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 .
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 they are directed to non-statutory subject matter.
The claimed invention is directed to non-statutory subject matter because the claim(s) as a whole, considering all claim elements both individually and in combination, do not amount to significantly more than an abstract idea.
A patent may be obtained for “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.” 35 U.S.C. § 101. The Supreme Court has held that this provision contains an important implicit exception: laws of nature, natural phenomena, and abstract ideas are not patentable. Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 134 S. Ct. 2347, 2354 (2014); Gottschalk v. Benson, 409 U.S. 63, 67 (1972) (“Phenomena of nature, though just discovered, mental processes, and abstract intellectual concepts are not patentable, as they are the basic tools of scientific and technological work.”). Notwithstanding that a law of nature or an abstract idea, by itself, is not patentable, the application of these concepts may be deserving of patent protection. Mayo Collaborative Servs. v. Prometheus Labs., Inc., 132 S. Ct. 1289, 1293–94 (2012). In Mayo, the Court stated that “to transform an unpatentable law of nature into a patent eligible application of such a law, one must do more than simply state the law of nature while adding the words ‘apply it.’” Mayo, 132 S. Ct. at 1294 (citation omitted).
In Alice, the Supreme Court reaffirmed the framework set forth previously in Mayo “for distinguishing patents that claim laws of nature, natural phenomena, and abstract ideas from those that claim patent-eligible applications of these concepts.” Alice, 134 S. Ct. at 2355. The first step in the analysis is to “determine whether the claims at issue are directed to one of those patent-ineligible concepts.” Id. If the claims are directed to a patent-ineligible concept, then the second step in the analysis is to consider the elements of the claims “individually and ‘as an ordered combination”’ to determine whether there are additional elements that “‘transform the nature of the claim’ into a patent-eligible application.” Id. (quoting Mayo, 132 S. Ct. at 1298, 1297). In other words, the second step is to “search for an ‘inventive concept’‒ i.e., an element or combination of elements that is ‘sufficient to ensure that the patent in practice amounts to significantly more than a patent upon the [ineligible concept] itself.’” Id. (brackets in original) (quoting Mayo, 132 S. Ct. at 1294). The prohibition against patenting an abstract idea “cannot be circumvented by attempting to limit the use of the formula to a particular technological environment or adding insignificant post-solution activity.” Bilski v. Kappos, 561 U.S. 593, 610–11 (2010) (citation and internal quotation marks omitted). The Court in Alice noted that “‘[s]imply appending conventional steps, specified at a high level of generality,’ was not ‘enough’ [in Mayo] to supply an ‘inventive concept.’” Alice, 134 S. Ct. at 2357 (quoting Mayo, 132 S. Ct. at 1300, 1297, 1294).
As summarized in the 2014 Interim Guidance on Patent Subject Matter Eligibility, examiners must perform a Two-Part Analysis for Judicial Exceptions.
In step 1, it must be determined whether the invention falls in one of the four statutory categories of invention. Claims 1-20 are directed to systems and methods, which are statutory categories of invention.
In step 2A, it must be determined whether the claimed invention is ‘directed to’ a judicially recognized exception. According to the specification, the invention relates to estimating a user’s age based on the user’s facial features, and allowing the user access to a video game if the estimated age is within an age range as defined by an age gate. Spec. ¶¶ 5-6. Exemplary claim 11 recites the following (with emphasis):
11. A computer-implemented method of interactive platform access authorization using a smartphone, comprising:
receiving, at a processor of the smartphone, image data of a user from a camera in communication with the processor;
extracting, by the processor of the smartphone, facial features from the image data through a facial recognition process;
determining, by the processor of the smartphone, an age estimation of the user based on the facial features through a machine learning model, wherein the machine learning model is trained on training data correlating facial features to age estimations;
comparing, by the processor of the smartphone, the age estimation to an age gate; [and]
authorizing the user to access an interactive platform based on the comparison.
The abstract idea is defined by the underlined portions of the exemplary claim, with substantially similar features found in independent claim 1. The claims are directed in pertinent part to viewing a picture of a user’s face, estimating the user’s age, and allowing the player to access a platform (e.g., a gaming platform) if the estimated age satisfies some criteria defined by the “age gate.” Dependent claims 2-10 and 12-20 further define the abstract idea (e.g., creating a virtual avatar of the user based on estimated age specific to a video game, defining the age gate according to ESRB rating information, authorizing the user based on location, authorizing access to in-game features based on age, using two-factor authentication, etc.) or relate to implementation of the abstract idea (e.g., providing an API). The abstract idea may be viewed, for example as:
Real-time monitoring of an electric power grid, as in Electric Power Group, LLC v. Alstom (Fed. Cir. 2016);
Device profiles for use in a digital image processing system, as in Digitech Image Techs., LLC v. Electronics for Imaging, Inc. (Fed. Cir. 2014);
An interface providing user display access of customized information, as in Intellectual Ventures I LLC v. Capital One Bank (Fed. Cir. 2015);
Recording, transmitting and administering digital images, as in TLI Communications LLC v. AV Automotive LLC (Fed. Cir. 2016); and
A method of organizing human activities, as discussed in Alice and Bilski.
The claimed abstract idea reproduced above is effectively an algorithm or set of instructions directed to deciding whether a user is old enough to access certain computer features. Such steps amount to observation, judgment, and collection of information that could be carried out mentally or with the use of pen and paper. The claims also include carrying out game actions relating to avatars used by human players, which suggests that the invention is directed to organizing human activities as discussed in Alice and Bilski.
In Electric Power Group, the Federal Circuit found that merely selecting information, by content or source, for collection, analysis, and display does nothing significant to differentiate a process from ordinary mental processes, whose implicit exclusion from § 101 undergirds the information-based category of abstract ideas. The claims at issue were directed to gathering information to identify problems in an electric grid and to output that information to a user. The court found that such steps constitute an abstract idea based upon several previous court decisions, including Microsoft Corp. v. AT&T Corp., OIP Techs., Inc. v. Amazon.com, Inc., Content Extraction &Transmission LLC v. Wells Fargo Bank, Digitech Image Techs. LLC v. Elecs. For Imaging, Inc., CyberSource Corp. v. Retail Decisions, Inc. The Court also relied upon TLI Communications, Digitech, Bancorp Servs. LLC v. Sun Life, among others, to state that analyzing information by steps people go through in their minds are essentially mental processes within the abstract-idea category.
The abstract idea in the present case is similar in that it gathers information about users and estimates their age to decide if it is appropriate to allow access to certain computer features. There is no asserted inventive concept in the improvement of computers as tools, but instead upon certain independently abstract ideas that use computers as tools. Such a finding suggests that the decisions in Enfish v. Microsoft, BASCOM Global Internet v. AT&T Mobility LLC, and McRO, Inc. v. Bandai Namco Games America do not apply here.
A similar conclusion is reached regarding the recitations of a smartphone and a machine learning model trained on facial features. Nothing in the claimed or disclosed invention suggests the use of any particular smartphone, nor is there any indication that the processor or other feature inherent to the smartphone is technologically improved. Similarly, while the claims recite the use of a machine model, that model is merely a piece of software and is not presented as a novel or improved machine model, but rather an off-the-shelf machine model used in its ordinary capacity and applied in a given technological environment (i.e., age determination). Based on this analysis, both the smartphone and machine model limitations represent computer technologies that are used as tools to carry out the abstract ideas.
Therefore, under Step 2A prong 2, the claims are directed to the judicially recognized exception of an abstract idea.
Step 2B requires that if the claim encompasses a judicially recognized exception, it must be determined whether the claimed invention recites additional elements that amount to significantly more than the judicial exception. The claims encompass the following additional element(s) or combination of elements in the claim(s) other than the abstract idea per se: a processor, a camera, a smartphone, a trained machine model, an API, a server, and a two-factor authentication system. Viewed as a whole, these additional claim element(s) do not provide meaningful limitation(s) to transform the abstract idea into a patent eligible application of the abstract idea such that the claim(s) amounts to significantly more than the abstract idea itself. These features do not meaningfully limit the abstract idea because they encompass generic computer implementation (e.g., a computing device or server) as well as other well-understood, routine and conventional devices (e.g., smartphone, camera, etc.) that also amount to extra-solution activity.
The disclosure admits that the claimed interactive platform may be “any digital environment in which two or more users can interact,” such as video games, social media, etc. executing on a variety of known computer devices, such as smartphones, tablets, laptops, desktops, consoles, VR headsets, PlayStation, Xbox, or other devices. Spec. ¶¶ 10-11. The disclosure also admits that the camera may include a smartphone camera, laptop camera, tablet camera, web camera, and/or other camera type. Spec. ¶ 12. The disclosure only describes the server in generic and functional terms. See, e.g., Spec. ¶¶ 35-44. This indicates that generic and conventional components that are well known in the art may be used to carry out the abstract idea. The claims do not purport to improve on computers or cameras.
Moreover, the use of smartphones to play games and determine ages of game players was well-understood, routine, and conventional in the art before the effective date. For instance, US 2015/0057071 to Paquet teaches that age-based gameplay may be achieved through face perception by way of capturing an image of at least one player. Paquet, abstract. The reference also teaches that the gaming device may be an Apple iPhoneTM comprising a camera to record an image of the player. Id. at ¶ 15. The iPhone was (and is) a well-known and conventional smartphone.
Furthermore, the use of API’s was well-understood, routine, and conventional in the art before the effective date. For instance, US 2019/0156505 to Ter Beest, III et al. describes a video processing technique for 2D target location identification that provides a way of analyzing objects recorded by one or more video cameras. See, e.g., ¶¶ 23 and 28. Ter Beest further recognizes that “information may be provided to third parties using an application programming interface (API), through the use of a data feed, through the use of a shared database, or other conventional techniques.” Id. at ¶ 41.
Each of the above elements are construed as extra-solution activity because each one merely implements the abstract idea without providing any substantive limitation on the abstract idea itself. A claim is not meaningfully limited if it contains only insignificant extra-solution activity, which includes any “well-understood, routine, conventional activity, previously engaged in by those in the field” as well as “steps that must be taken in order to apply” the abstract idea. See Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 716 (Fed. Cir. 2014).
Lastly, the Federal Circuit recently determined that the use of machine learning models is not necessarily sufficient to impart eligibility to a claimed abstract idea. See Recentive Analytics, Inc. v. Fox Corp., 134 F.4th 1205 (Fed. Cir. 2025). The claims at issue employed machine learning, which the court described as a type of software. The court stated that it must be determined whether the claims focus on the specific asserted improvement in computer capabilities, or instead on a process that qualifies as an abstract idea for which computers are invoked merely as a tool. Recentive, 134 F.4th at 1212. The patent specifications described the machine learning models as conventional because they required “any suitable machine learning technology…such as, for example: a gradient boosted random forest, a regression, a neural network, a decision tree, a support vector machine, a Bayesian network, [or] other type of technique.” Id. The instant specification is even less particular about the type of machine learning model, requiring only that “[f]acial recognition processes 116 may include, any algorithm and/or machine learning model that may be capable of detecting human faces within an image and/or video.” Spec. ¶ 13. Furthermore, the Recentive court determined that training of the machine models does not represent a technological improvement because “[i]terative training using selected training material and dynamic adjustments based on real-time changes are incident to the very nature of machine learning.” Recentive, 134 F.4th at 1212. By the same logic, the fact that the claimed machine model is trained on training data correlating facial features to age estimations does not represent a technological improvement because such iterative training is merely a required function of machine learning. Finally, the Recentive court determined that “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.” Id. at 1214. Because the instant claims similarly relate to a process previously undertaken by humans, i.e., determining a person’s age, the instant claims are not rendered eligible by the use of existing machine learning technology to perform age determination.
The Supreme Court in Alice found that claim recitations of a “data processing system” with a “communications controller” and “data storage unit” are purely functional and generic. The Court further stated, “Put another way, the system claims are no different from the method claims in substance...The method claims recite the abstract idea implemented on a generic computer; the system claims recite a handful of generic computer components configured to implement the same idea.” The Court concluded that “[b]ecause petitioner's system and media claims add nothing of substance to the underlying abstract idea, we hold that they too are patent ineligible under §101.” The same conclusion is reached with respect to the claims of the instant invention. Therefore, the claim(s) are rejected under 35 U.S.C. 101 as being directed to non-statutory subject matter. See Alice Corporation Pty. Ltd. v. CLS Bank International, et al., 573 U.S. 208 (2014).
Response to Arguments
Applicant's arguments filed 10/3/2025 have been fully considered but they are not persuasive and/or are made moot by the new grounds of rejection.
The Examiner notes that all points raised by the Remarks are fully answered by the grounds of rejection above. The following is provided to aid understanding in how the Remarks are answered.
Applicant contends that the instant claims solve a specific technological problem that cannot be performed mentally. Remarks 6. The Examiner notes that humans are capable of looking at a picture of another human and estimating the age of that human. This process has been performed for decades by, for example, convenience store personnel looking at a photo ID, or even the person themselves, to determine if a person is over 18 or 21, in order to allow purchase of tobacco or alcohol. The Remarks emphasize making age estimations with “mathematical precision,” but neither the claims nor the specification provide any such precision. As such, the claimed invention encompasses at least one abstract idea that may be performed mentally.
As noted in the grounds of rejection, the record shows that smartphones are well-understood, routine, and conventional in the art of both video gaming and determination of a user’s age. As such, the arguments relating to the smartphone device representing any technical improvement are not persuasive. See, e.g., Remarks 6-9. Similarly, the grounds of rejection explain how the Recentive court determined that the use of machine learning in processes typically performed by humans does not necessarily confer eligibility. As such, the arguments relating to machine learning as claimed representing any technical improvement are not persuasive. See, e.g., Remarks 8-11.
The Examiner has considered Applicant’s discussion of BASCOM, but finds that this precedent offers little that can be applied to the instant application. Remarks 10-11. It is true that BASCOM aimed to filter internet traffic in a way that would prevent certain content from being shown on controlled computer environments, such as libraries. This might ostensibly achieve a similar goal of censoring of inappropriate content. However, the technological basis of BASCOM was at the Internet Service Provider (ISP) level, and did not use any machine learning technology to achieve its goal. By contrast, the instant invention is almost entirely based on machine learning and, for reasons discussed in the grounds of rejection, Recentive offers a more direct parallel to the facts of this application.
Applicant’s discussion of McRO is similarly unconvincing. Remarks 11. While the instant invention uses computers to analyze a person’s face, the McRO patents used computers to generate faces of computer characters. This is almost the exact opposite of the instant claims because McRO creates artificial faces rather than analyzing real ones. For this reason, McRO is inapposite.
The Examiner has considered the remaining arguments but finds them unconvincing based on the new grounds of rejection and discussion herein above. For the forgoing reasons, the instant invention fails to demonstrate patent eligibility.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to WILLIAM H MCCULLOCH whose telephone number is (571)272-2818. The examiner can normally be reached M-F 9:30-5:30.
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/WILLIAM H MCCULLOCH JR/Primary Examiner, Art Unit 3715