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 .
Response to Amendment
This Office Action is in response to the Amendment filed on 01/05/2026.
Claims 1, 9, and 15 are currently amended.
Claims 1-20 are currently pending and examined below.
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 is/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 nature phenomenon, or an abstract idea) without significantly more.
Step 1:
Claims 1-20 is/are directed towards a statutory category (i.e., a process, machine, manufacture, or composition of matter) (Step 1, Yes).
Step 2A Prong One:
Claim 1 recites (additional elements underlined):
A computer-implemented method for optimizing electronic content delivery for non-measurable users, the method comprising:
receiving a feature vector for each electronic content impression opportunity among a plurality of electronic content impression opportunities;
receiving a feature vector for each delivered item of electronic content among a plurality of previously-delivered items of electronic content for measurable users;
receiving an in-target indication for each delivered item of electronic content among the plurality of previously-delivered items of electronic content for measurable users;
training, by a machine learning model, a prediction model by associating historical in-target indications with feature vectors for historical content impressions;
estimating, by the trained prediction model, a probability that an electronic content impression opportunity among the plurality of electronic content impression opportunities with a specified feature vector will meet targeting requirements based on the received feature vectors and the received in-target indications;
receiving, via a user input on a user interface, an indication to manually provide a desired in-target rate and the in-target rate;
generating an in-target rate control signal based on a number of total delivered items of electronic content for measurable users and a number of in-target delivered items of electronic content for measurable users, the measurable users being a subset of all users receiving the electronic content;
determining whether the estimated probability is greater than the in-target rate control signal;
receiving, via an updated user input on the user interface, an indication to automatically determine an updated in-target rate;
automatically determining, by the trained prediction model, the updated in-target rate; and
generating a bid allocation signal for delivering a new item of electronic content for the electronic content impression opportunity among the plurality of electronic content impression opportunities based on the automatic determination.
Under the broadest reasonable interpretation, the limitations outlined above that describe or set forth the abstract idea, cover performance of the limitations in the mind but for the recitation of generic computer(s) and/or generic computer component(s). That is, other than reciting the additional elements identified below, nothing in the claim precludes the limitations from practically being performed in the mind. These limitations are considered a mental process because the limitations include an observation, evaluation, judgment, and/or opinion. These limitations are also similar to “collecting information, analyzing it, and displaying certain results of the collection and analysis” and/or “collecting and comparing known information” which were determined to be mental processes in MPEP 2106.04(a)(2)(III)(A). The Examiner notes that “[c]laims can recite a mental process even if they are claimed as being performed on a computer” (see MPEP 2106.04(a)(2)(III)(C)). The mere nominal recitation of the additional elements identified above do not take the claims out of the mental process grouping. Therefore, the claim recite a mental process (Step 2A Prong One, Yes).
The Examiner notes that paragraph 37 of the Specification states that “the term ‘impression’ may refer to an instance of providing or delivering of content within an online campaign. Such content may include, but is not otherwise limited to images, audio, video, advertisements, or advertising content.” Therefore, the limitations outlined above also describe or set forth an advertising/marketing activity. Advertising/marketing fall within the certain method of organizing human activity enumerated grouping of abstract ideas. The limitations outlined above also describe or set forth a fundamental economic principle or practice because advertising/marketing is related to commerce and economy, and a commercial interaction (e.g., advertising, marketing or sales activities or behaviors, business relations). The limitations outlined above also describe or set forth the managing of personal behavior or relationships or interactions between people. Therefore, the claim recites a certain method of organizing human activity (Step 2A Prong One, Yes).
The limitations outlined above that describe or set forth the abstract idea are also considered a mathematical concept at least because at least the limitations “receiving a feature vector …,” “receiving an in-target indication …,” “… a prediction model by associating historical in-target indications with features vectors for historical content impressions,” “estimating… a probability …,” “generating an in-target rate control signal based on a number of total delivery items of … content for measurable users and a number of in-target delivered items of … content for measurable users,” “determining whether the estimated probability is greater than the in-target rate control signal,” and “… determine an updated in-target rate” are similar to “organizing information and manipulating information through mathematical correlations” which was determined to be a mathematical concept in MPEP 2106.04(a)(2)(II). Therefore, the claim recites a mathematical concept (Step 2A Prong One, Yes).
Step 2A Prong Two:
In Step 2A Prong Two, the additional element(s) outlined above are recited at a high level of generality, and under the broadest reasonable interpretation, are generic computer(s) and/or generic computer component(s) that perform generic computer functions. The additional element(s) are merely used as tools, in their ordinary capacity, to perform the abstract idea. The additional element(s) amount adding the words “apply it” with the judicial exception. Merely implementing an abstract idea on generic computer(s) and/or generic computer component(s) does not integrate the judicial exception similar to how the recitation of the computer in the claim in Alice amounted to mere instructions to apply the abstract idea of intermediated settlement on a generic computer. The Examiner notes that “the use of generic computer elements like a microprocessor or user interface do not alone transform an otherwise abstract idea into patent eligible subject matter" (see pp 10-11 of FairWarning IP, LLC. v. Iatric Systems, Inc. (Fed. Cir. 2016)). The additional elements also amount to generally linking the use of the abstract idea to a particular technological environment or field of use (e.g., in a computer environment). The courts have found that simply limiting the use of the abstract idea to a particular environment does not integrate the judicial exception into a practical application. Viewing the limitations as an ordered combination does not add anything further than looking at the limitations individually. There is no indication that the combination of elements improves the functioning of a computer, improves any other technology or technical field, applies or uses the judicial exception to effect a particular treatment or prophylaxis for disease or medical condition, applies the judicial exception with, or by use of a particular machine, effects a transformation or reduction of a particular article to a different state or thing, or applies or uses 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 claims as a whole is more than a drafting effort designed to monopolize the exception. Their collective functions merely provide generic computer implementation (Step 2A Prong Two, No).
Step 2B:
In Step 2B, the additional elements of also do not amount to significantly more for the same reasons set forth with respect to Step 2A Prong Two. The Examiner notes that revised Step 2A Prong Two overlaps with Step 2B, and thus, many of the considerations need not be reevaluated in Step 2B because the answer will be the same. Viewing the limitations as an ordered combination does not add anything further than looking at the limitations individually. Their collective functions merely provide generic computer implementation (Step 2B, No).
Claims 2-8 recite further limitations that also fall within the same abstract ideas identified above with respect to claim 1 (i.e., mathematical concepts, certain methods of organizing human activities and/or mental processes).
Claim 2-3, 5, and 7-8 recite the additional element “electronic”. Claim 6 recites the additional elements “device” and “hashed email”. However, these additional elements also do not integrate the judicial exception into a practical application or amount to significantly more because they amount to adding the words “apply it” with the judicial exception, mere instructions to implement the idea on a computer, merely using a computer as a tool to perform an abstract idea, and generally linking the use of the judicial exception to a particular technological environment or field of use.
Claim 4 does not recite any other additional elements. Therefore, for the same reasons explained above with respect to claim 1, claim 4 also does not integrate the judicial exception into a practical application or amount to significantly more.
Claim 9 recites substantially similar limitations as claim 1. Therefore, for the same reasons explained above with respect to claim 1, claim 9 also recites an abstract idea in Step 2A Prong One (i.e., mathematical concept, certain method of organizing human activities, and mental processes). Claim 9 recites the additional elements “A system …, the system comprising: a data storage device storing instructions for ... in an electronic storage medium; and a processor configured to execute the instructions to”, “electronic”, “training, by a machine learning model”, “trained”, “on a user interface”, “on the user interface”, “automatically”, and “automatic”. However, for the same reasons explained above with respect to claim 1, these additional elements also do not integrate the judicial exception into a practical application or amount to significantly more.
Claims 10-14 recite further limitations that also fall within the same abstract ideas identified above with respect to claim 9 (i.e., mathematical concepts, certain methods of organizing human activities and/or mental processes).
Claim 10 recites the additional elements “wherein the system is further configured for” and “electronic”. Claims 11-12 and 14 recite the additional element “electronic”. Claim 13 recites the additional elements “device” and “hashed email”. However, these additional elements also do not integrate the judicial exception into a practical application or amount to significantly more because they amount to adding the words “apply it” with the judicial exception, mere instructions to implement the idea on a computer, merely using a computer as a tool to perform an abstract idea, and generally linking the use of the judicial exception to a particular technological environment or field of use.
Claim 15 recites substantially similar limitations as claim 1. Therefore, for the same reasons explained above with respect to claim 1, claim 15 also recites an abstract idea in Step 2A Prong One (i.e., mathematical concept, certain method of organizing human activities, and mental processes). Claim 15 recites the additional elements “A non-transitory machine-readable medium storing instructions that, when executed by a computing system, causes the computing system to”, “electronic”, “training, by a machine learning model”, “trained”, “on a user interface”, “on the user interface”, “automatically”, and “automatic”. However, for the same reasons explained above with respect to claim 1, these additional elements also do not integrate the judicial exception into a practical application or amount to significantly more.
Claims 16-20 recite further limitations that also fall within the same abstract ideas identified above with respect to claim 15 (i.e., mathematical concepts, certain methods of organizing human activities and/or mental processes).
Claims 16-18 and 20 recite the additional element “electronic”. Claim 19 recites the additional element “device” and “hashed email”. However, these additional elements also do not integrate the judicial exception into a practical application or amount to significantly more because they amount to adding the words “apply it” with the judicial exception, mere instructions to implement the idea on a computer, merely using a computer as a tool to perform an abstract idea, and generally linking the use of the judicial exception to a particular technological environment or field of use.
Prior Art
The Examiner notes that after an exhaustive search on the claims, the claims currently overcome prior art. The closest prior art found to date are the following:
Goksel et al. (US 2019/0205919 A1) discloses systems and methods for developing and optimizing target audiences by analyzing consumption patterns of known users, and assigning user characteristics probability scores to anonymous users based on their patterns.
Els et al. (US Patent No. 10,282,758 B1) discloses methods and systems for controlling a pace of purchasing online advertisements in real-time bidding (RTB) environments.
Karlsson et al. (US 2018/0158095 A1) discloses systems and methods for allocating bids for providing content within a segmented campaign which is controlled to ensure that an event rate associated with the provided content meets or exceeds a threshold rate. A campaign-level event rate, associated with the provided content, is estimated and provided as a feedback signal. This feedback signal is employed to dynamically update bid allocations for each of the segments, which in turn varies the number or rate of provided impressions and events. Such feedback enables the control of the campaign-level rate and ensures that the campaign-level rate meets or exceeds the rate threshold.
Response to Arguments
Applicant's arguments filed 01/05/2026 have been fully considered but they are not persuasive. In the Remarks, Applicant argues:
Argument A: “Similarly, the steps of the independent claims could not, as a practical matter, be performed entirely in a human mind.”
In response, the Examiner respectfully disagrees. As explained on pages 5 and 10 of the PTAB decision mailed on 07/22/2025, “we find the steps of ‘receiving a feature vector,’ ‘receiving an in-target indication,’ ‘receiving a desired in-target rate,’ ‘generating an in-target rate,’ ‘determining …the estimated probability’ and others constitute ‘analyzing information by steps people go through in their minds, or by mathematical algorithms, without more, as essentially mental processes within the abstract-idea category. […] We agree with the Examiner’s determination that the claim recites a mental process. […] We agree with the Examiner that the steps of ‘receiving a feature vector’ and ‘estimating a probability’ are similar to collecting information and analyzing information which involves observation, evaluation and judgment which are mental processes performable in the human mind.”
Argument B: “Additionally, it is impossible to mentally perform the step of ‘training, by a machine learning model, a prediction model by associating historical in-target indications with feature vectors for historical content impressions.”
In response, the Examiner respectfully disagrees. Excluding the additional element “training, by a machine learning model”, this limitation can be practically performed in the human mind because it is considered an observation, evaluation, judgment, and/or opinion; a certain method of organizing human activity because it relates to advertising/marketing; and a mathematical concept because this limitation uses a prediction model by associating historical in-target indications with feature vectors for historical content impressions which is similar to “organizing information and manipulating information through mathematical correlations” which was determined to be a mathematical concept in MPEP 2106.04(a)(2)(II).
Argument C: “The claims do not actually recite steps that count as mathematical concepts for Section 101 purposes”.
In response, the Examiner respectfully disagrees. As explained on pages 5 and 10 of the PTAB decision, “[w]e are also not persuaded of error on part of the Examiner by Appellant’s argument that the claims do not recite a mathematical concept […]. [T]he step of estimating a probability surely is a mathematical step clearly placing the claims in the mathematical concept category.” The claims as amended still recite mathematical concepts as explained above.
Argument D: “In fact, none of the limitations of the claims include fundamental economic principles or practices such as hedging, insurance, or mitigating risk. Rather, the claims recite limitations describing a specific and particular manner to optimize electronic content delivery for non-measurable users including ‘training, by a machine learning model, a prediction model by associating historical in-target indications with feature vectors for historical content impressions. Moreover, none of the limitations of the claims recite ‘agreements in the form of contracts, legal obligations, advertising, marketing or sales activities or behaviors, or business relations,’ and thus fail to recite commercial or legal interactions. Additionally, none of the limitations of the claims recite steps for managing personal behavior including social activities, teaching, and following rules or instructions.”
In response, the Examiner respectfully disagrees. As explained above, paragraph 37 of the Specification states that “the term ‘impression’ may refer to an instance of providing or delivering of content within an online campaign. Such content may include, but is not otherwise limited to images, audio, video, advertisements, or advertising content.” Therefore, the limitations outlined above also describe or set forth an advertising/marketing activity. Advertising/marketing fall within the certain method of organizing human activity enumerated grouping of abstract ideas. The limitations outlined above also describe or set forth a fundamental economic principle or practice because advertising/marketing is related to commerce and economy, and a commercial interaction (e.g., advertising, marketing or sales activities or behaviors, business relations). The limitations outlined above also describe or set forth the managing of personal behavior or relationships or interactions between people. Therefore, the claim recites a certain method of organizing human activity (Step 2A Prong One, Yes). Furthermore, page 6 of the PTAB decision states “we find that the claims recite the abstract ideas of a certain method of organizing human activity, a mental process and a mathematical concept.” Therefore, the claims as currently amended still recite an abstract idea in Step 2A Prong One.
Argument E: “The specification of the present application identifies a technological problem
resulting from conventional methods delivering online content.. Specifically, paragraph 2 explains, "online content providers have traditionally measured the behavior and attributes of individual users through the use of mechanisms such as cookies, tracking pixels in images, etc., for example, to improve the "in-target" rate of delivered impressions. However, the use of such mechanisms may be less available to online content providers in view of, for example, an increased ability of users to opt-out of such mechanisms, desire to allow users to expressly opt-in to such mechanisms, and so on. That is, online content providers face a need to measure and optimize the efficiency of an online content campaign even when the behavior of many users is less measurable." The specification then proceeds to describe a technological solution to this technological problem that is integrated into the independent claims as amended. For example, paragraph [0080] of the Specification discloses how a machine learning model
may be utilized to determine an in-target rate”. Therefore, the independent claims, as a whole, reflect an improvement to the technological field of electronic content delivery for non-measurable users (e.g., the
improvement described in the specification), and thus are integrated into a practical application.”
In response, the Examiner respectfully disagrees. Similar to the claimed invention in SAP America Inc. v. InvestPic LLC (Fed. Cir. 2018), the advance here lies entirely in the realm of the abstract idea (i.e., improved advertising/marketing activity), with no plausibly alleged innovation in the non-abstract application realm. “It is important to note, the judicial exception alone cannot provide the improvement” (MPEP 2106.05(a)).
Argument F: “Applicant respectfully asserts that the above-described specific and particular manner to train a machine learning model to optimize electronic content delivery for non-measurable users, is not well-understood, routine, or conventional activity, but rather is significantly more than an abstract idea. Specifically, rather than reciting the general concept of a solution, the amended independent claims recite with particularity how such a solution would be effected. See, e.g., the cited portions of amended claim 1 above. The particular training of the machine learning model, and then the particular use of that model amount to significantly more than mere managing of personal behavior or relationships or interactions. Therefore, even if the claims are found to recite an abstract idea under Step 2A, the particulars of the features recited in the amended claims nonetheless transform the nature of the claims into a patent-eligible application under Step 2B, and thus qualify as eligible subject matter.”
In response, the Examiner respectfully disagrees. First, the Office Action does not take the position that any of the additional elements amount to adding insignificant extra-solution activity in Step 2A Prong Two that would require an analysis in Step 2B to determine that the additional element also amounts to simply appending well-understood, routine, and conventional activity. The Examiner notes that revised Step 2A Prong Two overlaps with Step 2B, and thus, many of the considerations need not be reevaluated in Step 2B because the answer will be the same.
Second, “a specific way of achieving a result is not a stand-alone consideration in Step 2A Prong Two” (MPEP 2106.04(d)). Unlike in McRO in which the claimed invention allowed computers to produce accurate and realistic lip synchronization and facial expression in animated characters that previously could only be performed by human animators which provided an improvement to an existing technological process, here looking at the limitations as an ordered combination adds nothing that is not already present when looking at the elements taken individually. There is no indication that the combination of elements improves the functioning of a computer or improve any other technology. Their collective functions merely provide generic computer implementation. The specification fails to provide a teaching about how the claimed invention improves a computer or other technology, nor do the claims recite a particular solution to a problem or a particular way to achieve a desired outcome defined by the claimed invention. The claims merely use the computer as a tool instead of an improved computer capability. “Use of a computer or other machinery in its ordinary capacity for economic or other task (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” (MPEP 2106.05(f)(2)).
Therefore, the claims as currently amended still do not integrate the judicial exception into a practical application or amount to significantly more.
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.
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/SAM REFAI/Primary Examiner, Art Unit 3681