The oral argument of the day comes from the recent appeal to the Federal Circuit in In re Sorensen. This was an appeal of a §101 rejection in ex parte prosecution.
The claim at issue is pretty long. Claim 1 recites:
1. A system for analyzing shopper behavior within a store, the system comprising:
a sensor system configured to:
for each of a plurality of a first group of shopper trips in the store,
detect a wireless signal for a shopper proxy device adjacent an entrance to the store;
detect a wireless signal for the shopper proxy device adjacent an exit of the store;
a data analyzer computing device configured to:
determine a trip length for each shopper based on a time between the detected presence of the detected wireless signal at the entrance and the detected presence of the detected wireless signal at the exit of the store;
determine a total number of shopper trips by multiplying a number of the detected wireless signals by a calibration factor, the calibration factor determined based on image data of the entrance and exit captured by one or more cameras, and the calibration factor relating a number of actual shoppers observed in the image data during a calibration period;
calculate a first relationship that is a distribution of the determined trip lengths over the number of shopper trips and trip length;
determine an average trip length based on the distribution of the first relationship;
for each of a plurality of a second group of shopper trips in the store,
receive transaction data for a plurality of purchase transactions at the store, and transaction data for a plurality of items, the transaction data for the plurality of purchase transactions including a number of items purchased for each purchase transaction;
calculate a second relationship that is a distribution of items purchased in the purchase transactions over the shopper trips;
determine an average number of items purchased based on the distribution of the second relationship;
wherein the sensor system is further configured to:
detect current wireless signals in the store; and
wherein the data analyzer computing device is further configured to:
determine a current total number of shoppers in the store by multiplying the detected current wireless signals by the calibration factor;
determine a number of items to be purchased by the current number of shoppers by multiplying the average number of items purchased by the current total number of shoppers;
wherein the system further comprises an alert device to signal for deploying an in-store service, the alert device being configured to signal that the in-store service be deployed in response to one or both of:
the data analyzer computing device determining that the total number of shoppers exceeds a first predetermined threshold, in which case the alert device is configured to signal for deploying the in-store service after a predetermined period of time following detection that the current number of shoppers exceeds the first predetermined threshold, the predetermined period of time being equal in duration to the average trip length, and
the data analyzer computing device estimating that the number of items to be purchased by the current total number of shoppers exceeds a second predetermined threshold, in which case the alert device is configured to signal for deploying the in-store service after the predetermined period of time following detection that the number of items to be purchased by the current total number of shoppers exceeds the second predetermined threshold.
The claim is also reproduced in the opinion by the PTAB here:
If you were curious how this claim compares to the claim in Electric Power Group, the claim in Electric Power Group had 395 words while the claim above has 535 words.
As you’ll see from the PTAB decision, the only issue on appeal was 35 U.S.C. §101. Apparently, a §103 rejection had been made during prosecution and was later withdrawn by the examiner.
The Federal Circuit panel was comprised of Judges Newman, O’Malley, and Taranto.
Judge O’Malley first asked if the Office’s position was that any application directed to organizing human activity would be unpatentable:
Judge Newman had a couple of interesting sound bites during the oral argument. My sense from her comments is that she would like to see the Office provide more citations of references when making §101 rejections.
You can listen to the entire oral argument here: