupervised learning) to assist with shoplifting prevention, layout optimization, real-time recommendations, and staff deployment.
A. A. Pandit, J. Talreja, M. Agrawal, D. Prasad, S. Baheti and G. Khalsa, "Intelligent Recommender System Using Shopper's Path and Purchase Analysis," 2010 International Conference on Computational Intelligence and Communication Networks, Bhopal, India, 2010, pp. 597-602: discloses features for analyzing customer behavior (paths and purchases) in order to recommend changes to store layout and increase saleability of products.
Any inquiry of a general nature or relating to the status of this application or concerning this communication or earlier communications from the Examiner should be directed to Timothy A. Padot whose telephone number is 571.270.1252. The Examiner can normally be reached on Monday-Friday, 8:30 - 5:30. If attempts to reach the examiner by telephone are unsuccessful, the Examiner’s supervisor, Brian Epstein can be reached at 571.270.5389. The fax phone number for the organization where this application or proceeding is assigned is 571- 273-8300.
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/TIMOTHY PADOT/
Primary Examiner, Art Unit 3625
08/21/2026
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