DETAILED ACTION
This communication is a Non-Final Rejection Office Action in response to the 1/2/2025 filling of Application 19/007,177. Claims 1-2 are now presented.
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 § 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 1and 2 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 applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claims 1 and 2 rejected as failing to define the invention in the manner required by 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph.
The claim(s) are narrative in form and replete with indefinite language. The structure which goes to make up the device must be clearly and positively specified. The structure must be organized and correlated in such a manner as to present a complete operative device. The claim(s) must be in one sentence form only.
In the instant case claim 1 contains two sentences.
Claims 1 and 2 recites several instances of "e.g." and "such as" that MPEP 2173.05(d) indicates is likely to be indefinite.
Examples of claim language which have been held to be indefinite because the intended scope of the claim was unclear are:
(A) "R is halogen, for example, chlorine";
(B) "material such as rock wool or asbestos" Ex parte Hall, 83 USPQ 38 (Bd. App. 1949);
(C) "lighter hydrocarbons, such, for example, as the vapors or gas produced" Ex parte Hasche, 86 USPQ 481 (Bd. App. 1949);
(D) "normal operating conditions such as while in the container of a proportioner" Ex parte Steigerwald, 131 USPQ 74 (Bd. App. 1961); and
(E) "coke, brick, or like material". Ex parte Caldwell, 1906 C.D. 58 (Comm’r Pat. 1906).
The above examples of claim language which have been held to be indefinite are fact specific and should not be applied as per se rules. See MPEP § 2173.02 for guidance regarding when it is appropriate to make a rejection under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph.
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, 2 are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter.
When considering subject matter eligibility under 35 U.S.C. 101, in step 1 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, in step 2A prong 1 it must then be determined whether the claim is recite a judicial exception (i.e., law of nature, natural phenomenon, and abstract idea). If the claim recites a judicial exception, under step 2A prong 2 it must additionally be determined whether the recites additional elements that integrate the judicial exception into a practical application. If a claim does not integrate the Abstract idea into a practical application, under step 2B it must then be determined if the claim provides an inventive concept.
In the instant case, Claim 1 is directed toward a system for predicting consumer and market behavior for an industry. Claim 2 is directed toward a method for predicting consumer and market behavior for an industry. As such, each of the Claims is directed to one of the four statutory categories of invention.
MPEP 2106.04 II. A. explains that in step 2A prong 1 Examiners are to determine whether a claim recites a judicial exception. MPEP 2106.04(a) explains that:
To facilitate examination, the Office has set forth an approach to identifying abstract ideas that distills the relevant case law into enumerated groupings of abstract ideas. The enumerated groupings are firmly rooted in Supreme Court precedent as well as Federal Circuit decisions interpreting that precedent, as is explained in MPEP § 2106.04(a)(2). This approach represents a shift from the former case-comparison approach that required examiners to rely on individual judicial cases when determining whether a claim recites an abstract idea. By grouping the abstract ideas, the examiners’ focus has been shifted from relying on individual cases to generally applying the wide body of case law spanning all technologies and claim types.
The enumerated groupings of abstract ideas are defined as:
1) Mathematical concepts – mathematical relationships, mathematical formulas or equations, mathematical calculations (see MPEP § 2106.04(a)(2), subsection I);
2) Certain methods of organizing human activity – fundamental economic principles or practices (including hedging, insurance, mitigating risk); commercial or legal interactions (including agreements in the form of contracts; legal obligations; advertising, marketing or sales activities or behaviors; business relations); managing personal behavior or relationships or interactions between people (including social activities, teaching, and following rules or instructions) (see MPEP § 2106.04(a)(2), subsection II); and
3) Mental processes – concepts performed in the human mind (including an observation, evaluation, judgment, opinion) (see MPEP § 2106.04(a)(2), subsection III).
As per step 2A prong 1 of the eligibility analysis, claim 1 recites the abstract idea of predicting consumer and market behavior for an industry which falls into the abstract idea categories of certain methods of organizing human activity and mental processes. The elements of Claim 1 that represent the Abstract idea include:
The limitations of Claim 1 that represent the Abstract idea include:
A system for predicting consumer and market behavior for an industry e.g., with a particular focus on uncovering deep insights at scale, the system comprising:
performing;
provide time series models of topic evolution, such as derive predictors of interest via interrogation of dataset, estimate velocity trends of topics/segments using ensemble modeling, or verify model accuracy via holdout sample;
NOTE: The limitation in the claims are recited in the alternative and as such, the Examiner has only evaluated 1 limitation for compliance with 35 U.S.C. 101.
MPEP 2106.04(a)(2) II. states:
The phrase "methods of organizing human activity" is used to describe concepts relating to:
fundamental economic principles or practices (including hedging, insurance, mitigating risk);
commercial or legal interactions (including agreements in the form of contracts, legal obligations, advertising, marketing or sales activities or behaviors, and business relations); and
managing personal behavior or relationships or interactions between people, (including social activities, teaching, and following rules or instructions).
The Supreme Court has identified a number of concepts falling within the "certain methods of organizing human activity" grouping as abstract ideas. In particular, in Alice, the Court concluded that the use of a third party to mediate settlement risk is a ‘‘fundamental economic practice’’ and thus an abstract idea. 573 U.S. at 219–20, 110 USPQ2d at 1982. In addition, the Court in Alice described the concept of risk hedging identified as an abstract idea in Bilski as ‘‘a method of organizing human activity’’. Id. Previously, in Bilski, the Court concluded that hedging is a ‘‘fundamental economic practice’’ and therefore an abstract idea. 561 U.S. at 611–612, 95 USPQ2d at 1010.
The limitations in the instant claims are recited in the alternative and as such only one of the recited limitations is required. The limitation of providing time series models of topic evolution, such as derive predictors of interest via interrogation of dataset, estimate velocity trends of topics/segments using ensemble modeling, or verify model accuracy via holdout sample is directed to sales and marketing activities which is an abstract method of organizing human activity.
MPEP 2106.04(a)(2) states:
The courts consider a mental process (thinking) that "can be performed in the human mind, or by a human using a pen and paper" to be an abstract idea. CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1372, 99 USPQ2d 1690, 1695 (Fed. Cir. 2011). As the Federal Circuit explained, "methods which can be performed mentally, or which are the equivalent of human mental work, are unpatentable abstract ideas the ‘basic tools of scientific and technological work’ that are open to all.’" 654 F.3d at 1371, 99 USPQ2d at 1694 (citing Gottschalk v. Benson, 409 U.S. 63, 175 USPQ 673 (1972)). See also Mayo Collaborative Servs. v. Prometheus Labs. Inc., 566 U.S. 66, 71, 101 USPQ2d 1961, 1965 (2012) ("‘[M]ental processes[] and abstract intellectual concepts are not patentable, as they are the basic tools of scientific and technological work’" (quoting Benson, 409 U.S. at 67, 175 USPQ at 675)); Parker v. Flook, 437 U.S. 584, 589, 198 USPQ 193, 197 (1978) (same).
Accordingly, the "mental processes" abstract idea grouping is defined as concepts performed in the human mind, and examples of mental processes include observations, evaluations, judgments, and opinions
The limitations in the instant claims are recited in the alternative and as such only one of the recited limitations is required. The limitation of providing time series models of topic evolution, such as derive predictors of interest via interrogation of dataset, estimate velocity trends of topics/segments using ensemble modeling, or verify model accuracy via holdout sample is drawn to observation and evaluation that can be performed mentally of with a human using a pen and paper.
Under step 2A prong 2 the examiner must then determine if the recited abstract idea is integrated into a practical application. MPEP 2106.04 states:
Limitations the courts have found indicative that an additional element (or combination of elements) may have integrated the exception into a practical application include:
• An improvement in the functioning of a computer, or an improvement to other technology or technical field, as discussed in MPEP §§ 2106.04(d)(1) and 2106.05(a);
• Applying or using a judicial exception to effect a particular treatment or prophylaxis for a disease or medical condition, as discussed in MPEP § 2106.04(d)(2);
• Implementing a judicial exception with, or using a judicial exception in conjunction with, a particular machine or manufacture that is integral to the claim, as discussed in MPEP § 2106.05(b);
• Effecting a transformation or reduction of a particular article to a different state or thing, as discussed in MPEP § 2106.05(c); and
• Applying or using the judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment, such that the claim as a whole is more than a drafting effort designed to monopolize the exception, as discussed in MPEP § 2106.05(e)
The courts have also identified limitations that did not integrate a judicial exception into a practical application:
• Merely reciting the words "apply it" (or an equivalent) with the judicial exception, or merely including instructions to implement an abstract idea on a computer, or merely using a computer as a tool to perform an abstract idea, as discussed in MPEP § 2106.05(f);
• Adding insignificant extra-solution activity to the judicial exception, as discussed in MPEP § 2106.05(g); and
• Generally linking the use of a judicial exception to a particular technological environment or field of use, as discussed in MPEP § 2106.05(h).
In the instant case, this judicial exception is not integrated into a practical application. In particular, Claim 1 recites the additional elements of:
one or more research servers configured to access one or more social networks and one or more data sources and to perform 1 or more of the recited limitation
However, the research servers are recited at a high-level of generality (i.e., as a generic processor performing a generic computer functions) such that it amounts no more than mere instructions to apply the exception using a generic computer component. Further MPEP 2105.05(g) explains that data gathering and data output can be considered pre-solution activity and post-solution activity. See MPEP 2106.05(g) that states:
An example of pre-solution activity is a step of gathering data for use in a claimed process, e.g., a step of obtaining information about credit card transactions, which is recited as part of a claimed process of analyzing and manipulating the gathered information by a series of steps in order to detect whether the transactions were fraudulent. An example of post-solution activity is an element that is not integrated into the claim as a whole, e.g., a printer that is used to output a report of fraudulent transactions, which is recited in a claim to a computer programmed to analyze and manipulate information about credit card transactions in order to detect whether the transactions were fraudulent.
In the instant case, the accessing one or more social networks and one or more data sources incidental to the primary process in a similar way that obtaining information about credit card transactions to be analyzed was incidental to the primary process explained above.
Viewing the generic data gathering in combination with the generic server does not add more than when viewing the elements individually. Accordingly, the additional elements do not integrate the abstract idea into a practical application because it does not impose any meaningful limits on practicing the abstract idea.
In step 2B, the examiner must be determine whether the claim adds a specific limitation other than what is well-understood, routine, conventional activity in the field - see MPEP 2106.05(d). As discussed with respect to Step 2A Prong Two, the server recited in the claim amounts to no more than mere instructions to apply the exception using a generic computer component. The same analysis applies here in 2B, i.e., mere instructions to apply an exception on a generic computer cannot integrate a judicial exception into a practical application at Step 2A or provide an inventive concept in Step 2B.
MPEP 2106.05(d) states receiving or transmitting data over a network, e.g., using the Internet to gather data is conventional when claimed generically (see 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)). As such, the broadly claimed accessing of data is considered well-known and conventional as established by the MPEP and relevant case law.
Viewing the generic data gathering in combination with the generic server does not add more than when viewing the elements individually. Accordingly, the additional elements do not provide an inventive concept.
The analysis above applies to all statutory categories of invention. The presentment of claim 1 otherwise styled as a method, computer program product or system, for example, would be subject to the same analysis. As such, claim 2 is also rejected.
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)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(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.
Claim(s) 1 and 2 is/are rejected under 35 U.S.C. 102(a)(1) and (a)(2) as being anticipated by Yates US 2023/0306345 A1.
NOTE: The limitations in the claims are recited in the alternative and as such, the Examiner is only required to examine one limitation for compliance with 35 U.S.C. 102/103.
As per Claim 1 Yates teaches A system for predicting consumer and market behavior for an industry e.g., with a particular focus on uncovering deep insights at scale, the system comprising:
one or more research servers configured to access one or more social networks and one or more data sources, and further configured to perform one or more of: Yates Abstract teaches An artificial intelligence system configured to monitor, analyze, and identify trends in social media feeds in real-time, near real-time, or on a batch basis. The system identifies trends and anomalies in trends which may affect the financial or other performance of a company. The system finds likely causes for shifts and the probable result if the shift is not countered. The system includes novel algorithms for generating more accurate analysis and insights into the data. Further para. 32 teaches FIG. 2 is simplified block diagram illustrating an AI system using scalable, cloud-based architecture and big data machine-learning with a method, described herein according to an embodiment, that scans social media data, transforms data into information, and transforms information into insights. FIG. 2 is based upon a specific embodiment using exemplary devices, servers, and/or software components that operate to perform various methodologies in accordance with the described embodiment. One skilled in the art would appreciate that the devices, servers, and/or software components may be combined or separated for a given embodiment and may be performed by a greater or fewer number of components. The claims only require one of the subsequent limitations to be met by the prior art.
database curation, such as create custom queries, populate database from various content sources, or validate database structure, and/or incorporate proprietary methods for processing data from unique data sources such as X (formerly known as twitter) and Reddit, such processing ensuring insights are maintained while facilitating analysis of the content;
ensure data hygiene e.g., with generative Al, such as removing irrelevant content, editing for non-text content, or deduplicating data and hold aside duplicate records; Yates para. 21 teaches Data integration involves data cleansing that includes de-duplication, incomplete data management, attribute standardization, and changing the data structures (e.g., into an OLAP model). Integration facilitates easy querying of data. For example, transforming 280 characters tweets®, forums, Tik Tok® video, or other social signals into processible, meaningful data. The integrated data may then be analyzed to determine what the data is referencing (e.g., person, place, thing) (named entity recognition or NER); what about that entity is being discussed (topic); and whether the reference is positive, negative, or neutral (sentiment analysis). The system then analyzes to what extent the social signal is infecting a broader community (social network analysis).
establish data hierarchy, such as leverage transformer based LLMs to add structure to database, utilize LLMs to create topic names, or enrich data with content generated by LLMs, which may comprise e.g., the inclusion of proprietary routines to the output of topic modeling results to ensure that the results are not skewed due to an inappropriate distribution of topics by size, and/or overly large topics are decomposed into smaller topics while unduly small topics are merged with other like topics to ensure adequate sample size, thereby enhancing the usability of the topic landscape created by the approach and ensures that the results are balanced and representative of the broader dataset;
provide time series models of topic evolution, such as derive predictors of interest via interrogation of dataset, estimate velocity trends of topics/segments using ensemble modeling, or verify model accuracy via holdout sample;
provide enhanced data analysis, e.g., with generative Al, such as principle component analysis to identify strategic themes, WHO audience profile, or identify key drivers of interest; and/or generative Al tools can also be used to augment topics via the addition of key descriptors which add unique insight into the makeup of the topic; and/or
generative Al tools score each topic with quantitative measures aimed at further profiling our topics, this added quantitative context to the collection of topics allows for additional analysis and sensemaking efforts in our approach.
populate a user dashboard, such as generating a unique "Baseball card" summary for each topic, create "Top trends" report, or enable user search function, e.g. by use of generative Al tools to create automated summaries for users which are of very high quality, the unique nature of Generative Al allowing for the creation of custom tailored analyses for our topics in an automated fashion which greatly enhances the value of our proposition;
craft one or more narratives for a client presentation, such as based on senior level consultant defined executive summary of findings, describe key trends for client to monitor, or prepare for in-person client presentation; and
provide ongoing dashboard refreshes augmented by Generative Al, such as provide client with ongoing live updates of trend development via software deliverable, the addition of Generative Al to customer dashboards allowing users to review engaging text-based summaries which greatly resemble human authorship as compared to simply viewing data and graphs without needed context and commentary.
Claim 2 recites similar limitation to claim 1 and is rejected for similar reasons.
Conclusion
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/DEIRDRE D HATCHER/Primary Examiner, Art Unit 3625
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