DETAILED ACTION
1. This Final Office Action is in response to Applicant’s Remarks filed 7/9/2026. Claims 21-39 are currently pending. The earliest effective filing date of the present application is 10/17/2018.
Notice of Pre-AIA or AIA Status
2. 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
3. 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.
4. Claims 21-39 are rejected under 35 U.S.C. 101 because the claimed invention is directed a judicial exception (i.e., an abstract idea) without significantly more.
Step 1 – Statutory Categories
As indicated in the preamble of the claim, the examiner finds the claim is directed to a process, machine, manufacture, or composition of matter. Claims 1-7 are processes (methods), and claims 8-20 are machines (systems or devices).
Step 2A – Prong 1: was there a Judicial Exception Recited
Claim 21 (similarly claims 38 and 39) recites the following bolded abstract concepts that are found to include “abstract idea”:
21. (New) A non-transitory computer readable medium containing instructions that when executed by at least one processor, cause the at least one processor to perform operations for automatically populating an electronic shopping basket with products selected by a customer, the operations comprising:
activating an image sensor to automatically record product images in a store (observation);
detecting in a first automatically recorded image, a first product, wherein the first automatically recorded image is recorded without the customer affirmatively clicking a capture button (observation);
detecting in a second automatically recorded image, a second product, wherein the second automatically recorded image is recorded without the customer affirmatively clicking the capture button(observation);
detecting in a third automatically recorded image, a third product, wherein the third automatically recorded image is recorded without the customer affirmatively clicking the capture button (observation);
determining based on at least one characteristic of the first automatically recorded image, an intent of the customer to purchase the first product (evaluation);
determining based at least in part on proximity of the second product to the image sensor, an intent of the customer not to purchase the second product (evaluation);
determining based at least in part on proximity of the third product to the image sensor, an intent of the customer to purchase the third product(evaluation);
associating the first product and the third product with the electronic shopping basket (opinion); and
omitting an association of the second product from the electronic shopping basket (opinion).
Claim 21 (similarly claims 38 and 39) is directed to a series of steps for automatically populating an electronic shopping basket with products selected by a customer, which is a commercial/legal interaction and thus grouped as a certain method of organizing human interactions and/or a mental process (see above notations). Thus, the claim recites an abstract idea. See MPEP §2106.04(a).
Step 2A – Prong 2: Can the Judicial Exception Recited be integrated into a practical application
Limitations that are indicative of integration into a practical application:
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
Limitations that are not indicative of integration into a practical application:
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)
This judicial exception is not integrated into a practical application because image sensor, processor, and non-transitory computer readable medium are merely generically recited computer elements that do not add a meaningful limitation to the abstract idea because they amount to simply the abstract idea on a generic computer. Accordingly, alone and in combination, these 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. See Specification [0037] discussing the multiple types of generic imagining sensors that could be used. The claim is directed to an abstract idea.
Step 2B – Significantly More Analysis
The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because, when considered separately and in combination the image sensor, processor, and non-transitory computer readable medium amounts to no more than mere instructions to apply the exception using a generic computer component. Mere instructions to apply an exception using a generic computer component cannot provide an inventive concept. Thus, claims 21, 38, and 39 are not patent eligible.
Dependent claims 22-37 fail to provide additional elements that are sufficient to amount to significantly more than the judicial exception. The dependent claims include additional elements such as wireless communication device, cell phone, tablet, handheld scanner, and network enabled camera; which are considered as mere instructions to apply the exception using a generic computer component. Therefore, claims 2-7, 9-15, and 17-20 are rejected for the same reasons as stated in the rejection from independent claim from which they depend.
Claim Rejections - 35 USC § 102
5. 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.
6. Claims 21-39 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by U.S. Pat. No. 10,963,704 to Glaser et al. (“Glaser”).
7. With regards to claims 21 (similarly claims 38 and 39), Glaser disclosed the limitations of,
activating an image sensor to automatically record product images in a store (See Col. 7, l. 18- Col. 8, l. 18 discussing the CV monitoring system tracking user interactions with objects.);
detecting in a first automatically recorded image, a first product, wherein the first automatically recorded image is recorded without the customer affirmatively clicking a capture button (See Col. 9, l. 15-22 discussing selecting of an item and Col. 6, l. 9-34 discussing item selection for virtual cart. Examiner is interpreting the field of view of the monitoring system as proximity.);
detecting in a second automatically recorded image, a second product, wherein the second automatically recorded image is recorded without the customer affirmatively clicking the capture button (See Col. 9, l. 15-22 discussing selecting of an item and Col. 6, l. 9-34 discussing item selection for virtual cart. Examiner is interpreting the field of view of the monitoring system as proximity.);
detecting in a third automatically recorded image, a third product, wherein the third automatically recorded image is recorded without the customer affirmatively clicking the capture button (See Col. 9, l. 15-22 discussing selecting of an item and Col. 6, l. 9-34 discussing item selection for virtual cart. Examiner is interpreting the field of view of the monitoring system as proximity.);
determining based on at least one characteristic of the first automatically recorded image, an intent of the customer to purchase the first product (See Col. 9, l. 15-22 discussing returning of an item to the shelf and Col. 6, l. 9-34 discussing item selection for virtual cart. Examiner is interpreting the field of view of the monitoring system as proximity.);
determining based at least in part on proximity of the second product to the image sensor, an intent of the customer not to purchase the second product (See Col. 9, l. 15-22 discussing selecting of an item and Col. 6, l. 9-34 discussing item selection for virtual cart. Examiner is interpreting the field of view of the monitoring system as proximity.);
determining based at least in part on proximity of the third product to the image sensor, an intent of the customer to purchase the third product (See Col. 9 , l. 15-22 discussing selecting of an item and Col. 6, l. 9-34 discussing item selection for virtual cart. Examiner is interpreting the field of view of the monitoring system as proximity.);
associating the first product and the third product with the electronic shopping basket (See Col. 9, l. 15-22 discussing selecting of an item, Col. 2, l. 20-25 discussing the generating or maintaining of a virtual cart during the shopping process based on the selection of items, and Col. 6, l. 9-34 discussing item selection for virtual cart.); and
omitting an association of the second product from the electronic shopping basket (See Col. 9 , l. 15-22 discussing returning of an item to the shelf and Col. 2, l. 20-25 discussing the generating or maintaining of a virtual cart during the shopping process based on the possession/selection of items. Examiner is interpreting returning as omitting the item and lack of possession.).
8. With regards to claims 22, Glaser disclosed the limitations of,
wherein the first automatically recorded image, the second automatically recorded image, the third automatically recorded image are recorded as part of a continuous stream (See Col. 7, l. 42-63 discussing video.).
9. With regards to claims 23, Glaser disclosed the limitations of,
wherein the operations further include interposing a delay between automatically recorded product images (See Col. 7, l. 42-63 discussing periodic static imaging.).
10. With regards to claims 24, Glaser disclosed the limitations of,
wherein the image sensor is part of a wireless communications device of the customer (See Col. 7, l. 42-63 discussing imaging device as a mobile cameras, wearable cameras, or personal computing devices.).
11. With regards to claims 25, Glaser disclosed the limitations of,
wherein the image sensor is included in at least one of a cell phone, a tablet, a handheld scanner, or a network-enabled camera (See Col. 7, l. 42-63 discussing imaging device as a mobile cameras, wearable cameras, or personal computing devices.).
12. With regards to claims 26, Glaser disclosed the limitations of,
wherein the image sensor is activated to automatically record product images in a store captured over substantially an entire shopping event from initial product selection until a time of checkout (See Col. 2, l. 20-25 discussing the generating or maintaining of a virtual cart during the shopping process based on the possession/selection of items through checkout using the monitoring system.).
13. With regards to claims 27, Glaser disclosed the limitations of,
wherein determining the intent of the customer to purchase the first product is also based on relative movement between the image sensor and the first product (See Col. 9 , l. 15-22 discussing returning of an item to the shelf and Col. 2, l. 20-25 discussing the generating or maintaining of a virtual cart during the shopping process based on the possession/selection of items.).
14. With regards to claims 28, Glaser disclosed the limitations of,
wherein determining the intent of the customer to purchase the first product is also based on the first product being maintained in a field of view of the image sensor beyond a time threshold (See Col. 11, l. 35-41 discussing tracking of the items based on time windows.).
15. With regards to claims 29, Glaser disclosed the limitations of,
wherein determining the intent of the customer to purchase the first product is also based on relative movement between the image sensor and the first product and the first product being maintained in a field of view of the image sensor beyond a time threshold and within a distance threshold to the image sensor (See Col. 9 , l. 15-22 discussing returning of an item to the shelf, Col. 11, l. 35-41 discussing tracking of the items based on time windows, and Col. 2, l. 20-25 discussing the generating or maintaining of a virtual cart during the shopping process based on the possession/selection of items. The examiner is interpreting the removal from the cart to the shelf a threshold distance.).
16. With regards to claims 30, Glaser disclosed the limitations of,
wherein an indication of the intent to purchase the first product includes detection by the image sensor of the first product being held by the customer (Col. 2, l. 20-25 discussing the generating or maintaining of a virtual cart during the shopping process based on the possession/selection of items. The examiner is interpreting possession as being held by the customer.).
17. With regards to claims 31, Glaser disclosed the limitations of,
wherein an indication of the intent of the customer to purchase the first product includes detection by the image sensor of the first product being placed in the shopping basket by the customer (Col. 2, l. 20-25 discussing the generating or maintaining of a virtual cart during the shopping process based on the possession/selection of items. The examiner is interpreting possession as being held by the customer.).
18. With regards to claims 32, Glaser disclosed the limitations of,
wherein the intent by the customer not to purchase the second product is determined, at least in part, by the second product being maintained in a field of view of the image sensor for a time period shorter than a time threshold (Col. 2, l. 20-25 discussing the generating or maintaining of a virtual cart during the shopping process based on the possession/selection of items and Col. 12, l. 15-19 discussing the monitoring of baskets.).
19. With regards to claims 33, Glaser disclosed the limitations of,
wherein the intent by the customer not to purchase the second product is determined, at least in part, by the second product being beyond a threshold distance from the image sensor (See Col. 9 , l. 15-22 discussing returning of an item to the shelf and Col. 2, l. 20-25 discussing the generating or maintaining of a virtual cart during the shopping process based on the possession/selection of items. The examiner is interpreting the removal from the cart to the shelf a threshold distance.).
20. With regards to claims 34, Glaser disclosed the limitations of,
where the stream of images is non-interrupted (See Col. 7, l. 42-63 discussing video.).
21. With regards to claims 35, Glaser disclosed the limitations of,
where the stream of images is intermittently continuous (See Col. 7, l. 42-63 discussing video.).
22. With regards to claims 36, Glaser disclosed the limitations of,
further configured to restrict continuous image capture to periods when one or more products are in a field of view (See Col. 8, l. 5-30 discussing capturing when the items are within view.).
23. With regards to claims 37, Glaser disclosed the limitations of,
wherein the first automatically recorded image, the second automatically recorded image, the third automatically recorded image are recorded discontinuously (See Col. 7, l. 42-63 discussing periodic static imaging by multiple imaging devices.).
Response to Arguments
24. Applicant's arguments filed 7/9/2026 have been fully considered but they are not persuasive.
Applicant argues the claims do not recite a judicial exception. Examiner disagrees. Applicant points to all the additional elements as proof that an abstract idea is not claimed. The additional elements are evaluated in Step 2A Prong 2 and Prong 2B. Step 2A Prong 1 provides an evaluation of whether the claim recites a judicial exception (an abstract idea enumerated in the 2019 PEG, a law of nature, or a natural phenomenon). See above analysis. Applicant further argues against mental process grouping by arguing that the “operations” could not practically be performed in the human mind. Examiner disagrees. MPEP §2106.04(a)(2)(III) states “Nor do the courts distinguish between claims that recite mental processes performed by humans and claims that recite mental processes performed on a computer. As the Federal Circuit has explained, "[c]ourts have examined claims that required the use of a computer and still found that the underlying, patent-ineligible invention could be performed via pen and paper or in a person’s mind." Versata Dev. Group v. SAP Am., Inc., 793 F.3d 1306, 1335, 115 USPQ2d 1681, 1702 (Fed. Cir. 2015). See also Intellectual Ventures I LLC v. Symantec Corp., 838 F.3d 1307, 1318, 120 USPQ2d 1353, 1360 (Fed. Cir. 2016) (‘‘[W]ith the exception of generic computer-implemented steps, there is nothing in the claims themselves that foreclose them from being performed by a human, mentally or with pen and paper.’’); Mortgage Grader, Inc. v. First Choice Loan Servs. Inc., 811 F.3d 1314, 1324, 117 USPQ2d 1693, 1699 (Fed. Cir. 2016) (holding that computer-implemented method for "anonymous loan shopping" was an abstract idea because it could be "performed by humans without a computer"). Mental processes recited in claims that require computers are explained further below with respect to point C. ” A person can watch items being added to a cart and track it with pen and paper. See above analysis for a more detailed reason on the abstract elements of the claim. Also, Applicant points to limitations not identified as part of the abstract idea. Applicant argues against organizing human activity by claiming it is not part of the subgrouping. Examiner disagrees. Is not the tracking of goods put into electronic cart sales activity? Again, Applicant tries to argue the additional elements and not the identified abstract idea.
Applicant argues the claims recite a practical application because the additional elements are not merely applying the abstract idea, the claims provide a technical improvement to “functioning of automated checkout technology itself,” and the claims are directed to a partial machine through an ordered combination. Examiner disagrees. As to the first and third arguments, the image sensor and processor do their intended function. MPEP 2106.05(f)(2) states, “Use of a computer or other machinery in its ordinary capacity for economic or other tasks (e.g., to receive, store, or transmit data) or simply adding a general purpose computer or computer components after the fact to an abstract idea (e.g., a fundamental economic practice or mathematical equation) does not integrate a judicial exception into a practical application or provide significantly more.“ A sensor (image sensor) providing (images) its intended data to a computer (processor) to analyze said data is at this point still at the apply it level and not a particular machine. Second as to the second argument, the improvements “user friction, missed scans, and checkout inaccuracies” are not technical improvements but improvements to the abstract idea for business reasons. Further, video monitoring of goods existed and was used prior to the effective filing date, see notice of reference cited. The decision of whether a good is in the basket or not is not a technical improvement as claimed but an abstract idea implemented by generic computer functions.
Applicant argues the claims are significantly more than any judicial exception. Examiner disagrees. Applicant argues Berkheimer. A Berkheimer analysis is not required for additional elements that only apply the abstract idea on a generic computer.
Applicant argues Glaser lacks a proximity-based purchase intent determination. Examiner disagrees. Glaser [Col. 9, l. 15-22] discussing returning of an item to the shelf and [Col. 6, l. 9-34] discussing item selection for virtual cart. Applicant furthers this argument by stating “The Office Action does not identify any disclosure in Glaser in which proximity of a product to an image sensor is used to determine purchase intent or non-purchase intent.” Is camera imaging an item not in proximity to the item? If something is in the field of view of the camera it is in proximity. Applicant’s disclosure does not provide a definition for proximate. Examiner suggest adding clarifying limitations as broadest reasonable interpretation sets no distance measurement to the word proximate.
Applicant argues that “Using one event in Glaser to satisfy two separately recited limitations is not a demonstration that Glaser discloses each limitation, it is hindsight-driven mapping that anticipation doctrine prohibits.” No hindsight is needed. Glaser has the returned to the shelf item removed from the virtual cart, which would mean it is not be purchased.
Applicant argues Glaser use of store infrastructure cameras does not teach the clickless product-detection. Examiner disagrees. In Glaser, customer did not have to click to take a picture because video monitoring was used. Examiner suggest adding more structure and clarifications to the claims.
Applicant argues “ Glaser's core monitoring-alignment functionality supply the missing proximity-based intent determination.” Applicant states “That cross-verification process is categorically different from determining, from product proximity to an image sensor, whether a detected product should be included in or omitted from an electronic shopping basket.” Examiner disagrees. Glaser uses a proximate video monitor to detect the location of an item and then based on the items location adds it to the virtual cart. Examiner suggest adding more structure and clarifications to the claims.
Applicant argues Glaser does not teach the limitations of claim 24 and 25, especially the device of the customer. Examiner disagrees. Glaser [Col. 7, l. 42-63] states “A CV monitoring system 141 will include at least one form of an imaging system that functions to collect image data within the environment. … Alternatively, some or all may be moved, panned, zoomed, or carried throughout the facility in order to acquire more varied perspective views. In one variation, a subset of imaging devices can be mobile cameras (e.g., wearable cameras or cameras of personal computing devices).” Glaser makes no limitation as to who’s image capture device it is. Glaser provides disclosure for any camera in the environment, which can be seen in Glaser [Col. 8, l. 2-4].
Applicant argues Glaser does not teach the limitation of claim 26. Examiner disagrees. Glaser [Col. 2, l. 20-25] discussing the generating or maintaining of a virtual cart during the shopping process based on the possession/selection of items through checkout using the monitoring system. Therefore, the monitoring system is activated when the shopping process is started by the customer and ended through the checkout process.
Applicant argues Glaser does not teach the limitation of claim 28, 29, 32, and 33. Examiner disagrees. The citations do disclose determining customer intent based on distance thresholds and time windows in the determination that customer has returned the item to the shelf.
Examiner maintains position.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. See Notice of References Cited, PTO form 892.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MICHAEL JARED WALKER whose telephone number is (303)297-4407. The examiner can normally be reached Monday-Thursday 9:00 AM -5:00 PM CT.
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/MICHAEL JARED WALKER/Primary Examiner, Art Unit 3627 Michael.walker@uspto.gov
