DETAILED ACTION
Status of Claims
This is a non-final office action on the merits in response to the supplemental arguments and/or amendments filed on 11 February 2026 and the request for continued examination filed on 5 January 2026.
Claim(s) 14 and 15 is/are canceled. Claim(s) 1, 19 is/are amended. Claim(s) 22-25 is/are new.
Claim(s) 1-11, 16-20, and 22-25 is/are currently pending and have been examined.
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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submissions filed on 5 January 2026 and 11 February 2026 have been entered.
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 1-11 and 16-20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
Claim 1 recites
wherein the optimal policy includes optimizing a personalized frequency to maximize a number of rewards received from the user in a manner that does not result in disengagement of the user, and
wherein the action is executed by a multi-layered gate for the user, the multi-layered gate comprising a plurality of gates including a coarse gate that makes decisions on a coarse grained level and a fine-grained gate that makes decisions taking individual-level features into account such that at each stage the audience size is reduced, wherein a final gate status is a product of individual gate statuses from the plurality of gates;
wherein only communications at the time interval by at least opening the
the determining the optimal times includes selecting a combination of the time intervals to maximize engagement over the particular time period by selecting most effective intervals based on the historical data; and
updating the probability of engagement based on newly received data including performing a comparison of an output of the
The preceding recitation of the claim has had strikethroughs applied to the additional elements beyond the abstract idea to more clearly demonstrate the limitations setting forth the abstract idea. The remaining limitations describe a concept of receiving and analyzing data relating to a content campaign to determine a distribution strategy and distributing content according to the determined strategy, which is unambiguously a marketing or advertising activity. As such, these limitations clearly set forth a method of organizing human activity. Therefore the claims are determined to recite an abstract idea.
MPEP 2106, reflecting the 2019 PEG, directs examiners at Step 2A Prong Two to consider whether the additional elements of the claims integrate a recited abstract idea into a practical application.
Claim 1 recites the additional element of a system, comprising a processor and an engine. These limitations are recited at an extreme level of generality, and are interpreted as a generic computing device used to implement the abstract idea. Per MPEP 2106.05(f), implementing an abstract idea on a generic computing does not integrate an abstract idea into a practical application in Step 2A Prong Two, similar to how the recitation of the computer in the claim in Alice amounted to mere instructions to apply the abstract idea on a generic computer. As such, this additional element does not integrate the abstract idea into a practical application.
The claim further recites the additional element of a reinforcement learning model which performs many steps of the abstract idea and uses reinforcement learning techniques. At the level of generality with which this element is recited, it may be interpreted as nothing more than an instruction to implement the abstract idea with a computing device. As previously noted, per MPEP 2106.05(f), implementing an abstract idea on a generic computing does not integrate an abstract idea into a practical application in Step 2A Prong Two, similar to how the recitation of the computer in the claim in Alice amounted to mere instructions to apply the abstract idea on a generic computer. As such, this additional element does not integrate the abstract idea into a practical application.
Claim 1 further recites the additional element of digital data. However, this additional element reflects no improvement to technology, no particular device, and does not effect a transformation of an article. Further, this additional element does not meaningfully limit the implementation of the claims. Instead, this additional element, individually and in combination with the prior computing device, only generally links the abstract idea to a technological environment of a computing device. As such, this additional element, individually and in combination with the prior additional element, does not integrate the abstract idea into a practical application.
Claim 1 further recites the additional element of electronic communications and sending communications to a computing device. This additional element reflects no improvement to technology, no particular machine, no transformation of an article, and does not meaningfully limit the implementation of the abstract idea. Instead, this additional element only generally links the abstract idea to networked computing environment. As such, this additional element does not integrate the abstract idea into a practical application.
Claim 1 further recites the additional element of updating the reinforcement learning model. The generic requirement to update a machine learning model does not impose a meaningful limit on the claim and is interpreted as insignificant extra-solution activity. As such, this additional element does not integrate the abstract idea into a practical application.
There are no further additional elements. When considered as a combination, the additional elements only generally link the abstract idea and insignificant extra-solution activity to a networked computing environment. As such, the combination of additional elements does not integrate the abstract idea into a practical application. Therefore the claims are determined to be directed to an abstract idea.
At Step 2B of the Mayo/Alice analysis, the additional elements are considered for whether they amount to significantly more than the abstract idea.
As previously noted, the claims recite additional elements which may be interpreted as generic computing devices used to implement the abstract idea. However, per MPEP 2106.05(f), implementing an abstract idea on a generic computing does not add significantly more in Step 2B, similar to how the recitation of the computer in the claim in Alice amounted to mere instructions to apply the abstract idea on a generic computer. Additionally, Examiner notes that Koshizen et al. (US 2006/0155660 A1) demonstrates (“conventional reinforcement learning scheme” [0075]) that reinforcement learning was conventional long before the priority date of the claimed invention. As such, these additional element do not amount to significantly more.
As previously noted, the claims recite the additional element of digital data. However, as noted before, this additional element, individually and in combination, only generally links the abstract idea to a technological environment involving a computing device. Per MPEP 2106, the courts have found generally linking an abstract idea to a technological environment to not be enough to qualify as significantly more. Thus this additional element does not amount to significantly more.
As previously noted, the claims recite an additional element of electronic communications and sending communications to a computing device. However, Brunson (US 5647002) demonstrates (“As is conventional, the e-mail system 29 includes an e-mail server 20, such as a host processor, that serves a plurality of e-mail user terminals 26, such as personal computers”. See at least Column 4, Lines 51-54) that sending electronic communications to computing devices was conventional long before the priority date of the claimed invention. As such this additional element does not amount to significantly more.
As previously noted, the claims recite the additional element of updating the reinforcement learning model. Koshizen et al. (US 2006/0155660 A1) demonstrates (“In conventional reinforcement learning scheme, optimal control is acquired through try and error process of a control system” [0075]) that updating a reinforcement learning model based on new data was conventional long before the priority date of the claimed invention. This reinforces the interpretation of this limitation as only providing insignificant extra-solution activity, and as such it does not amount to significantly more.
There are no further additional elements. When considered as a combination, the additional elements only generally link the abstract idea and insignificant extra-solution activity to a networked computing environment. As such, the combination of additional elements does not mount to significantly more than the judicial exception. Thus independent claim 1 is not patent eligible.
Dependent claims 2-11, 16, and 18-20 further narrow the abstract idea, but the claims continue to recite an abstract idea. These claims recite no further additional elements. The previously identified additional elements, individually and as a combination, do not integrate the narrowed abstract idea into a practical application for the same reasons as explained above. Therefore these claims continue to be directed to an abstract idea. The previously identified additional elements, individually and as a combination, do not amount to significantly more than the narrowed abstract idea the same reasons as explained above. Dependent claim 17 recites the additional element of a neural network. However, this additional element is interpreted may be interpreted as implementing the abstract idea with a computing device. As such this additional element, individually and in combination with the prior additional elements, does not integrate the abstract idea into a practical application. Additionally, Examiner notes that one of ordinary skill in the art understands Deep Q-learning to be a neural network based reinforcement learning technique, and that Schaul et al. (US 2017/0140269 A1) demonstrates (“a conventional reinforcement learning technique, e.g., … deep Q-learning, or double deep Q-learning” [0065]) that such techniques were conventional before the priority date of the claimed invention. This additional element, individually and in combination with the prior additional elements, does not amount to significantly more than the abstract idea. Thus as the dependent claims remain directed to a judicial exception, and as the additional elements of the dependent claims do not amount to significantly more, the dependent claims of claim 1 are not patent eligible.
Claims 22-25 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
Claim 22 recites
receive
receive a catalog of campaigns;
receive
determine, for actions comprising sending one of the available campaigns or abstaining from sending, a total expected future number of positive rewards at the given point in time, the total expected future number of positive rewards calculated by weighing a value of sending an immediate campaign against a possibility of adversely impacting a user state;
select users who should receive
output identifiers of the selected users; and
receive the identifiers of the selected users
create
transmit the created
The preceding recitation of the claim has had strikethroughs applied to the additional elements beyond the abstract idea to more clearly demonstrate the limitations setting forth the abstract idea. The remaining limitations d describe a concept of receiving and analyzing data relating to a content campaign to determine a distribution strategy and distributing content according to the determined strategy, which is unambiguously a marketing or advertising activity. As such, these limitations clearly set forth a method of organizing human activity. Therefore the claims are determined to recite an abstract idea.
MPEP 2106, reflecting the 2019 PEG, directs examiners at Step 2A Prong Two to consider whether the additional elements of the claims integrate a recited abstract idea into a practical application.
Claim 22 recites the additional element of a system comprising a processor and an engine. This limitation is recited at an extreme level of generality, and may reasonably be interpreted as a generic computing device used to implement the abstract idea. Per MPEP 2106.05(f), implementing an abstract idea on a generic computing does not integrate an abstract idea into a practical application in Step 2A Prong Two, similar to how the recitation of the computer in the claim in Alice amounted to mere instructions to apply the abstract idea on a generic computer. As such, this additional element does not integrate the abstract idea into a practical application.
Claim 22 further recites the additional element of a reinforcement learning model which performs many steps of the abstract idea. At the level of generality with which this element is recited, it may be interpreted as nothing more than an instruction to implement the abstract idea with a computing device. As previously noted, per MPEP 2106.05(f), implementing an abstract idea on a generic computing does not integrate an abstract idea into a practical application in Step 2A Prong Two, similar to how the recitation of the computer in the claim in Alice amounted to mere instructions to apply the abstract idea on a generic computer. As such, this additional element does not integrate the abstract idea into a practical application.
Claim 22 further recites the additional element of digital data. However, this additional element reflects no improvement to technology, no particular device, and does not effect a transformation of an article. Further, this additional element does not meaningfully limit the implementation of the claims. Instead, this additional element, individually and in combination with the prior computing device, only generally links the abstract idea to a technological environment of a computing device. As such, this additional element, individually and in combination with the prior additional element, does not integrate the abstract idea into a practical application.
Claim 22 further recites the additional element of electronic communications and sending communications to a computing device. This additional element reflects no improvement to technology, no particular machine, no transformation of an article, and does not meaningfully limit the implementation of the abstract idea. Instead, this additional element only generally links the abstract idea to networked computing environment. As such, this additional element does not integrate the abstract idea into a practical application.
There are no further additional elements. When considered as a combination, the additional elements only generally link the abstract idea to a networked computing environment. As such, the combination of additional elements does not integrate the abstract idea into a practical application. Therefore the claims are determined to be directed to an abstract idea.
At Step 2B of the Mayo/Alice analysis, the additional elements are considered for whether they amount to significantly more than the abstract idea.
As previously noted, the claims recite additional elements which may be interpreted as generic computing devices used to implement the abstract idea. However, per MPEP 2106.05(f), implementing an abstract idea on a generic computing does not add significantly more in Step 2B, similar to how the recitation of the computer in the claim in Alice amounted to mere instructions to apply the abstract idea on a generic computer. Additionally, Examiner notes that Koshizen et al. (US 2006/0155660 A1) demonstrates (“conventional reinforcement learning scheme” [0075]) that reinforcement learning was conventional long before the priority date of the claimed invention. As such, these additional element do not amount to significantly more.
As previously noted, the claims recite the additional element of digital data. However, as noted before, this additional element, individually and in combination, only generally links the abstract idea to a technological environment involving a computing device. Per MPEP 2106, the courts have found generally linking an abstract idea to a technological environment to not be enough to qualify as significantly more. Thus this additional element does not amount to significantly more.
As previously noted, the claims recite an additional element of electronic communications and sending communications to a computing device. However, Brunson (US 5647002) demonstrates (“As is conventional, the e-mail system 29 includes an e-mail server 20, such as a host processor, that serves a plurality of e-mail user terminals 26, such as personal computers”. See at least Column 4, Lines 51-54) that sending electronic communications to computing devices was conventional long before the priority date of the claimed invention. As such this additional element does not amount to significantly more.
There are no further additional elements. When considered as a combination, the additional elements only generally link the abstract idea to a networked computing environment. As such, the combination of additional elements does not mount to significantly more than the judicial exception. Thus independent claim 22 is not patent eligible.
Dependent claims 23-25 further narrow the abstract idea, but the claims continue to recite an abstract idea. These claims recite no further additional elements. The previously identified additional elements, individually and as a combination, do not integrate the narrowed abstract idea into a practical application for the same reasons as explained above. Therefore these claims continue to be directed to an abstract idea. The previously identified additional elements, individually and as a combination, do not amount to significantly more than the narrowed abstract idea the same reasons as explained above. Thus as the dependent claims remain directed to a judicial exception, and as the additional elements of the dependent claims do not amount to significantly more, the dependent claims of claim 22 are not patent eligible.
Response to Arguments
Applicant’s Argument Regarding 112(a) Rejections of claims 1-11 and 14-20: Applicant has removed both disputed limitations in their entirety.
Examiner’s Response: Applicant's amendments filed 11 February 2026 have been fully considered and they resolve the identified issue. The rejections under 112(a) are withdrawn.
Applicant’s Argument Regarding 101 Rejections of claims 1-11 and 14-20:
There is a meaningful distinction between (a) a person deciding not to send a letter, and (b) a system control that prevents the machine from generating the letter in the first place.
The former is a human decision… The latter is a machine-control mechanism that governs whether a computing process is allowed to execute at all. … Taken together, these limitations describe a computing system that internally controls whether its own message-generation process is allowed to proceed. This is the functional equivalent of controlling whether the printing press turns on—not deciding what the printing press should print.
The claims do not recite marketing strategies, advertise content decisions, audience selection criteria, or any of the business judgements that characterize marketing activity.
A person cannot maintain binary state variables, compute products of gate outputs, or enforce pre-creation filtering. … A person could decide not to send a letter, but a person does not set a binary gate status that is then queries at audience-generation time by a separate engine to determine whether to execute a message-generation process.
The most significant additional element in amended claim 1 and new claim 22 is the pre-creation filtering mechanism: “only electronic communications that will be sent to a recipient are created by the electronic communications engine such that users who should not get electronic communications in the first place are not selected.” This limitation does not recite a business decision about whom to target. It recites a system-architecture constraint: the electronic communications engine is configured so that it does not execute the message-creation process for users who have been determined to be ineligible.
This is a concrete improvement to the functioning of the computer system.
Amended claim 1 recites that the electronic communications engine enforces the optimal frequency by “setting a gate status comprising a binary state of gate open or gate closed that determines at any moment in time if the user is eligible for receiving a communication, wherein at a time of generating an audience for a communication, each user is checked against the gate status, and only users with status gate open are selected.” This recites three concrete technical elements: (1) a binary state variable (the gate status) maintained by the system for each user; (2) a query operation at a defined execution point (audience-generation time); and (3) filtering result determined by the state variable (only “gate open” users pass through). These are machine-specific implementation details that describe how the computing system’s behavior is controlled. They are not marketing decisions.
Amended claim 1 recites that “a final gate status is a product of individual gate statuses from the plurality of gates.” This is a specific computational operation: each gate in the multi-layered pipeline produces a binary output (0 or 1), and the system computes their product to determine final eligibility. If any gate outputs 0 (“closed’), the product is 0, and the user is ineligible. This is a defined, deterministic computation that the system performs—not a vague functional description of filtering. It describes the internal mechanism by which the multi-layered gate architecture produces its output.
Amended claim 1 recites that the system weights “a value of sending an immediate campaign that exhausts the constraint against precluding a sending of another campaign having a higher value.” This is a forward-looking resource allocation computation in which the system evaluates whether consuming one of a limited number of communication slots now would preclude a more valuable use of that slot later. This is structurally analogous to computational resource scheduling problems such as CPU scheduling and cache replacement.
Amended claim 1 recites “wherein the optimal policy includes optimizing a personalized frequency to maximize a number of rewards received from the user in a manner that does not result in disengagement of the user.” This language is drawn from allowed Claim 1 of the parent patent US 11,270,340, which was examined and allowed by the same Examiner. … While each application is examined independently, the allowance of substantively identical language in the same patent family by the same Examiner is entitled to consideration.
This recites a closed-loop feedback mechanism in which the computing system compares its predictions against actual observed outcomes and adjusts its internal model accordingly. This is a specific computational process—not a human activity—that improves the system’s operation over time.
This architecture describes how a computing system internally controls its own operations.
The claims recite the mechanism, not the result.
The pre-creation filtering mechanism is an improvement to how the computing system manages its own resources—it prevents the message-generation process from executing unnecessarily. The binary gate-status enforcement mechanism is an improvement to how the system controls its own operations. The product-of-gates computation is a specific computational mechanism for combining multiple control signals. These are improvements to the computer system’s internal operations.
The August 2025 memorandum instructs that “if it is a ‘close call’ as to whether the claim is eligible, [examiners] should only make rejection when more likely than not (i.e., more than 50%) that claim is ineligible.). … This case is at a minimum a close call.
Examiner’s Response: Applicant's arguments filed 11 February 2026 have been fully considered but they are not persuasive.
Examiner notes that the claims do not recite anything actual analogous to “prevent[ing] the machine from generating” a message where the machine was about to generate such a message but for the intervention of the control system. Instead, the claims recite “wherein only electronic communications that will be sent to a recipient are created by the electronic communications engine such that users who should not get electronic communications in the first place are not selected.” This is merely a restatement of selecting users to receive a communication and sending that communication to selected users. This is analogous to thank-you note writer determining a list of recipients for thank-you notes and writing notes to those included in the list. The list does not prevent the note writer from writing messages to unselected recipients.
The performance of a method of organizing human activity by a generic computing device does not render a claim eligible. Determining whether to distribute content to users in order to optimize rewards and engagement is plainly a method of organizing human activity.
The claim recites a model configured to “dynamically optimize total expected future number of positive rewards at the approximate given point in time based on user-specific and aggregate data … basing actions defined as a minimum time between communications based on (i) type … (ii) the state for the user, including a number of communications clicked for a predetermined period of time, opened for a predetermined period of time, a number of purchases for a predetermined period of time, and a subscription state and (iii) a past outcome including click, no-click, purchase or no purchase for the user … receiving inputs to determine an optimal policy comprising a set of rules for which action to take when the user is in a given state, the action comprises sending one of the available campaigns of abstaining from sending.” Which more concisely describes determining an engagement maximizing plan for whether or not to send content to a user based on the user’s prior interaction with content and whether content resulted in the user making a purchase. One with any skill in the art would undoubtedly understand this as describing as a marketing or advertising activity.
Examiner strenuously disagrees with Applicant’s understanding of the limits of the human mind. “Binary state variable” is an extremely broad term and encompasses any information describing a binary state of an entity. In asserting the claims to be eligible (as opposed to a single alternative, ineligible) Applicant has maintained a binary state variable. Similarly, “compute product of gate outputs” and “enforce pre-creation filtering” are well within the capacity of the human mind.
Examiner disagrees that the limitation does not recite a business decision. It is a ubiquitous business decision to produce materials to send to selected users rather than produce materials for an entire population only to distribute the materials to selected users. For the purposes of the claim, creating messages for users who are selected to receive a message is considered part of the abstract idea. Further, the use of a computer to implement part of an abstract idea does not exclude that part from the abstract idea. Instead, the computer is considered an additional element to the abstract idea, and generally, merely including instructions to implement an abstract idea on a computer does not integrate an abstract idea into a practical application or amount to significantly more.
One of ordinary skill in the art would not consider forgoing the creation of content for users not selected to receive content as a technical improvement. Per MPEP 2106.05(a), “If it is asserted that the invention improves upon conventional functioning of a computer, or upon conventional technology or technological processes, a technical explanation as to how to implement the invention should be present in the specification.” Here, the disclosure does not provide a technical explanation of how to not create content for users that aren’t selected to receive content. This would reinforce one of ordinary skill in the art’s conclusion that the asserted improvement does not constitute a technical improvement.
Contrary to Applicant’s assertion, the identified features encompass marketing decisions. For example, a marketer selecting only male recipients from a list of recipients for receiving marketing content performs operations equivalent to the purportedly concrete technical elements identified by applicant.
Examiner disagrees that the limitation is not “a vague functional description of filtering.” Examiner notes that the gates are not describe in the specification with any meaningful amount of detail. The broadest reasonable interpretation of a “gate” includes any indication of a Boolean data type and the product of the gate statuses is equivalent to determining the truth value of an AND statement. In other words, given an individual, determining an answer to the question “Is this individual male AND a US citizen” reads on gate status product. At this level of generality, this feature is not considered an additional element but rather part of the abstract idea.
While the asserted features may be analogous to CPU scheduling, it is equivalent to managing consumer attention resources in a marketing campaign. As such, this limitation is considered part of the abstract idea.
Applicant is correct that “each application is examined independently.” The present claims under current guidance are directed to an abstract idea without reciting significantly more, and thus are ineligible.
Contrary to Applicant’s assertion, at the level of generality claimed, humans are capable of comparing predictions to actual results and updating their mental models based on the comparison.
The referenced “architecture” is only implied through the functional recitation of a number of steps performed by the computer. Such claim language has been widely recognized since Alice v. CLS Bank in 2014 to present a subject matter eligibility issue. Applicant’s argument appears to be fundamentally contrary to that and subsequent court decisions.
Examiner respectfully notes that the claims very much do describe a “result”. While the claims do incorporate various constraints on how the result is achieved, they rely on a vague invocation of reinforcement learning “to dynamically optimize total expected future number of positive rewards at the approximate given point in time” and “to generate the optimal policy from the digital data and the total expected future number of positive rewards” and “wherein the determined number of electronic communications and the optimal times are determined to maximize values of a value function”. These are not specific mechanisms but desired results.
As previously noted, per MPEP 2106.05(a), “If it is asserted that the invention improves upon conventional functioning of a computer, or upon conventional technology or technological processes, a technical explanation as to how to implement the invention should be present in the specification.” The disclosure does not provide technical explanations of how to implement the identified features. As such, one of ordinary skill in the art would not recognize these features as providing a technical improvement, but rather as the use of existing tools as expected to implement a method of organizing human activity.
Examiner disagrees that the claims constitute a “close call.” The current claims have been evaluated under “preponderance of the evidence” standard, and have been found to recite ineligible subject matter.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Bion A Shelden whose telephone number is (571)270-0515. The examiner can normally be reached M-F, 12pm-10pm EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Kambiz Abdi can be reached at (571) 272-6702. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Bion A Shelden/Primary Examiner, Art Unit 3685 2026-03-06