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 .
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 11/19/24 is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
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 a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more.
When considering subject matter eligibility under 35 U.S.C. 101, it must be determined whether the claim is directed to one of the four statutory categories of invention, i.e., process, machine, manufacture, or composition of matter. If the claim does fall within one of the statutory categories, it must then be determined whether the claim is directed to a judicial exception (i.e., law of nature, natural phenomenon, and abstract idea), and if so, it must additionally be determined whether the claim is a patent-eligible application of the exception. If an abstract idea is present in the claim, any element or combination of elements in the claim must be sufficient to ensure that the claim amounts to significantly more than the abstract idea itself. Examples of abstract ideas include fundamental economic practices; certain methods of organizing human activities; an idea itself; and mathematical relationships/formulas. Alice Corporation Pty. Ltd. v. CLS Bank International, et al., 573 U.S.___(2014).
Claims 1-9 are directed to a platform server; claims 10-11 are directed to a system, while claims 12-20 are directed to method of operating. As such, the claims are directed to statutory subject matter under Step 1 of the Alice flowchart; as directed to a judicial exception (i.e. an abstract idea).
Addressing the claims under Step 2A, the claims are held to be directed to concepts similar to those found to be abstract, either as outlined in the 2014 lEG/July 2015 Update to Subject matter eligibility, or, as compared to certain decisions rendered by the courts. The claims describe the steps providing a community wagering game. The addition of the limitations that narrow the idea (trigger events and data related to trigger events) merely aide in the description of the abstract idea and therefore do not render the claims any less abstract.
This concept is considered a fundamental economic practice inasmuch as allowing users to utilize a wagering game (i.e., creating a contractual relationship, and providing features that are fundamental aspects of the economy) and is considered a foundational and basic principle in the realm of commerce (see July 2015 Update: Section III (A) and buySAFE v. Google, Inc. 765 F.3d 1350, 112 U.S.P.Q.2d 1093 (Fed. Cir. 2014)). Additional fundamental economic practices have also been discussed in precedential case law and closely parallel the currently claimed economic practice of providing a user with an offers and/or service. Examples include the concepts of price determination for saleable goods (OIP Technologies, Inc. v. Amazon.com, Inc. 788 F.3d 1359 (Fed. Cir. 2015) and Versata Development Group v. SAP America, Inc. 793 F.3d. 1306 (Fed. Cir. 2015)), rules/terms of the transaction (In re Smith 815 F.3d 816 (Fed. Cir. 2016)), and analyzing the financial instruments available to complete a transaction (Mortgage Grader, Inc. v. First Choice Loan Services Inc. 811 F.3d. (Fed. Cir. 2016)).
Additionally, this concept is considered a method of organizing human activity by providing a community aspect in the wagering game. Organizing human activity is used to describe concepts relating to interpersonal and intrapersonal activities, such as managing transactions between people and sales activities, advertising, marketing, pricing, resource management, and sales activities or behaviors (see July 2015 Update: Section III (B)). Several precedential cases have found concepts relating to advertising, marketing, pricing, and sales activities or behaviors abstract. One such example is the use of advertising as an exchange or currency (Ultramercial v. Hulu 772 F.3d 709, 112 U.S.P.Q.2d 1750 (Fed. Cir. 2014)). Additional precedential courts have found abstract examples of organizing human activity to include structuring a sales force or marketing company (in re Ferguson 558 F.3d 1359, 90 U.S.P.Q.2d 1035 (Fed. Cir. 2009)), automatic optimization of pricing in an ecommerce environment or pricing products in organization groups (OIP Technologies, Inc. v. Amazon.com, Inc. 788 F.3d 1359 (Fed. Cir. 2015) and Versata Development Group v. SAP America, Inc. 793 F.3d. 1306 (Fed. Cir. 2015)) and managing tasks and sales force activities and resources (Accenture Global Services, GmbH v. Guidewire Software 728 F.3d 1336 (Fed. Cir. 2013)).
Finally, the concept of identifying and transmitting gaming information to users further represents ‘an idea itself’ (see July 2015 Update: Section III (C)) inasmuch as it is related to processes of identifying, comparing, processing, and presenting data. Several precedential cases have found concepts relating to processes of identifying, comparing, processing, and presenting data to be mere ideas in themselves. One example includes selecting/identifying displayed data, manipulating the data through encoding and decoding processes, and generating new outputs/displays (Recognicorp, LLC, v. Nintendo Co., Ltd., Nintendo of America, Inc., No. 2:12-cv-01873-RAJ (2017)). The courts have addressed other computerized processes for of identifying, comparing, processing, and presenting data including data collecting and comparing known information (Classen Immunotherapies Inc. v. Biogen IDEC 659 F.3d 1057(Fed. Cir. 2011)), collecting information, analyzing it, and displaying certain results of the collection and analysis (Electric Power Group, LLC v. Alstom 830 F.3d 1350, 119 U.S.P.Q.2d 1739 (Fed. Cir. 2016))] extracting, organizing, storing and transmitting data (Content Extraction and Transmission LLC v. Wells Fargo Bank, National Ass'n. 776 F.3d 1343 (Fed. Cir. 2014)) and obtaining and comparing intangible data (Cybersource Corp v. Retail Decisions, Inc. 654 F.3d 1366, 99 U.S.P.Q.2d 1690 (Fed. Cir. 2011)) (see July 2015 Update: Section III (C)).
Therefore, while it is understood that the claims in the current application are not verbatim recitations of the guidelines or case law, the detailed analysis provided above shows how the current claim limitations at issue closely parallel the concepts provided by the guidelines and the precedential case law, and are therefore considered to be directed to an abstract idea (Step 2A: YES).
Step 2A, Prong Two: Claims 1, 10 & 12 does not contain additional elements that integrate the abstract idea exception into a practical application because the additional elements are mere instructions to apply the abstract idea exception; MPEP §2106.05(f). (2) generally link the judicial exception to a particular technological environment; MPEP § 2106.05(h); (3) are insignificant extra solution activity; MPEP § 2106.05(g). The additional elements are limited to generic computer components. The additional elements are: “a processor; and a memory device that stores a plurality of instructions”, “platform server” [a message data packet].
Therefore, the claim as a whole, looking at the additional elements individually and in combination, are no more than mere instructions to apply the exception using generic computer/computer components and is not a practical application. See MPEP §2106.05(f). The additional elements do not integrate the abstract idea exception into a practical application because they do not impose any meaningful limits on the abstract idea exception. Accordingly, Claims 1, 10 & 12 are directed to an abstract idea.
Under Step 2B, the examiner acknowledges the additional limitations (i.e. a processor, memories, server etc.). However, no element or combination of elements, as currently claimed, is sufficient to ensure the claims as a whole amounts to significantly more that the abstract idea itself. For example, the computer components generically claimed to enable the management of the game by performing the basic functions of: (i) receiving, processing, and storing data, and (ii) receiving or transmitting data over a network, e.g., using the Internet to gather data. The courts have recognized these functions to be well-understood, routine, and conventional functions when claimed in a merely generic manner. Particularly, In re TLI Communications LLC (Fed Cir, 2016) held that adding hardware that performs “‘well understood, routine, conventional activit[ies]’ previously known to the industry” will not make claims patent-eligible. As such, the recitation of the computer limitations in Claims amounts to mere instructions to implement the abstract idea on a computer.
These limitations however are used for data gathering and presentation and as such merely represents insignificant pre and post solution activity. Even assuming arguendo that the claims are not insignificant pre and post solution activities or mental activities, each of the functions performed by the machinery are well-understood, routine, and conventional (i.e., receiving and processing data, and receiving or transmitting data over a network, e.g., using the Internet to gather data (see July 2015 Update: Section IV)).
Additionally, these limitations are merely generic recitations of computers and networks performing basic functions and the claims amount to nothing more than implementing the abstract idea on a computer. The limitations taken as a whole amount to nothing more than implementing the concept of presenting a community wagering game with routine, conventional activity specified at a high level of generality in a particular technological environment. When viewed either as individual limitations or as an ordered combination, the claims as a whole do not add significantly more to the abstract idea of identifying and transmitting information to users.
Ultimately, the claimed machine(s) function solely as an obvious mechanism to achieve the claimed result, failing to impart a meaningful limit on the claim scope [see SiRF Tech., Inc. v. ITC (Fed. Cir. 2010)]. The claims at issue here do not rise to overriding the routine and conventional sequence of events ordinarily performed by the computer, nor do they set forth with any specificity the interactions of the machine itself. Conversely, the claims are only specific in how the computer is used to facilitate the abstract idea itself using routine and conventional operations of the generic machinery, and are silent as to any detail or property that would transform the otherwise generic machinery into a specialized or special purpose machine. Even when considered as an ordered combination, the computer components of applicant's method add nothing that is not already present when they are considered individually. Viewed as a whole, the claims simply convey the idea itself facilitated by generic computing components.
Thus, under Step 2B, 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 (Step 2B: NO).
Dependent claims when analyzed as a whole are held to be patent ineligible under 35 U.S.C. 101 because the additional recited limitations fail to establish that the claims are not directed to an abstract idea. The claims provide minimal technical structure or components for further consideration either individually or as ordered combinations with the independent claims. As such, additional recited limitations in the dependent claims only refine the identified abstract idea further. Further refinement of an abstract idea does not convert an abstract idea into something concrete.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1-20 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Nelson et al. (US Patent Pub. 20260171768; referred to hereinafter as Nelson).
The applied reference has a common assignee and joint inventors with the instant application. Based upon the earlier effectively filed date of the reference, it constitutes prior art under 35 U.S.C. 102(a)(2). This rejection under 35 U.S.C. 102(a)(2) might be overcome by: (1) a showing under 37 CFR 1.130(a) that the subject matter disclosed in the reference was obtained directly or indirectly from the inventor or a joint inventor of this application and is thus not prior art in accordance with 35 U.S.C. 102(b)(2)(A); (2) a showing under 37 CFR 1.130(b) of a prior public disclosure under 35 U.S.C. 102(b)(2)(B) if the same invention is not being claimed; or (3) a statement pursuant to 35 U.S.C. 102(b)(2)(C) establishing that, not later than the effective filing date of the claimed invention, the subject matter disclosed in the reference and the claimed invention were either owned by the same person or subject to an obligation of assignment to the same person or subject to a joint research agreement.
Claims 1, 10 & 12: Nelson disclose a live streaming platform server (abstract),
comprising: a processor, and a memory device that stores a plurality of instructions (figure 1), that, when executed by the processor following an occurrence of a community game triggering event (0021, triggered community game event), cause the processor to, during a first period of time occurring responsive to a receipt, from an electronic gaming machine, of first data associated with at least a first part of a play of a community game (0096), communicate, to a client device and at least partially based on the first data received from the electronic gaming machine, second data associated with a first portion of a live stream (0096), and during a second period of time occurring responsive to a receipt, from a personal gaming device operating with a remote gaming platform, of third data associated with at least a second part of the play of the community game, communicate, to the client device and at least partially based on the third data received from the personal gaming device, fourth data associated with a second portion of the live stream (0096-0099).
Claims 2 & 13: Nelson disclose wherein the second period of time occurs after the first period of time and the second part of the play of the community game occurs after the first part of the play of the community game (figures 4A-4B).
Claims 3 & 14: Nelson disclose wherein during the first period of time, the electronic gaming machine operates as a streaming device of the first part of the play of the community game (0095-0097).
Claims 4 & 15: Nelson disclose wherein during the first period of time, the first portion of the live stream comprises audio/video data of a user of the electronic gaming machine (0043-00044).
Claims 5 & 16: Nelson disclose wherein where in during the second period of time, the personal gaming device and an associated remote game server operate as a streaming device of the second part of the play of the community game (0096-0102).
Claims 6, 11 & 17: Nelson disclose wherein during the first period of time, the first portion of the live stream comprises audio/video data of a live host (0092-0096).
Claims 7 & 18: Nelson disclose wherein the electronic gaming machine is located in a gaming establishment and the live host is located remote from the gaming establishment (0109).
Claims 8 & 19: Nelson disclose wherein the memory device stores a plurality of further instructions that, when executed by the processor during a third period of time after an occurrence of a community game termination event, cause the processor to switch the live stream to another play of another community game (0099).
Claims 9 & 20: Nelson disclose wherein after the occurrence of the community game termination event and prior to the switch to the other play of the other community game, the live stream comprises audio/video data of a live host (0096-0099).
Examiner’s Note
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Nelson (20200357246) refers to systems and methods that provide real-time head-to-head sports wagering between players of gaming devices. Using a gaming device, a player initiates a wagering invitation message including an invitation to wager on an event associated with a competitive sporting contest. The invitation to wager defines an outcome associated with the event and an amount for the wager. The other player, from their own gaming device, and upon receiving information about the invitation to wager, can accept, decline, or propose a modification to the invitation to wager. The players can exchange communications between an interface of their gaming devices about potential wagers, existing wagers, or past wagers. Aspects of the present disclosure provide an enhanced social experience in head-to-head competitive sports wagering from a gaming device.
The referenced citations made in the rejection(s) above are intended to exemplify areas in the prior art document(s) in which the examiner believed are the most relevant to the claimed subject matter. However, it is incumbent upon the applicant to analyze the prior art document(s) in its/their entirety since other areas of the document(s) may be relied upon at a later time to substantiate examiner's rationale of record. A prior art reference must be considered in its entirety, i.e., as a whole, including portions that would lead away from the claimed invention. W.L. Gore & Associates, Inc. v. Garlock, Inc., 721 F.2d 1540, 220 USPQ 303 (Fed. Cir. 1983), cert. denied, 469 U.S. 851 (1984). However, "the prior art's mere disclosure of more than one alternative does not constitute a teaching away from any of these alternatives because such disclosure does not criticize, discredit, or otherwise discourage the solution claimed ...." In re Fulton, 391F.3d 1195, 1201,73 USPQ2d 1141, 1146 (Fed. Cir. 2004).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SUNIT PANDYA whose telephone number is (571)272-2823. The examiner can normally be reached M-F 9:30-6:30PM.
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/SUNIT PANDYA/Primary Examiner, Art Unit 3715
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