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 .
This non final office action is in response to applicant’s filing of application number 19/090,891 on March 26, 2025. Claims 1-20 are pending and under examination.
Information Disclosure Statement
The Information Disclosure Statement filed on February 27, 2026 has been considered. An initialed copy of the Form 1449 is enclosed herewith.
Double Patenting
The non-statutory 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 non-statutory double patenting rejection is appropriate where the claims at issue 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); and /n 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 a non-statutory double patenting ground provided the reference application or patent either is shown to be commonly owned with this application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. A terminal disclaimer must be signed in compliance with 37 CFR 1.321 (b).
The USPTO internet Web site contains terminal disclaimer forms which may be used. Please visit http:/Awww.uspto.gov/forms/. The filing date of the application will determine what form should be used. A web-based e-Terminal Disclaimer may be filled out completely online using web-screens. An e-Terminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about e-Terminal Disclaimers, refer to
http://www.uspto.gov/patents/process/file/efs/guidance/eTD-info-l.jsp.
Effective January 1, 1994, a registered attorney or agent of record may sign a terminal disclaimer. A terminal disclaimer signed by the assignee must fully comply with 37 CFR 3.73(b).
Claims 1-20 are rejected on the ground of non-statutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 12/288,347. Although the conflicting claims are not identical, they are not patentably distinct from each other because it is well settled that the omission of an element and its function is an obvious expedient if the remaining elements perform the same function as before". in re Karlson, 136 USPQ 184 (CCPA 1963).
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 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.
Subject Matter Eligibility Standard
When considering subject matter eligibility under 35 U.S.C. 101, 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, it must then be determined whether the claim is directed to a judicial exception (i.e., law of nature, natural phenomenon, and abstract idea).
Under Step 1 of the analysis, claim 1 is directed to a method claim. Claim 11 is directed to a computer product claim. Claim 20 is system claim. Each of the claims falls under one of the four statutory classes of invention.
Representative Claim 1 recites:
applying a staffing level forecasting model to predict a staffing level for a retailer location during a future time period to achieve a target order fulfillment efficiency, the staffing level forecasting model trained by:
accessing historical data describing orders requested by customers and fulfilled by staff at the retailer location by procurement of items indicated in the orders, applying the staffing level forecasting model to staffing level over a first time period from the historical data to predict order fulfillment efficiency, comparing the predicted order fulfillment efficiency to historical order fulfillment efficiency from the historical data, and retraining the staffing level forecasting model based on the comparison of the predicted order fulfillment efficiency to the historical order fulfillment history;
determining a number of shifts for the future time period based on the predicted staffing level for the future time period; and
transmitting a communication to client devices operated by staff associated with the retailer location indicating the number of shifts for the future time period.
The claim limitations in the abstract idea have been highlighted in bold above; the remaining limitations are "additional elements."
Similar limitations comprise the abstract ideas of Claims 11 and 20.
Claim 2 further claims a time series model that predicts the staffing level for the retailer location for the future time period based on past time periods of the historical data.
Claim 3 further claims predict the staffing level for the retailer location for each time increment over the future time period, wherein determining the number of shifts for the future time period comprises determining a duration for each shift based on the predicted staffing level for each time increment over the future time period.
Claim 4 further claim partitioning the first time period by the time increment, wherein applying the staffing level forecasting model comprises applying the time series model to predict the staffing level at each time increment for the first time period, and wherein comparing the predicted order fulfillment efficiency to the historical order fulfillment efficiency comprises comparing the predicted order fulfillment efficiency to the historical order fulfillment efficiency over the time increments for the first time period.
Claim 5 further claims predicts the optimal staffing level associated with: a number of staff in a first role; and a number of staff in a second role.
Claim 6 further claims one model for predicting staffing level associated with the number of staff in the first role and another model for predicting staffing level associated with the number of staff in the second role.
Claim 7 further claims wherein the one model and the other model are separately trained.
Claim 8 further claims evaluating a performance metric of the online concierge system when operating with the assigned staff during the future time period; and
retraining the staffing level forecasting model based on the performance metric during the future time period.
Claim 9 further claims wherein the performance metric comprises at least one of:
a staff utilization rate, a waiting frequency indicative of a rate at which there was a wait time between receiving an order and beginning to fulfill the order, and a fallback frequency indicative of a rate at which an external service provider separate from the staff was utilized for order fulfillment.
Claim 10 further claims wherein assigning the staff of the warehouse to the shifts comprises: maximizing a constrained objective function based on a cumulative labor efficiency value based one or more of:
a first constraint that each shift for a worker starts later than a start of an availability window for the worker;
a second constraint that each shift for the worker ends earlier than an end of the availability window for the worker;
a third constraint that multiple shifts for the worker do not overlap; and a fourth constraint that each shift includes at least the optimal staffing level predicted by the staffing level forecasting model.
Claim 12 further claims a time series model that predicts the staffing level for the retailer location for the future time period based on past time periods of the historical data.
Claim 13 further claims predict the staffing level for the retailer location for each time increment over the future time period, wherein determining the number of shifts for the future time period comprises determining a duration for each shift based on the predicted staffing level for each time increment over the future time period.
Claim 14 further claims wherein the staffing level forecasting model is further trained by:
partitioning the first time period by the time increment, wherein applying the staffing level forecasting model comprises applying the time series model to predict the staffing level at each time increment for the first time period, and wherein comparing the predicted order fulfillment efficiency to the historical order fulfillment efficiency comprises comparing the predicted order fulfillment efficiency to the historical order fulfillment efficiency over the time increments for the first time period.
Claim 15 further claims wherein the staffing level forecasting model predicts the optimal staffing level associated with: a number of staff in a first role; and a number of staff in a second role.
Claim 16 further claims one model for predicting staffing level associated with the number of staff in the first role and another model for predicting staffing level associated with the number of staff in the second role.
Claim 17 further claims wherein the one model and the other model are separately trained.
Claim 18 further claims evaluating a performance metric of the online concierge system when operating with the assigned staff during the future time period; and
retraining the staffing level forecasting model based on the performance metric during the future time period.
Claim 19 further claims wherein the performance metric comprises at least one of: a staff utilization rate, a waiting frequency indicative of a rate at which there was a wait time between receiving an order and beginning to fulfill the order, and a fallback frequency indicative of a rate at which an external service provider separate from the staff was utilized for order fulfillment.
Regarding claims 1, 11, 1nd 20,
Step 2A, Prong One, applicant is to be noted that the steps or functions of "applying”, “accessing”, “comparing”, “determining” (Claims 1 and 11 and 20), involve mental processes and/or generic computer functions. The functions of “retraining” (Claims 1, 11 and 20) are similar to a mathematical function. The function “transmitting” is an insignificant post solution activity.
Accordingly, claims 1, 11 and 20 are found to include at least one judicial exception, that the resent claims recite steps that can be performed using the human mind, pen, and paper. According to the 2019 Revised Guidance, concepts performed in the human mind (including an observation, evaluation, judgement, or opinion) fall into the category of mental processes. See 2019 Revised Guidance, 84 Fed. Reg. at 52.
Step 2A, Prong Two of the eligibility analysis evaluates whether the claims as a whole integrate the recited judicial exception(s) into a practical application of the exception. This evaluation is performed by (a) identifying whether there are any additional elements recited in the claim beyond the judicial exception, and (b) evaluating those additional elements individually and in combination to determine whether the claim as a whole integrates the exception into a practical application.2019 PEG Section III(A)(2), 84 Fed. Reg. at 54-55. In particular, the claims recite the following bolded limitations understood to be additional limitations:
In addition to the abstract ideas recited in claims 1, 11 and 20, the claimed method recites additional elements including a forecasting model and client devices (claim 1), a non-transitory computer readable storage medium having instructions encoded thereon that, when executed by a processor (Claim 11), one or more processors; and a non-transitory computer readable storage medium (Claim 20). See Paragraph 0070 of applicant’s specification.
When considered in view of the claims as a whole, the recited computer elements do not integrate the abstract idea into a practical application because the computer elements are generic computer elements that are merely used as a tool to perform the recited abstract idea. As a result, claims 1, 11 and 20 do not include additional elements that integrate the abstract idea into a practical application under Step 2A Prong Two.
Performing steps or functions by a user device, processor or a computing system merely limits the abstraction to a computer field by execution by generic computers. See MPEP 2106.05.
As noted in MPEP 2106.04(d), limitations which amount to instructions to implement an abstract idea on a computer or merely using a computer as a tool, limitations which amount to insignificant extra-solution activity, and limitations which amount to generally linking to a particular technological environment do not integrate a practical exception into a practical application.
Step 2B: The elements discussed above with respect to the practical application in Step 2A, prong 2 are equally applicable to consideration of whether the claims amount to significantly more. Accordingly, the claims fail to recite additional elements which, when considered individually and in combination, amount to significantly more. Reconsideration of these elements identified as insignificant extra-solution activity as part of Step 2B does not change the analysis.
Applying, accessing, comparing, retraining, determining and transmitting data by a processor or computer hardware amounts to receiving and processing data over a network has been recognized by the courts as well-understood, routine, and conventional (See MPEP 21065(d)(H), citing Symantec. 838 F.3d at ! 32! , 120 USPQ2d at l 362 (utilizing an intermediary computer to forward information): TU Communications LLC v. AV Auto. LLC, 823 F3d 607,610, 118 USPQ2d 1744, 1745 (Fed. Cir. 2016) (using a telephone for image transmission): OIP Techs., Inc., v, Amazon.com, Inc., 788 F3d 1359, 1363, 115 USPQ2d 1090, 1093 (Fed. Cir, 2015) (sending messages over a network: buy SAFE, Inc.v. Google, Inc., 765 F.3d 1350, 1355, 112 USPQ2d 1093, 1096 (Fed. Cir. 2014) (computer receives and sends information over a network).
Positively reciting a processor does not change the analysis as these aspects are properly considered as additional elements which amount to instructions to apply with a computer.
These claimed elements also as found in the dependent claims are also recited at a high level of generality such that they amount to no more than mere instructions to apply the exception using a generic component.
In processing the claims, it is noted that the recitation of these additional elements does not impact the analysis of the claims because these elements in combination are noted only to be a general purpose computer or processor for performing basic or routine computer functions. These claimed elements are noted to a be a generic computer for accessing data similar to collecting data, storing data and performing routine and conventional functions.
The judicial exception is not integrated into a practical application. In particular, the claimed “ is recited at a high level of generality such they amount to no more than mere instructions to apply the exception using generic components. Accordingly, the additional elements do not integrate the abstract idea into a practical application because they do not impose any meaningful limits on practicing the abstract idea.
As a result of the above analysis, claim 1, as well as claims 11 and 20, do not appear to be patent eligible under 101. Accordingly, claims 1, 11 and 20 are directed to an abstract idea.
Dependent claims 2-10, and 12-19 include additional elements beyond those recited by independent claims 1, and 11. The claimed steps do not amount to significantly more than the abstract idea, because they are well-understood, routine, and conventional computer functions in view of MPEP 2106 .05(d)(11). The recited computer elements do not amount to significantly more than the abstract idea because the computer elements are generic computer elements that are merely used as a tool to perform the recited abstract idea. As a result, claims 2-10 and 12-19 do not include additional elements that amount to significantly more than the abstract idea under Step 2B.
Therefore, the claims are directed to an abstract idea without additional elements amounting to significantly more than the abstract idea. Accordingly, claims 1-20 are rejected under 35 USC. 101 as being directed to non-statutory subject matter.
The prior art taken alone or in combination failed to teach or suggest the claimed invention.
NOTE: Currently there are no outstanding prior art rejections under 35 USC § 102 or 35 USC § 103. The claims would allowable if overcome the 101 rejection
Braumoeller et al (US Patent No. 7,295,990 B1) teaches a method for determining a fulfillment plan that is specific to an order or potential order and that minimizes the negative impact on future orders, determine actual delivery information for an order or potential order, such as to display actual delivery date or time information to a customer before or during the ordering process.
Hsu et al (US Patent No. 7,389,249) teach using an allocation search sequence method to fulfill customer orders in accordance with a customer's requested order due date. The system and method to achieve an optimal target date for fulfilling a customer's order. A customer's order is reserved in accordance with the order fulfillment system to reserve a customer order correlated processing capacity and reserves forecasted processing of the order.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. As per attached PTO 892 form.
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/ROMAIN JEANTY/Primary Examiner, Art Unit 3624
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