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 .
Priority
Applicant’s claim for the benefit of a prior-filed application under 35 U.S.C. 119(e) or under 35 U.S.C. 120, 121, 365(c), or 386(c) is acknowledged.
Election/Restrictions
Claims 15-28 & 36-63 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 1/12/26.
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 1-14, 29-35 & 64-70 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.
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), and if so, it must additionally be determined whether the claim is a patent-eligible application of the exception. If an abstract idea is present in the claim, any element or combination of elements in the claim must be sufficient to ensure that the claim amounts to significantly more than the abstract idea itself. Examples of abstract ideas include fundamental economic practices; certain methods of organizing human activities; an idea itself; and mathematical relationships/formulas. Alice Corporation Pty. Ltd. v. CLS Bank International, et al., 573 U.S.___(2014).
Claims 1-14 & 29-35 are directed to a computer implemented method, while claims 64-70 are directed to a computer implemented system. As such, the claims are directed to statutory subject matter under Step 1 of the Alice flowchart directed to a judicial exception (i.e. an abstract idea).
Addressing the claims under Step 2A, the claims are held to be directed to concepts similar to those found to be abstract, either as outlined in the 2014 lEG/July 2015 Update to Subject matter eligibility, or, as compared to certain decisions rendered by the courts. The claims describe the steps of generating game instructions based on Artificial Intelligence (AI) game analysis of past or current game data. The addition of the limitations that narrow the idea merely aide in the description of the abstract idea and therefore do not render the claims any less abstract. Under further analysis under step 2A, the claims recites:
“generating at least in part executable instructions or computer-readable files for the game of chance using an artificial intelligence (AI) game design system, wherein the Al game design system is at least partially trained using machine learning including analyzing past or current game of chance characteristics data; wherein the past or current game of chance characteristics data comprises one or more of: source code, gameplay videos, manually entered game characteristics, media files, math files, biometric player data, player behavior data, or any combination thereof; wherein the Al game design system is further configured or adapted using manually entered input data to update the Al game design system based on one or more of: user ratings, game design selections, game characteristics, game attributes, game elements, relative rankings, evaluative critiques, preference indicators, game performance metrics, or comparative assessments of game features or outputs, to adjust Al model parameters or associated functions; processing input or output data using a preprocessing component configured to convert or consolidate the input data into a specific format or file type and forward the converted or consolidated data to at least one neural network; and utilizing, at least in part, the executable instructions or computer-readable files to present and allow play of the game of chance for (i) a gaming machine, the gaming machine including at least one of: a monetary input device configured to receive a physical item associated with a monetary value and/or enable cashless wagering, a user interface, at least one processor for running the at least partially developed executable instructions or computer-readable files related to the game of chance, a game display, and memory in communication with the at least one processor and/or (ii) an online or mobile gaming platform, wherein the online or mobile gaming platform comprises a computing device, remote server, or cloud-based system that utilizes the at least partially developed computer-readable files and/or executable instructions to present and allow remote gameplay.”
The concept of identifying and transmitting information to a user further represents ‘an idea itself’ (see July 2015 Update: Section III (C)) inasmuch as it is related to processes of identifying, comparing, processing, and presenting data. Several precedential cases have found concepts relating to processes of identifying, comparing, processing, and presenting data to be mere ideas in themselves. One example includes selecting/identifying displayed data, manipulating the data through encoding and decoding processes, and generating new outputs/displays (Recognicorp, LLC, v. Nintendo Co., Ltd., Nintendo of America, Inc., No. 2:12-cv-01873-RAJ (2017)). The courts have addressed other computerized processes for of identifying, comparing, processing, and presenting data including data collecting and comparing known information (Classen Immunotherapies Inc. v. Biogen IDEC 659 F.3d 1057(Fed. Cir. 2011)), collecting information, analyzing it, and displaying certain results of the collection and analysis (Electric Power Group, LLC v. Alstom 830 F.3d 1350, 119 U.S.P.Q.2d 1739 (Fed. Cir. 2016))] extracting, organizing, storing and transmitting data (Content Extraction and Transmission LLC v. Wells Fargo Bank, National Ass'n. 776 F.3d 1343 (Fed. Cir. 2014)) and obtaining and comparing intangible data (Cybersource Corp v. Retail Decisions, Inc. 654 F.3d 1366, 99 U.S.P.Q. 2d 1690 (Fed. Cir. 2011)) (see July 2015 Update: Section III (C)).
Therefore, while it is understood that the claims in the current application are not verbatim recitations of the guidelines or case law, the detailed analysis provided above shows how the current claim limitations at issue closely parallel the concepts provided by the guidelines and the precedential case law, and are therefore considered to be directed to an abstract idea (Step 2A: YES).
Step 2A, Prong Two: Claims 1-14, 29-35 & 64-70 does not contain additional elements that integrate the abstract idea exception into a practical application because the additional elements are mere instructions to apply the abstract idea exception; MPEP § 2106.05(f). (2) generally link the judicial exception to a particular technological environment (including AI); MPEP § 2106.05(h); (3) are insignificant extra solution activity; MPEP § 2106.05(g). The additional elements are limited to generic computer components. The additional elements are: a processor and storage hardware including instructions [“computer-readable files”], AI system [software]; interface system [software], intelligence system [software], and permission system [software].
Therefore, the claim as a whole, looking at the additional elements individually and in combination, are no more than mere instructions to apply the exception using generic computer/computer components and is not a practical application; See MPEP §2106.05(f). The additional elements do not integrate the abstract idea exception into a practical application because they do not impose any meaningful limits on the abstract idea exception. Accordingly, claim 1-14, 29-35 & 64-70 are directed to an abstract idea.
Under Step 2B, the examiner acknowledges the additional limitations (i.e. game interface, and various forms of software for analyzing data in game). Under Step 2B, no element or combination of elements is sufficient to ensure the claim as a whole amounts to significantly more that the abstract idea itself. For example, the computer components generically claimed to enable game analysis by performing the basic functions of: (i) receiving, processing, and storing data, and (ii) analyzing game data. The courts have recognized these functions to be well-understood, routine, and conventional functions when claimed in a merely generic manner. Particularly, In re TLI Communications LLC (Fed Cir, 2016) held that adding hardware that performs “‘well understood, routine, conventional activit[ies]’ previously known to the industry” will not make claims patent-eligible. As such, the recitation of the computer limitations in claims 1-14, 29-35 & 64-70 amounts to mere instructions to implement the abstract idea on a computer.
These limitations however are used for data gathering and presentation and as such merely represents insignificant pre and post solution activity. Even assuming arguendo that the claims are not insignificant pre and post solution activities or mental activities, each of the functions performed by the machinery are well-understood, routine, and conventional (i.e., receiving and processing data, and receiving or transmitting data over a network, e.g., using the Internet to gather data (see July 2015 Update: Section IV)).
Additionally, these limitations are merely generic recitations of computers and networks performing basic functions and the claims amount to nothing more than implementing the abstract idea on a computer. The limitations taken as a whole amount to nothing more than implementing the concept of generating game instructions based on Artificial Intelligence (AI) game analysis of past or current game data with routine, conventional activity specified at a high level of generality in a particular technological environment. When viewed either as individual limitations or as an ordered combination, the claims as a whole do not add significantly more to the abstract idea of identifying and analyzing user information.
Ultimately, the claimed machine(s) function solely as an obvious mechanism to achieve the claimed result, failing to impart a meaningful limit on the claim scope [see SiRF Tech., Inc. v. ITC (Fed. Cir. 2010)]. The claims at issue here do not rise to overriding the routine and conventional sequence of events ordinarily performed by the computer, nor do they set forth with any specificity the interactions of the machine itself. Conversely, the claims are only specific in how the computer is used to facilitate the abstract idea itself using routine and conventional operations of the generic machinery, and are silent as to any detail or property that would transform the otherwise generic machinery into a specialized or special purpose machine. Even when considered as an ordered combination, the computer components of applicant's method add nothing that is not already present when they are considered individually. Viewed as a whole, the claims simply convey the idea itself facilitated by generic computing components.
Thus, under Step 2B, the Examiner concludes that there are no meaningful limitations in the claim that transform the judicial exception into a patent eligible application such that the claim amounts to significantly more than the judicial exception itself (Step 2B: NO).
Dependent claims when analyzed as a whole are held to be patent ineligible under 35 U.S.C. 101 because the additional recited limitations fail to establish that the claims are not directed to an abstract idea. The claims provide minimal technical structure or components for further consideration either individually or as ordered combinations with the independent claims. As such, additional recited limitations in the dependent claims only refine the identified abstract idea further. Further refinement of an abstract idea does not convert an abstract idea into something concrete.
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 11, 34 & 69 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. For example, claim s 11, 34 & 69 states “wherein a majority of the executable instructions or computer-readable files generated by the Al game design system”, however, the examiner cannot ascertain what is meant by "majority” such that the metes and bounds of the claims can clearly evaluated (how much does “majority” refer to? What is evaluating the capability?). The above limitation, result in failing to particularly point out and distinctly claim the subject matter which applicant regards as the invention.
Examiner finds that because the claims are indefinite under 35 U.S.C. §112, 2nd paragraph, it is impossible to properly construe claim scope at this time. However, in accordance with MPEP §2173.06 and the USPTO's policy of trying to advance prosecution by providing art rejections even though these claims are indefinite, the claims are given broadest reasonable interpretation and prior art is applied as much as practically possible.
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 1-14, 29-35 & 64-70 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1-70 of copending Application No. 19/246,380 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because the current application and co-pending application substantially claims similar limitations with an exception. The current application additionally claims “an online or mobile gaming platform, wherein the online or mobile gaming platform comprises a computing device, remote server, or cloud-based system that utilizes the at least partially developed computer-readable files and/or executable instructions to present and allow remote gameplay”. However, it would have been obvious for one with ordinary skill in the art, at the time of invention to modify the game system disclosed by co-pending application include an online or mobile game platform to implement the game to allow user to participate in off-site gaming, as stated by the current application.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
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.
Claims 1-14, 29-35 & 64-70 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Russ et al. (US Patent Pub. 20230377421; referred to hereinafter as Russ).
Claims 1, 29 & 64: Russ disclose a method for developing a game of chance (abstract), the method comprising, generating at least in part executable instructions or computer-readable files for the game of chance using an artificial intelligence (AI) game design system, wherein the Al game design system is at least partially trained using machine learning including analyzing past or current game of chance characteristics data (0045-0048 & 0076 discloses Al game design system partially trained using machine learning including analyzing game data of players), wherein the past or current game of chance characteristics data comprises one or more of: source code, gameplay videos, manually entered game characteristics, media files, math files, biometric player data, player behavior data, or any combination thereof (0043-0048 player behavior data and analysis), wherein the Al game design system is further configured or adapted using manually entered input data to update the Al game design system based on one or more of: user ratings, game design selections, game characteristics, game attributes, game elements, relative rankings, evaluative critiques, preference indicators, game performance metrics, or comparative assessments of game features or outputs, to adjust Al model parameters or associated functions (0043-0048 game performance metrics; 0085-0088 player’s historical data, & 0203-0205), processing input or output data using a preprocessing component configured to convert or consolidate the input data into a specific format or file type and forward the converted or consolidated data to at least one neural network (0093-0095 & 0170-0172), and utilizing, at least in part, the executable instructions or computer-readable files to present and allow play of the game of chance for (i) a gaming machine, the gaming machine including at least one of: a monetary input device configured to receive a physical item associated with a monetary value and/or enable cashless wagering, a user interface, at least one processor for running the at least partially developed executable instructions or computer-readable files related to the game of chance, a game display, and memory in communication with the at least one processor (0250-0256 disclose cash input devices, ticket acceptor device including processors to conduct the system), and/or (ii) an online or mobile gaming platform, wherein the online or mobile gaming platform comprises a computing device, remote server, or cloud-based system that utilizes the at least partially developed computer-readable files and/or executable instructions to present and allow remote gameplay (0068-0072, disclose mobile gaming system with remote game servers).
Claims 2, 30 & 65: Russ disclose wherein the Al game design system generates one or more of computer-readable graphic files, executable programming files, audio files, animation files, mathematical files, or quality assurance files (0042-0045, disclose AI based game avatars and sound effects).
Claims 3, 31, 33, 66 & 68: Russ disclose wherein the mathematical files include volatility parameters, payout structures, return-to-player distributions, and/or bonus round configurations (0048-0051).
Claim 4: Russ disclose the computer-readable graphic files include symbol designs, background artwork, themed visual assets, or visual effects (0042-0045 avatars).
Claims 5 & 13: Russ disclose the audio files include win celebration sounds, background music, ambient effects, or bonus round sound effects (0042).
Claim 6: Russ disclose the animation files include interpolated frames, character or symbol motions, transition effects, or pacing adjustments (0042).
Claims 7, 32 & 67: Russ disclose the executable programming files define game flow, logic rules, memory allocation, user responsiveness, or reel timing behavior (0058-0059 disclose rules for process flow).
Claim 8: Russ disclose the quality assurance files include test scenarios, validation checks, output reports, or corrective suggestions relating to game performance (0215 & 0270, validation process). Claim 9: Russ disclose the preprocessing component processes media files for compatibility, formatting, compression, or playback optimization across one or more gaming platforms (0045).
Claim 10: Russ disclose the preprocessing component selects an output with a higher probability variable based on weighting, scoring estimates, or projected performance derived from Al analysis (0045).
Claims 11, 34 & 69: Russ disclose the executable instructions or computer-readable files generated by the Al game design system are developed prior to lab approval, regulatory certification, or offering of the game of chance for real-money play (0042 game of chance with rewards).
Claims 12, 35 & 70: Russ disclose the Al game design system employs supervised learning, unsupervised learning, reinforcement learning, or any combination thereof (0115, disclose unsupervised machine learning).
Claim 14: Russ disclose the executable instructions include one or more of: logic code for game operation, probability engines, bonus trigger mechanisms, win evaluation code, reel spin sequencing, memory allocation routines, or code governing random number generation (0094 & 0322-0323).
Examiner’s Note
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Keilwert (11,721,160) refers to systems, devices, and methods for artificial intelligence implementation for modifying user interface elements may include receiving gaming device data associated with a gaming device, the gaming device data including a plurality of gaming device parameter values for a plurality of gaming parameters associated with the gaming device. The gaming device data is analyzed to determine a first gaming device parameter value of the plurality of gaming device parameter values. Using a predictive model including a plurality of data clusters, the first gaming device parameter value is correlated with a first data cluster of the plurality of data clusters, where each data cluster is associated with a user interface parameter value of the gaming device. A user interface element of the gaming device is then modified based on the user interface parameter value associated with the first data cluster.
Aghdaie (20170259177) refers to automatic granular difficulty adjustment. In some embodiments, the difficulty adjustment is undetectable by a user. Further, embodiments of systems disclosed herein can review historical user activity data with respect to one or more video games to generate a game retention prediction model that predicts an indication of an expected duration of game play. The game retention prediction model may be applied to a user's activity data to determine an indication of the user's expected duration of game play. Based on the determined expected duration of game play, the difficulty level of the video game may be automatically adjusted.
The referenced citations made in the rejection(s) above are intended to exemplify areas in the prior art document(s) in which the examiner believed are the most relevant to the claimed subject matter. However, it is incumbent upon the applicant to analyze the prior art document(s) in its/their entirety since other areas of the document(s) may be relied upon at a later time to substantiate examiner's rationale of record. A prior art reference must be considered in its entirety, i.e., as a whole, including portions that would lead away from the claimed invention. W.L. Gore & Associates, Inc. v. Garlock, Inc., 721 F.2d 1540, 220 USPQ 303 (Fed. Cir. 1983), cert. denied, 469 U.S. 851 (1984). However, "the prior art's mere disclosure of more than one alternative does not constitute a teaching away from any of these alternatives because such disclosure does not criticize, discredit, or otherwise discourage the solution claimed ...." In re Fulton, 391F.3d 1195, 1201,73 USPQ2d 1141, 1146 (Fed. Cir. 2004).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SUNIT PANDYA whose telephone number is (571)272-2823. The examiner can normally be reached M-F 9:30-6:30PM.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Peter Vasat can be reached at 571-270-7625. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/SUNIT PANDYA/Primary Examiner, Art Unit 3715