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 1-4, 6-14 are rejected under 35 U.S.C. 101 because the claims disclose an abstract idea that lack practical application, and significantly more.
Under Step 2A, the claimed invention is directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea). The claims are directed to the abstract ideas of methods of organizing human activity to mitigate risk as identified in MPEP 2106.04(a)(2)(II), and mental steps taken to detect fraud as discussed in MPEP 2106.04(a)(2)(II)(B)(A)(2)(“ Performing a mental process in a computer environment.”).
The instant application discloses a system of detecting fraud within sports gambling wherein a trained machine learning model collects various information and organizes the information in different profiles including a player profile and a betting profile, wherein the system determines a difference between two profiles to determine if the difference is within a particular threshold. When the difference falls within a threshold then a fraud alert is initiated and the proper authorities are notified. However, such reflects a mental process as it is a method of detecting fraud wherein the a game administrator can create profiles using various information, such as by gathering player performance data, and compare said profile against a series, i.e. a profile, of betting information. For example, a game administration can collect the number of rebounds a basketball player had each game, and compare the data against bets being made on said rebounding for each game, for the purpose of identifying unusual betting behavior and unusual player performance, wherein when unusual behavior and performance is identified, the game administration can alert the authorities. A game administrator can even use computer functions such as graphing software to compare the two profiles, and the process will still be within the bounds of a mental process as the computer is merely used as a tool for performing the abstract idea. In Recentive Analytics v. Fox Corp., the Court stated “Finally, 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. We have consistently held, in the context of computer-assisted methods, that such claims are not made patent eligible under § 101 simply because they speed up human activity. See, e.g., Content Extraction, 776 F.3d at 1347; DealerTrack, 674 F.3d at 1333. Whether the issue is raised at step one or step two, the increased speed and efficiency resulting from use of computers (with no improved computer techniques) do not themselves create eligibility.” Thus, when a generic computer is used to merely increase the speed at which calculations can be made, the mental process of performing said calculation is still an abstract idea. Importantly, Recentive also states that nondescriptive generic machine learning models do not create patent eligible subject matter when the claimed invention is directed towards an abstract idea.
Lastly, the claimed invention is directed towards the determining whether fraud is present in a gambling setting. This is the equivalent to mitigating risk as game administrators want to mitigate the risk of fraud occurring and the gambling company losing money. Thus, the claims are deemed to be an abstract idea as they fall within the group of methods of organizing human activity.
The second prong of Step 2A, ask whether the claims recite additional elements that would integrate the abstract idea into a practical application. Here, no such practical application exists. There is no improvement made to computer technology since the claims merely discuss identifying suspicious player and betting behavior. Such is not rooted in computer technology. Additionally, regarding the use of trained machine learning models to perform the abstract idea, the Court in Recentive stated “the requirements that the machine learning model be “iteratively trained” or dynamically adjusted in the Ma chine Learning Training patents do not represent a technological improvement. Recentive’s own representations about the nature of machine learning vitiate this argument: Iterative training using selected training material and dynamic adjustments based on real-time changes are incident to the very nature of machine learning.” Here, the Court insisted that the claims must present improvements in machine learning, and not simply using machine learning to perform an abstract idea “But Recentive also admits that the patents do not claim a specific method for “improving the mathematical algorithm or making machine learning better,” and “Instead of disclosing “a specific implementation of a solution to a problem in the software arts,” Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1339 (Fed. Cir. 2016), or “a specific means or method that solves a problem in an existing technological process,” Koninklijke, 942 F.3d at 1150, the only thing the claims disclose about the use of machine learning is that machine learning is used in a new environment.” Thus, the machine learning model of the instant application does not present an improvement to machine learning.
Additionally, there is no particular machine that is used to implement the claim language, but instead and as will be discussed below only the use of machine learning, i.e. computer algorithms. Also, there is no transformation of the machine used in the application into a different state or thing. Lastly, the claims do not attempt to apply the abstract idea in a meaningful way beyond simply using the claimed machine.
3. Step 2B asks whether a claimed invention which fails Step 2A contains an inventive concept, i.e. significantly more. Here, much of the claimed invention does not recite significantly more as the claim language only recites a computer and machine learning models, however both are generic computers elements as machine learning models are simply algorithms and computer code and without specifics that would introduce patent eligible subject matter. The Court in Recentive as discussed above, stated that stating machine learning without more does not create patent eligible subject matter. Claims 5 and 15 introduces such, by listing different networks as a combination within the system. Thus, the claims go beyond merely mentioning machine learning and also individual elements that could be viewed as conventional. Thus, regarding claims 1-4, and 6-14, the claim is directed to an abstract idea that lacks significantly more and thus is not patent eligible.
Allowable Subject Matter
Claims 5 and 15 are 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.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to REGINALD A RENWICK whose telephone number is (571)270-1913. The examiner can normally be reached Monday-Friday 11am-7pm.
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REGINALD A. RENWICK
Primary Examiner
Art Unit 3714
/REGINALD A RENWICK/Primary Examiner, Art Unit 3715
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