DETAILED ACTION
This Office action is in reply to correspondence filed 26 August 2026 in regard to application no. 17/749,347. Claims 13-20 have been cancelled. Claims 1-12 and 21-28 are pending and are considered below.
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 .
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 1-12 and 21-28 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more. The claims lie within statutory categories of invention, as each is directed to a method (process), device (machine), or non-transitory machine-readable medium (manufacture). The claims recite receiving data, processing it e.g. by tokenizing (separating phrases into individual words) and removing stop words (e.g. exceptionally common words such as "and" and "the"), selecting a model in no particular matter, assigning a document to a label based on a word-match count, storing the information and selecting an advertisement in no particular manner, generating a model in no particular manner, creating profiles in no particular manner but merely based on the available data, making a prediction, again in no particular manner but based on the available data, sending information, receiving information, combining information, and assigning a label. The point of this is to determine whether a person is likely to change providers for a particular product or service.
First, determining whether a person is likely to switch providers is a fundamental business practice or a commercial interaction, each of which is among the "certain methods of organizing activity" deemed abstract, so the claims recite an abstract idea. Companies that use a subscriber model devote a great deal of time and energy to the problem of customer retention, and did so long before there was any such thing as a computer. Second, this recites human mental activity, another category recognized in our Guidance (cited below) as an abstract idea.
A person can receive documents and, while reading them, customarily (and mentally) tokenizes (this is how just about everyone reads; almost nobody reads an entire paragraph as a whole), and customarily ignores or skims connecting words. A person can read a summary of a book and decide the genre based on the occurrence or frequency of certain words; for example, if the summary contains the word "murder" or anything similar, the reader may presume the book is a murder mystery. A person can store information, mentally or by making notes on paper, and can insert content into other content, e.g. verbally.
A person can determine her own preferences for streaming vs. linear broadcasting, or whether she is likely to change providers, mentally, and can determine someone else's by asking them. Modeling is also something routinely done in the human mind, as it requires nothing more than inference. For example, a person may telephone an agent and say "I'm not sure I enjoy the books you've been sending me", from which the agent may infer a risk of cancellation or the person switching to a new agent. A person can combine documents, e.g. by storing them together in a folder, and can send and receive information, e.g. verbally or via the post. None of this presents any practical difficulty and none requires any technology at all.
This judicial exception is not integrated into a practical application because aside from the bare inclusion of a generic computer, discussed below, nothing is done beyond what was set forth above, which does not go beyond using a generic computer as a tool to implement the abstract idea. See MPEP § 2106.05(f).
As the claims only manipulate text data and information regarding the text data, they do not improve the "functioning of a computer" or of "any other technology or technical field". See MPEP § 2106.05(a). They do not apply the abstract idea "with, or by use of a particular machine", MPEP § 2106.05(b), as the below-cited Guidance is clear that a generic computer is not the particular machine envisioned.
They do not effect a "transformation or reduction of a particular article to a different state or thing", MPEP § 2106.05(c). First, such data, being intangible, are not a particular article at all. Second, the claimed manipulation is neither transformative nor reductive; as the courts have pointed out, in the end, data are still data.
They do not apply the abstract idea "in some other meaningful way beyond generally linking [it] to a particular technological environment", MPEP § 2106.05(e), as the lack of technical and algorithmic detail in the claims is so as not to go beyond such a general linkage.
The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the additional claim limitations, considered individually and as an ordered combination, are insufficient to elevate an otherwise-ineligible claim.
Claim 21, which has the most, includes a processor and a memory storing instructions. These elements are recited at a high degree of generality and the specification is clear, ¶ 75, that nothing more than "general purpose processors" are required, which encompasses one or more generic computers.
They only perform generic computer functions of nondescriptly manipulating data and sharing data with persons and/or other devices. Generic computers performing generic computer functions, without an inventive concept, do not amount to significantly more than the abstract idea. The type of information being manipulated does not impose meaningful limitations or render the idea less abstract.
The claim limitations when considered as an ordered combination - a generic computer performing a possibly chronological sequence of abstract steps - do nothing more than when they are analyzed individually. The other independent claims are simply different embodiments but are likewise directed to a generic computer performing, essentially, the same process.
The dependent claims further do not amount to significantly more than the abstract idea: claims 2, 7-9, 22, 27 and 28 simply recite further output; claims 3, 5, 6, 10-12, 23 and 26 are simply further descriptive of the type of information being manipulated; claims 4 and 24 simply recite further, abstract manipulation of data.
For further guidance please see MPEP § 2106.03 – 2106.07(c) (formerly referred to as the “2019 Revised Patent Subject Matter Eligibility Guidance”, 84 Fed. Reg. 50, 55 (7 January 2019, revised October 2019)).
Response to Arguments
Applicant's arguments filed 26 August 2026 have been fully considered but they are not persuasive. In regard to the argument that “no human can perform model selection on a media corpus at scale in the manner supported by claim 1”, claim 1 does not require selecting more than one model from at least two models. The Examiner does not see, and the applicant does not explain, why selecting one model from a choice of two would present any practical difficulty. Even if it were otherwise, even if the claim required selecting a thousand models or a million models, the courts have consistently held that this is not a basis for statutory patentability, as it is generally known, and has been for many decades, that a typical, general-purpose computer can process large amounts of data quickly compared to humans working with paper records.
The applicant complains that the Examiner has not provided proof, but it is unclear precisely what allegation is supposed to require proof. The only time in which the Examiner is aware that there is an evidentiary requirement within the body of a rejection based on § 101 is when an Examiner asserts that some “additional”, that is, non-abstract claim element is well-understood, routine and conventional. The Examiner did not use that language in the rejection at all, and it is beyond argument that, by the time of the present invention, general-purpose computers were well-understood, routine and conventional, and the Examiner sees no other non-abstract elements in any claim.
Cosine similarity is not used in any independent claim but rather is only incidentally used, with no detail, in three dependent claims. Cosine similarity is a mathematical function, which is another category of abstract idea, so its presence in dependent claims is unavailing.
The Examiner has never disputed, in fact has recognized, that the claims take place within a specific technological environment. While the applicant argues in conclusory fashion that the claimed, abstract process is the “hallmark of integration into a practical application”, the applicant nowhere persuasively argues any of the specific factors that would indicate such integration. That is, nowhere is it persuasively argued that the claims improve the functioning of a computer, invoke a particular machine, transform matter, or go beyond generally linking the abstraction to the technology.
The fact that “concrete operations in an electronic content distribution environment” take place is unavailing, and the Examiner does not see how such a thing can possibly be relevant at any step in the analysis, and is not clear as to what step is being pointed to. The Federal Circuit has affirmed multiple decisions of the PTAB in which the underlying claim included concrete operations in an electronic content distribution environment. Just for one example among perhaps a dozen or so, see Bridge & Post, Inc. v. Verizon Communications, Inc., 778 F.App’x 882, 889 (Fed. Cir. 2019).
The Examiner has considered the remaining arguments which are similarly conclusory and which likewise do not point to any specific basis for patentability with references to, e.g., the MPEP or case law. The Examiner does not find these persuasive. The claims are not patent eligible and the rejection is maintained.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SCOTT C ANDERSON whose telephone number is (571)270-7442. The examiner can normally be reached M-F 9:00 to 5:30.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Bennett Sigmond can be reached at (303) 297-4411. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/SCOTT C ANDERSON/Primary Examiner, Art Unit 3694
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