Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
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 1-15 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. Claims 1-15 recite an abstract idea of performing a mental process. The claim limitations are not indicative of integration into a practical application and the claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception as discussed below.
Step 1 of the 2019 Revised Patent Subject Matter
More specifically, regarding Step 1, of the 2019 Revised Patent Subject Matter Eligibility Guidance, the claims are drawn to at least one of the four statutory categories of invention (i.e. process, machine, manufacture, or composition).
Step 2a1 of the 2019 Revised Patent Subject Matter Eligibility Guidance
Next, the claims are analyzed to determine whether it is directed to a judicial exception.
Claims 1-10 recite: a device, comprising:
a processing system including a processor; and a memory that stores executable instructions that, when executed by the processing system, facilitate performance of operations, the operations comprising:
initiating a social network including a plurality of members of the social network and a plurality of computer devices for operating gaming programs;
receiving, from the plurality of computer devices, hardware statistics associated with a plurality of gamers that play the gaming programs and performance factors, wherein the receiving hardware statistics comprises:
receiving stimulus signals generated by one or more gaming accessory devices and substituted stimulations based on the stimulus signals, and processing the stimulus signals and the substituted stimulations to generate the hardware statistics;
generating a plurality of hardware profiles, each respective hardware profile of the plurality of hardware profiles being associated with a respective gamer of the plurality of gamers, wherein the generating the plurality of hardware profiles is based on the hardware statistics and the performance factors; and
presenting a hardware profile that is associated with the respective gamer of the plurality of gamers to members of the social network.
Claims 11-15 recite: A non-transitory machine-readable medium, comprising executable instructions that, when executed by a processing system including a processor, facilitate performance of operations, the operations comprising:
initiating a social network including a plurality of members and a plurality of computer devices for operating gaming programs;
receiving, from the plurality of computer devices, a plurality of hardware statistics associated with a plurality of gamers using the gaming programs, including receiving stimulus signals generated by gamer computer devices, substituted stimulations corresponding to the stimulus signals, a plurality of gaming results, and a plurality of performance factors;
generating a plurality of hardware profiles, each hardware profile being associated with a gamer of the plurality of gamers, wherein the hardware profiles are based on combinations of hardware statistics and performance factors;
presenting an interface to a member of the social network, wherein the interface is configured to identify performance criteria for selected members of the plurality of gamers; and
presenting information about the hardware statistics to the members of the plurality of members of the social network.
The underlined limitations recite an abstract idea of performing a mental process.
Step 2a2 of the 2019 Revised Patent Subject Matter Eligibility Guidance
The second prong of step 2a is the consideration of whether the claim recites additional elements that are indicative of integration into a practical application.
An additional element or combination of additional elements that are indicative of integrating the abstract idea into a practical application include:
-Improvements to the functioning of a computer, or to any other technology or technical field - see MPEP 2106.05(a)
-Applying or using a judicial exception to effect a particular treatment or prophylaxis for a disease or medical condition – see Vanda Memo
-Applying the judicial exception with, or by use of, a particular machine - see MPEP 2106.05(b)
-Effecting a transformation or reduction of a particular article to a different state or thing - see MPEP 2106.05(c)
-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 - see MPEP 2106.05(e) and Vanda Memo
Additional element or combination of additional elements that are not indicative of integration of the abstract idea into a practical application include:
-Adding the words “apply it” (or an equivalent) with the judicial exception, or mere instructions to implement an abstract idea on a computer, or merely uses a computer as a tool to perform an abstract idea - see MPEP 2106.05(f)
-Adding insignificant extra-solution activity to the judicial exception - see MPEP 2106.05(g)
-Generally linking the use of the judicial exception to a particular technological environment or field of use – see MPEP 2106.05(h)
Claims 1-15 do not apply a judicial exception to effect a particular treatment, and do not transform or reduce a particular article to a different state or thing.
Claims 1-15 are not directed to an improvement to a function of a computer. There is no improvement to a technical field. In addition, the claims do not apply the judicial exception with, or by use of a particular machine. The claims do not apply or use the judicial exception in a meaningful way.
The additional elements of: receiving, from the plurality of computer devices, hardware statistics amounts to mere data gathering, which is a form of insignificant extra-solution activity.
The “processing system ” is recited at a high level of generality and therefore acts as a generic computer to perform the abstract idea.
For the reasons discussed above, the additional elements identified above considered alone and in combination fail to integrate the abstract idea into a practical application.
Step 2b of the 2019 Revised Patent Subject Matter Eligibility Guidance
Next, the claims as a whole is analyzed to determine whether any additional element, or combination of additional elements, is sufficient to ensure that the claims amount to significantly more than the exception.
Claims 1-15 recite the additional element of a processing system including a process, and memory the stores executable instructions. As indicated by Applicant’s specification (paragraphs 25, 56, 125), the processing system is a generic, well known conventional device such as a desktop computer, a laptop computer, a server, a mainframe computer, a gaming console, a gaming accessory, or combinations or portions thereof.
Claims 1-15 recite the additional element of receiving, from the plurality of computer devices, hardware statistics which amount to communicating data. The steps of communicating, transmitting data over a network is well known, routine and conventional. MPEP 2106.05(d)(II), and the cases cited therein, including Intellectual Ventures I, LLC v. Symantec Corp., 838 F.3d 1307, 1321 (Fed. Cir. 2016), TLI Communications LLC v. AV Auto. LLC, 823 F.3d 607, 610 (Fed. Cir. 2016), and OIP Techs., Inc., v. Amazon.com, Inc., 788 F.3d 1359, 1363 (Fed. Cir. 2015), indicate that mere collection or receipt of data over a network is a well‐understood, routine, and conventional function when it is claimed in a merely generic manner (as it is here).
The claim limitations individually and as a whole do not amount to amount to significantly more than an abstract idea.
Dependent claims 2-10, 12-15 further recite an abstract idea of performing a mental process. Thus, taken alone, the additional elements do not amount to significantly more than the above-identified abstract idea. Looking at the additional elements as an ordered combination adds nothing that is not already present when looking at the elements taken individually. For example, there is no indication that the combination of elements improves the functioning of a computer or improves any other technology. The claim does not include additional elements that are sufficient to amount to significantly more than the judicial exception for the same reasons discussed above with respect to the conclusion that the additional elements do not integrate the abstract idea into a practical application. The dependent clams merely include limitations that further define the abstract idea and thus don’t make the abstract idea any less abstract. The claim limitations individually and as a whole do not amount to amount to significantly more than an abstract idea.
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 1-10 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.
Claim 1 recites:
receiving, from the plurality of computer devices, hardware statistics associated with a plurality of gamers that play the gaming programs and performance factors, wherein the receiving hardware statistics comprises:
receiving stimulus signals generated by one or more gaming accessory devices and substituted stimulations based on the stimulus signals, and
processing the stimulus signals and the substituted stimulations to generate the hardware statistics.
The claim recites the step of receiving hardware statistics. The claim is indefinite because is not clear if the step of receiving requires the step of processing the stimulus signals and the substituted stimulations or if it only receives the processed hardware statistics.
Claims 2-10 are rejected by dependency.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-3, 6, 11-14, 16-19 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 8, 11, 14, 16, 18-20 of U.S. Patent No. 12233334. Although the claims at issue are not identical, they are not patentably distinct from each other.
Pending claim 1: a device, comprising:
Claim 1 of 12233334: a device, comprising:
a processing system including a processor; and a memory that stores executable instructions that, when executed by the processing system, facilitate performance of operations, the operations comprising:
processing system including a processor; and a memory that stores executable instructions that, when executed by the processing system, facilitate performance of operations, the operations comprising:
initiating a social network including a plurality of members of the social network and a plurality of computer devices for operating gaming programs;
initiating a social network including a plurality of members of the social network and a plurality of computer devices for operating gaming programs;
receiving, from the plurality of computer devices, hardware statistics associated with a plurality of gamers that play the gaming programs and performance factors, wherein the receiving hardware statistics comprises:
receiving stimulus signals generated by one or more gaming accessory devices and substituted stimulations based on the stimulus signals, and processing the stimulus signals and the substituted stimulations to generate the hardware statistics;
receiving, from the plurality of computer devices, hardware statistics associated with a plurality of gamers that play the gaming programs and performance factors;
receiving stimulus signals generated by one or more gaming accessory devices associated with gamers of the plurality of gamers;
generating substituted stimulations based on the stimulus signals, including substituting a stimulation for a received standard stimulus signal to personalize operation of the one or more gaming accessory devices;
generating a plurality of hardware profiles, each respective hardware profile of the plurality of hardware profiles being associated with a respective gamer of the plurality of gamers, wherein the generating the plurality of hardware profiles is based on the hardware statistics and the performance factors; and
combining the hardware statistics and the performance factors that are received to generate a plurality of hardware profiles, each respective hardware profile of the plurality of hardware profiles being associated with a respective gamer of the plurality of gamers;
presenting a hardware profile that is associated with the respective gamer of the plurality of gamers to members of the social network.
presenting a hardware profile that is associated with a gamer of the plurality of gamers to a portion of the plurality of members of the social network; presenting an interface to a member of the social network, the interface configured to identify performance criteria for selected gamers of the plurality of gamers; and alerting the member of the social network if the gamer of the plurality of gamers achieves the performance criteria of interest for the selected gamers.
As indicated above, Claim 1 of 12233334 discloses the limitations of pending claim 1 and therefore anticipates pending claim 1.
Pending claims 2-3, 6 are anticipated by claims 1, 8 of 12233334.
Pending claims 11-14, 16-19 are anticipated by claims 11, 14, 16, 18-20 12233334.
Claims 1-3 11, 13-17, 19 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 3, 12-13, 17 , 25 of U.S. Patent No. 9044683. Although the claims at issue are not identical, they are not patentably distinct from each other.
Pending claim 1 recites: a device, comprising:
Claim 12 of US 9044683 recites: A device, comprising:
a processing system including a processor; and a memory that stores executable instructions that, when executed by the processing system, facilitate performance of operations, the operations comprising:
a memory storing computer instructions; and a processor coupled to the memory, wherein the processor, responsive to executing the computer instructions, perform operations comprising:
initiating a social network including a plurality of members of the social network and a plurality of computer devices for operating gaming programs;
presenting the gaming statistics to a plurality of members of a social network, wherein a member of the plurality of members of the social network is alerted when a gamer of the plurality of gamers achieves performance criteria; matching two gamers of the plurality of gamers according to patterns present in two gaming profiles of the two gamers; executing a gaming application for a game play comprising the two gamers that are matched
receiving, from the plurality of computer devices, hardware statistics associated with a plurality of gamers that play the gaming programs and performance factors, wherein the receiving hardware statistics comprises:
receiving stimulus signals generated by one or more gaming accessory devices and substituted stimulations based on the stimulus signals, and processing the stimulus signals and the substituted stimulations to generate the hardware statistics;
receiving, from a plurality of computer devices, a plurality of gaming statistics and a plurality of performance factors that are associated with a plurality of gamers that play gaming programs at the plurality of computer devices, wherein the plurality of gaming statistics that are received comprise a plurality of gaming stimulations, a plurality of substituted stimulations, and a plurality of gaming results,
generating a plurality of hardware profiles, each respective hardware profile of the plurality of hardware profiles being associated with a respective gamer of the plurality of gamers, wherein the generating the plurality of hardware profiles is based on the hardware statistics and the performance factors; and
wherein, at each computer device of the plurality of computer devices, a set of gaming stimulations, a set of substituted stimulations, and a set of gaming results are collected and correlated to generate a set of performance factors, wherein the plurality of substituted stimulations comprise signals that are substituted for a plurality of stimulus signals generated by a plurality of gaming accessory devices based on a pre-arranged substitution strategy; combining the plurality of gaming statistics and the plurality of performance factors that are received to generate a plurality of gaming profiles that associated with the plurality of gamers
presenting a hardware profile that is associated with the respective gamer of the plurality of gamers to members of the social network.
presenting information representing the game play of the gaming application to the plurality of members of the social network.
As indicated above, Claim 12 of 9044683 discloses the limitations of pending claim 1 and therefore anticipates pending claim 1.
Pending claims 2-3, 10 are anticipated by claims 12-13, 17 of 9044683.
Pending claims 11, 13-17, 19 are anticipated by claims 1, 3, 25 of 9044683.
Allowable Subject Matter
Claim 20 is objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Pertinent Prior Art
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
The closest prior art Tsuchiya (US 2012/0233564) discloses a device, comprising:
a processing system including a processor (500 in Fig. 4); and
a memory (502 in Fig 1) that stores executable instructions that, when executed by the processing system, facilitate performance of operations, the operations comprising:
initiating a social network including a plurality of members of the social network and a plurality of computer devices for operating gaming programs (social network with members; i.e. Taro and Jiro in Fig. 10);
receiving, from the plurality of computer devices, hardware statistics associated with a plurality of gamers that play the gaming programs and performance factors, wherein the receiving hardware statistics comprises (Hardware statistics for different hardware including portable game device and stationary game device and performance factors including stats of completion and various trophies earned with the associated gaming program. See 252 and 254 in Figs. 10-12, paragraphs 106-123):
receiving stimulus signals generated by one or more gaming accessory devices, and processing the stimulus to generate the hardware statistics (received from accessory devices or input device 20 in fig. 3; paragraphs 41, 76);
generating a plurality of hardware profiles, each respective hardware profile of the plurality of hardware profiles being associated with a respective gamer of the plurality of gamers, wherein the generating the plurality of hardware profiles is based on the hardware statistics and the performance factors (hardware profiles using portable device and stationary game devices; paragraphs 113-116).
presenting a hardware profile that is associated with the respective gamer of the plurality of gamers to members of the social network (Figs. 10-12).
However, Tsuchiya fails to teach receiving stimulus signals generated by one or more substituted stimulations based on the stimulus signals, and processing the stimulus signals and the substituted stimulations to generate the hardware statistics.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Jasson H Yoo whose telephone number is (571)272-5563. The examiner can normally be reached M-F 9am-5pm.
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/JASSON H YOO/ Primary Examiner, Art Unit 3715
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