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 .
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 submission filed on 4/21/2026 has been entered.
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, 3-11, and 13-20 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, 3-11, and 13-20 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;
generating a virtual avatar of the user based on the age estimation and the extracted facial features; and
displaying the virtual avatar to the user through the display, wherein the virtual avatar represents the estimated age of the user.
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 3-10 and 13-20 further define the abstract idea (e.g., 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.
The features of generating a virtual avatar of the user based on the age estimation and extracted facial feature to display the virtual avatar in a way that represents the estimated age of the user may be viewed either as part of the abstract idea or as post-solution activity (discussed in Step 2B, below). To the extent that it is part of the abstract idea, it may be viewed as a mental activity that may be performed using pen and paper. In essence, this step looks at a subject user and extracts or analyzes facial features of the user and, combined with the analysis of the user’s age, creates a picture to represent the user that corresponds to the user’s actual face, age, and (in some claims) the style of the video game. This step is therefore an artistic portrayal of a human, comparable to the well-known art of portraiture. This artistic portrayal resembles the interface providing user display access of customized information, as in Intellectual Ventures I LLC v. Capital One Bank (Fed. Cir. 2015) and the recording, transmitting and administering digital images, as in TLI Communications LLC v. AV Automotive LLC (Fed. Cir. 2016).
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 Examiner notes that the claimed avatar feature discussed above may be viewed as post-solution activity because it does not relate to the central problem of determining the user’s age and restricting the user’s access to only age-appropriate content. Instead, the creation of the avatar is simply non-functional descriptive material showing an artistic rendering of the user.
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 4/21/2026 have been fully considered but they are not persuasive.
Applicant asserts that the instant claims do not encompass a mental process on pages 6-7 of the Remarks. Applicant’s argument essentially points to the computer-implemented portions of the claims and asserts that they are not mental activities (e.g., using a smartphone camera to capture images). The Examiner notes that these features are identified as additional elements of the claims, as opposed to an abstract idea per se.
Moreover, the October 2019 Update on eligibility explained that the mere presence of computer components to implement an abstract idea does not preclude the finding of an ineligible abstract idea. Specifically, the October 2019 Update emphasizes on page 8 that claims can recite a mental process even if they are claimed as being performed on a computer. Such situations are present if the concepts can be performed in the human mind but the claims simply perform them in a computer environment or using a computer as a tool to perform the concepts. As explained in the grounds of rejection, the features relating to extracting facial features from image data and estimating the age of a user based on those facial features may be performed mentally. The previous rejection noted that this process was performed traditionally by merchants who sold age-restricted products, such as alcohol or tobacco. Additionally, the step of comparing the age estimation to an age gate simply poses the question of whether a user’s age is over a given threshold, such as 18 or 21 years old, in the same way as a merchant would determine whether to sell an age-restricted product. As is also explained above, the process of generating a virtual avatar based on the determined age and facial features of the user is an artistic process that can be performed with the aid of pen and paper. These processes are claimed as being performed in a computer environment or using computers as a tool to perform the concepts. However, in compliance with the October 2019 memo, such computer implementation is not enough to demonstrate eligibility.
On pages 7-9, Applicant contends that the claims provide improvements to the functioning of the computer itself. Applicant asserts that the claims integrate camera hardware with machine learning to enable real-time age estimation without an external server. However, the claim language does not support this position. The claims do not require any real-time processing at all. Furthermore, dependent claims 8 and 18 expressly call for communicating image data with a server such that the server is operable to extract facial features and determine the age of the user. As such, the claims appear to be silent on, or in conflict with, Applicant’s stated position. Furthermore, while Applicant asserts that the claims provide improvements to the functioning of computers, Applicant fails to particularly point out what those improvements are. Instead, Applicant avers that one of ordinary skill in the art would be able to discern them from the specification. This is not persuasive based on the current record and the Examiner respectfully disagrees for the reasons given in the grounds of rejection above.
On pages 9-12, Applicant addresses the finding that the additional elements merely use computers as tools to implement the abstract idea. Applicant points to inquiries about whether the claim recites only the idea of a solution or outcome, whether the claim invokes computers as a tool, and the particularity of generality of the application of the judicial exception. At the outset, Applicant characterizes the entirety of the abstract idea as a technological solution to a technical problem. As demonstrated above, the abstract idea may be performed mentally. Therefore, it cannot be said that mental steps are concrete technological solutions to technical problems because such a proposition goes against relevant court precedents such as Alice. Moreover, the grounds of rejection explain that using a smartphone with a camera to determine a user’s age is well-understood, routine, and conventional in the art.
Furthermore, while Applicant asserts that the claimed smartphone is integral to the invention, the specification admits that this is one of a variety of computerized devices that may be used to carry out the invention, along with other conventional devices such as a “tablet, laptop, desktop, console, virtual reality (VR) headset, or other device.” Spec. ¶ 10. For this reason, the smartphone is not considered an integral part of the invention but rather one of many generic and conventional computer components that could be used to carry out the invention. While Applicant states that the system provides real-time authorization, the Examiner again notes that the claims do not require this feature. Even if they did, courts have found that real-time data analysis is not sufficient to save a claim from abstraction. See, e.g., Electric Power Group. The remainder of the argument merely asserts that the claims are narrow in nature. However, courts have repeatedly found that a narrow abstract idea is still an abstract idea.
On pages 12-13, Applicant asserts that the camera that obtains the image data is more than mere data gathering and provides essential biometric input required for the facial recognition process. However, as discussed above, the specification does not require a smartphone at all, and it places no particular restrictions on the type of camera used (e.g., the camera “may include a smartphone camera, laptop camera, tablet camera, web camera, and/or other camera types” at ¶ 12). As such, the camera does not limit the invention to any particular device.
Applicant addresses the Step 2B inquiry on pages 13-15 of the Remarks. The majority of the arguments are similar to those addressed hereinabove. In addition, Applicant asserts that the claims require a specific technological implementation where a machine learning model is trained on facial feature-to-age correlation data integrated with facial recognition processing and other claimed features.
As noted in the grounds of rejection above, 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. As noted in the grounds of rejection, the machine learning model provided by the claimed and disclosed invention is not an inventive type of machine learning. Rather, the invention here uses preexisting machine learning techniques applied to age determination, a process than can be performed mentally. Because the machine learning techniques are not novel, it cannot be said that they demonstrate improved computer capabilities or improvements in a technology or technical field.
For the forgoing reasons, the claimed invention fails to demonstrate patent eligibility.
Conclusion
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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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, David Lewis can be reached at 571-272-7673. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/WILLIAM H MCCULLOCH JR/Primary Examiner, Art Unit 3715
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