DETAILED ACTION
Status of Claims
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 submission for Application #17,807,267, filed on 05/29/2026, has been entered. The following is a NON-FINAL OFFICE ACTION in response to the request for continued examination.
Claims 1, 3-9, 11, and 13-21 are now pending and have been examined.
Claim 10 has been cancelled by the applicant.
**The examiner would consider an allowance of claims 1, 3-9, 11, and 13-20 if the enriching step were further amended to read “enriching the gathered feedback data with additional layers of data CAPTURED BY THE TAG AND related to THE CONTENT OF the served webpage…” or some other very similar amendment. However, the examiner would require the cancellation of claim 21 which is much broader.**
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, 3-9, 11, and 13-21 is rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter. The rationale for this finding is explained below.
Per Step 1 of the analysis, the claims are analyzed to determine if they are directed to statutory subject matter. Claim 11 claims a system comprising a processor and a memory. Therefore, the system is interpreted as an apparatus. Therefore, claim 11 is directed to a statutory category for patentability, namely an apparatus. Claims 1 and 21 claim a method, or process. A method, or process, is a statutory category for patentability.
Per Step 2A, Prong 1 of the analysis, the examiner must now determine if the claims recite an abstract idea or eligible subject matter. In the instant case, the claims recite an abstract idea. Specifically, claims 1 and 11 recite “creating, based on a performance goal and historical data, a first dynamic category version of a dynamic category, wherein the first dynamic category version is a version of the dynamic category and includes at least one category attribute, wherein the at least one category attribute is of a webpage, wherein the first dynamic category version is configured to define category attributes, identifying at least one first matching advertisement request based on the first dynamic category version, wherein the at least one first matching ad request is determined by matching the category attributes of the first dynamic category version and category attributes of the at least one first ad request, wherein the matching is performed by identifying ad requests that match the first dynamic category version, in response to the placement of the ad as a served ad on a served webpage after the at least one first matching ad request id bid on for placement of the ad, gathering as served raw, unaltered, and unaggregated feedback data on a performance of the served ad and URL data of the served webpage, wherein the feedback data is gathered with respect to each of the served ads on the served webpage, wherein the raw, unaltered, and unaggregated feedback data includes URL specific performance data, identifying, based on the gathered feedback data, at least one potential category attribute not already included in the first dynamic category version by enriching the gathered feedback data with additional layers of data related to the served webpage, matching the category attributes in the first dynamic category version with the URL data, and performing analysis using activity data on the served ad, updating the first dynamic category version to create a second dynamic category version based on a portion of the identified at least one potential category attribute, wherein the updating includes modifying definitions of the dynamic category by at least one of adding, removing, or modifying category attributes based on performance data correlated to specific category attributes, identifying at least one second matching as request for bidding, wherein the at least one second matching ad request is determined based on the second dynamic category version, wherein the at least one second matching ad request is bid on for the placement of the ad, wherein the second dynamic category version is utilized to provide matching ad requests, and iteratively creating third dynamic category versions from a previous dynamic category version until the performance goal is substantially met, wherein the iteratively creating of the third dynamic category versions results in continuous updating of the category attributes based on URL specific performance data and environmental signals associated with the served webpages.”
The claims recite an abstract idea, namely an organization of human activity. Specifically, the claims are directed to the organization of human activity of “advertising,” or “marketing or sales activities.” A dynamic category is created for targeting an ad and matching to an ad placement that is identified for bidding, feedback is received, the category attributes are updated, and the updated category is then used a second time for matching to another ad opportunity for bidding that matches the updated category attributes. A potential category is identified by analysis of performance data and enriching the data with additional data related to the placement, the category attributes are updated, and the updated category is then used a second time for matching to another ad opportunity. Such an arrangement is commonly done by ad agencies when implementing and adjusting or optimizing ad campaigns. Targeting attributes and parameters are identified and then they are matched for placement of an advertisement with ad opportunities/publishers that match the attributes/rules/parameters. Feedback is used to update and optimize the targeting parameters of the campaign, and then the campaign is continued after the optimization. The addition of the “iteratively creating third dynamic category versions” is not considered to make the claims eligible, as this step simply repeats what is already done until the campaign goal is determined to be met. Targeted advertising in campaigns is routinely as a matter of contract ended or paused when campaign goals or limits have been met. There is no technical step that introduces anything beyond just repeating the steps until the campaign goal is met. The addition of “wherein the at least one category attribute is an attribute of a webpage” does not change the analysis, as no matter what the attribute is of a dynamic category version could still be created, as there is no kind of technical step involving a webpage like some kind of analysis of the webpage to create the category versions. The addition of gathering feedback on a performance of the served ad and URL data of the served webpage does not change the analysis. The addition of “in response to the placement of the ad as a served ad on a served webpage” does not change the analysis, as this limitation is simply descriptive of what the gathering of the feedback is in response to, and there is no actual positively recited step of selecting and serving an advertisement, and even if there was it would be considered conventional computer functioning in the other steps of the analysis below. The addition of the feedback data being raw, unaltered, and unaggregated does not change the analysis as it is merely descriptive of how the data being gathered was initially collected, and there is no kind of technical step even reciting any kind of gathering technology. The addition of the potential category attribute “not already included in the first dynamic category version is a version of the dynamic category” does not change the analysis, as this would still be as described above part of an advertising process, and whatever potential dynamic categories are identified would all be either already included or not already included, and that is just descriptive of the relationship to each potential category that is identified to the original first dynamic category version. The use of a processor and memory and recited systems in the claims only automate the steps of the method of claim 1. Therefore, the claims are determined to be directed to an abstract idea, namely “certain methods of organizing human activity.”
Additionally, claim 21 recites “gathering raw, unaltered, and unaggregated feedback data comprising URL specific performance data of a served webpage associated with a served advertisement, creating a first dynamic category including category attributes, identifying at least one potential category attribute based on the analysis of the feedback data by enriching feedback data with additional layers of data related to the served webpage and performing analysis using activity data on the served advertisement, updating the first dynamic category version to create a second dynamic category version based on the identified at least one potential category attribute, identifying ad requests matching the second dynamic category version using a category matching system configured to identify advertisement requests that match the second dynamic category version, and iteratively creating third dynamic category versions from a previous dynamic category version until the performance goal is substantially met ” The claims recite an abstract idea, namely an organization of human activity. Specifically, the claims are directed to the organization of human activity of “advertising,” or “marketing or sales activities.” Feedback data from served ads is gathered, a dynamic category is created for further targeting and matching to an ad placement, a potential category is identified by analysis of performance data and enriching the data with additional data related to the placement, the category attributes are updated, and the updated category is then used a second time for matching to another ad opportunity. Such an arrangement is commonly done by ad agencies when implementing and adjusting or optimizing ad campaigns. Targeting attributes and parameters are identified and then they are matched for placement of an advertisement with ad opportunities/publishers that match the attributes/rules/parameters. Feedback is used to update and optimize the targeting parameters of the campaign, and then the campaign is continued after the optimization. The “iteratively creating third dynamic category versions” is not considered to make the claims eligible, as this step simply repeats what is already done until the campaign goal is determined to be met. Targeted advertising in campaigns is routinely as a matter of contract ended or paused when campaign goals or limits have been met. There is no technical step that introduces anything beyond just repeating the steps until the campaign goal is met. Therefore, the claims are determined to be directed to an abstract idea, namely “certain methods of organizing human activity.”
Per Step 2A, Prong 2 of the analysis, the examiner must now determine if the claims integrate the abstract idea into a practical application. The additional elements of claims 1 and 11 include the recitation of “computer-implemented,” “”an optimization system,” and “a category matching system” in claim 1 and a “processor,” a “memory,” an “optimization system,” and “a category matching system,” in claim 11. However, these components are considered generic recitations of technical elements which are recited at a high level of generality. These components are being used as “tools to automate the abstract idea” (see Updated Patent Eligibility Guidance on page 55 of the January 7th, 2019 Federal Register), and do not integrate the abstract idea into a practical application. They are not recitations of a special purpose computer or transformation (see MPEP 2106.05 (b) and (c)). Further, the claims include, although without any detail, the “transmitting to an advertiser the at least one first matching ad request and an indication that the at least one first matching ad request matches the first dynamic category version,” “transmitting to an advertiser the at least one second matching ad request and an indication that the at least one second matching ad request matches the second dynamic category version,” and the “gathering feedback data.” These additional elements are considered “receiving and/or transmitting of data over a network,” which is given as an example of conventional computer functioning in the MPEP 2106.05 (d) (II) (i) (see “receiving or transmitting data over a network, citing Symantec, buySAFE v Google). Therefore, these additional elements do not integrate the abstract idea into a practical application. The addition by amendment of updating and iteratively creating “in near real-time” is considered the equivalent of “apply it” or using a computer as a tool to automate the abstract idea, as the computer is a generic technical element that is simply automating the process of creating dynamic category versions first based on historical data and performance goals, and then based further on incoming data. The fact it is done in “near real-time” does not integrate the abstract idea into a practical application and further the examiner takes Official Notice that it is old and well known at the time of filing of the application to use a computer to update ad campaigns “in near real-time” using a computer. The additional element of “wherein the feedback data is captured by a tag deployed with the served advertisement on the served webpage” is considered a generic recitation of a technical element and recited at a high level of generality. The examiner takes Official Notice that it is old and well known at the time of filing of the application to use a tag or cookie to gather feedback data on a webpage. Therefore, this additional element does not integrate the abstract idea into a practical application. For claim 21, the additional elements of the claims include the recitation of a “system.” However, this component is considered a generic recitation of a technical element which is recited at a high level of generality. The component is being used as a “tool to automate the abstract idea” (see Updated Patent Eligibility Guidance on page 55 of the January 7th, 2019 Federal Register), and does not integrate the abstract idea into a practical application. It is not a recitation of a special purpose computer or transformation (see MPEP 2106.05 (b) and (c)). The additional elements also include “transmitting the matching advertisement request to an advertiser” and “gathering… feedback data.” Absent further detail, these additional elements are considered “receiving and/or transmitting of data over a network,” which is given as an example of conventional computer functioning in the MPEP 2106.05 (d) (II) (i) (see “receiving or transmitting data over a network, citing Symantec, buySAFE v Google). Therefore, these additional elements do not integrate the abstract idea into a practical application. The addition by amendment of updating and iteratively creating “in near real-time” is considered the equivalent of “apply it” or using a computer as a tool to automate the abstract idea, as the computer is a generic technical element that is simply automating the process of creating dynamic category versions first based on historical data and performance goals, and then based further on incoming data. The fact it is done in “near real-time” does not integrate the abstract idea into a practical application and further the examiner takes Official Notice that it is old and well known at the time of filing of the application to use a computer to update ad campaigns “in near real-time” using a computer. The additional element of “wherein the feedback data is captured by a tag deployed with the served advertisement on the served webpage” is considered a generic recitation of a technical element and recited at a high level of generality. The examiner takes Official Notice that it is old and well known at the time of filing of the application to use a tag or cookie to gather feedback data on a webpage. Therefore, this additional element does not integrate the abstract idea into a practical application.
Per Step 2B of the analysis, the examiner must now determine if the claims include limitations that are “significantly more” than the abstract idea by demonstrating an improvement to another technology or technical field, an improvement to the functioning of the computer itself, or meaningful limitations beyond generally linking the use of an abstract idea to a particular technological environment. The additional elements of claims 1 and 11 include the recitation of “computer-implemented,” “”an optimization system,” and “a category matching system” in claim 1 and a “processor,” a “memory,” an “optimization system,” and “a category matching system,” in claim 11. However, these components are considered generic recitations of technical elements which are recited at a high level of generality. These components are being used as “tools to automate the abstract idea” (see Updated Patent Eligibility Guidance on page 55 of the January 7th, 2019 Federal Register), and are not considered significantly more than the abstract idea itself. They are not recitations of a special purpose computer or transformation (see MPEP 2106.05 (b) and (c)). Further, the claims include, although without any detail, the “transmitting to an advertiser the at least one first matching ad request and an indication that the at least one first matching ad request matches the first dynamic category version,” “transmitting to an advertiser the at least one second matching ad request and an indication that the at least one second matching ad request matches the second dynamic category version,” and the “gathering feedback data.” These additional elements are considered “receiving and/or transmitting of data over a network,” which is given as an example of conventional computer functioning in the MPEP 2106.05 (d) (II) (i) (see “receiving or transmitting data over a network, citing Symantec, buySAFE v Google). Therefore, these additional elements are not considered significantly more than the abstract idea itself. The addition by amendment of updating and iteratively creating “in near real-time” is considered the equivalent of “apply it” or using a computer as a tool to automate the abstract idea, as the computer is a generic technical element that is simply automating the process of creating dynamic category versions first based on historical data and performance goals, and then based further on incoming data. The fact it is done in “near real-time” is not considered significantly more than the abstract idea itself and further the examiner takes Official Notice that it is old and well known at the time of filing of the application to use a computer to update ad campaigns “in near real-time” using a computer. The additional element of “wherein the feedback data is captured by a tag deployed with the served advertisement on the served webpage” is considered a generic recitation of a technical element and recited at a high level of generality. The examiner takes Official Notice that it is old and well known at the time of filing of the application to use a tag or cookie to gather feedback data on a webpage. Therefore, this additional element is not considered significantly more than the abstract idea itself. For claim 21, the additional elements of the claims include the recitation of a “system.” However, this component is considered a generic recitation of a technical element which is recited at a high level of generality. The component is being used as a “tool to automate the abstract idea” (see Updated Patent Eligibility Guidance on page 55 of the January 7th, 2019 Federal Register), and is not considered significantly more than thee abstract idea itself. It is not a recitation of a special purpose computer or transformation (see MPEP 2106.05 (b) and (c)). The additional elements also include “transmitting the matching advertisement request to an advertiser” and “gathering… feedback data.” Absent further detail, these additional elements are considered “receiving and/or transmitting of data over a network,” which is given as an example of conventional computer functioning in the MPEP 2106.05 (d) (II) (i) (see “receiving or transmitting data over a network, citing Symantec, buySAFE v Google). Therefore, these additional elements are not considered significantly more than the abstract idea itself. The addition updating and iteratively creating “in near real-time” is considered the equivalent of “apply it” or using a computer as a tool to automate the abstract idea, as the computer is a generic technical element that is simply automating the process of creating dynamic category versions first based on historical data and performance goals, and then based further on incoming data. The fact it is done in “near real-time” does not integrate the abstract idea into a practical application and further the examiner takes Official Notice that it is old and well known at the time of filing of the application to use a computer to update ad campaigns “in near real-time” using a computer. The additional element of “wherein the feedback data is captured by a tag deployed with the served advertisement on the served webpage” is considered a generic recitation of a technical element and recited at a high level of generality. The examiner takes Official Notice that it is old and well known at the time of filing of the application to use a tag or cookie to gather feedback data on a webpage. Therefore, this additional element is not considered significantly more than the abstract idea itself.
When considered as an ordered combination, the claims still are considered to be directed to an abstract idea. The claims the logical set of steps of creating a dynamic category version, identifying and bidding on an advertisement opportunity, receiving feedback, updating the dynamic category version with a category attribute change by enriching the data with additional layers of data and matching the category attributes in the first version with the URL data, identifying another ad opportunity to bid on with the new updated category version, implementing the ad request, and continuing the process until the performance goal is met. Therefore, the ordered combination does not lead to a determination of significantly more.
When considering the dependent claims, claim 3 is considered conventional computer functioning, and the examiner takes Official Notice that it is old and well known at the time of filing of the application to attach a tag to an advertisement with descriptions for feedback collection and enriching data. Claims 4 and 5 are considered part of the abstract idea and conventional computer functioning, as the type of feedback or performance data gathered or received, such as a URL or number of clicks, does not change the analysis. Claim 6 is considered “apply it,” or a generic recitation of a machine or computer, as simply the use of a model that has already been trained, absent any detail whatsoever as to how the model is used or trained, is considered use of a computer as a tool to perform the abstract idea. Claim 7 is considered part of the abstract idea, as absent any further detail the “extracting” step is considered synonymous with identifying of the attributes and values and determining the performance data is simply analysis of the gathered feedback. Claim 8 is considered part of the abstract idea as the step involves simply a judgment step in which an advertisement optimization step is done. Claim 9 is considered conventional computer functioning, as the MPEP 2106.05 (d) (ii) lists “electronic recordkeeping,” “updating an activity log,” and “storing and retrieving information in a memory” as examples of conventional computer functioning, citing Alice Corp., Ultramercial, and Versata Dev Grp v SAP. Claim 20 associates one data set, namely feedback data, with another, namely an attribute, which is considered part of the abstract idea. The other dependent claims mirror those discussed above.
Therefore, claims 1, 3-9, 11, and 13-21 are is rejected under 35 U.S.C. 101 as being directed to non-statutory subject matter. See Alice Corporation Pty. Ltd. Vs. CLS Bank International et al., 2014 (please reference link to updated publicly available Alice memo at http://www.uspto.gov/patents/announce/alice_pec_25jun2014.pdf as well as the USPTO January 2019 Updated Patent Eligibility Guidance.)
Response to Arguments
Regarding the rejections based on 35 USC 101:
Regarding the applicant’s argument on pages 9-10 of the response that the claims do not preempt the abstract idea and are not a drafting effort meant to monopolize the judicial exception:
The essence of the argument appears to be that since the Office has not shown that the claims “would preempt all applications of the alleged abstract idea”, the rejection under 35 U.S.C. § 101 is improper. However, as the Federal Circuit pointed out in Ariosa Diagnostics, Inc. v. Sequenom, Inc. (Fed. Cir. June 12, 2015, #2014-1139, 2014-1144), “[while preemption may signal patent ineligible subject matter, the absence of complete preemption does not demonstrate patent eligibility. ... Where a patent' s claims are deemed only to disclose patent ineligible subject matter under the Mayo framework, as they are in this case, preemption concerns are fully addressed and made moot” (slip op. pp. 14-15). Similarly, in OIP Technologies, Inc. vs. Amazon.com, Inc. (Fed. Cir., June 11,2015, #2012-1696), the Federal Circuit held “that the claims do not preempt all price optimization or may be limited to price optimization in the e-commerce setting do not make them any less abstract. See buySAFE, Inc. v.Google, Inc., 765 F.3d 1350, 1355 (Fed. Cir. 2014) (collecting cases); Accenture, 728 F.3d at 1345”.
Regarding the applicant’s arguments on pages 10-13 of the response that the claims, including claim 21, are directed to a “specific improvement in computerized processing of webpage-level feedback data through deployment of a tag-based feedback collection architecture, enrichment and correlation of URL-specific performance data and environmental signals, and continuous machine updating of dynamic category definitions…” and further “the entire process is restructured to provide improved computer efficiency…allowing for reduced processing time and thus improving computational efficiency and utilization of resources”:
The examiner does not see an improvement in computerized processing of feedback data. Using a tag (or other means such as cookies, scripts, and beacons) are well-known ways of collecting feedback data on a served webpage and they have been used regularly at this point for around two decades. The enrichment of the data includes no technical detail and can be even done manually in an ad agency, and involves only correlation of relevant data with current data. The use of a “machine” to update the dynamic category definitions using the collected tag data and enrichment is considered the equivalent of “apply it,” or suing a computer as a tool to automate the abstract idea in a particular technological environment for the purposes of advertising. Advertising is not considered a technical field. For that reason, it is specifically mentioned in the judicial exception category of “certain methods of organizing human activity.” The internet/webpage is the particular technological environment to which the abstract idea of advertising is applied using a computer and other conventional technologies. Technologies such as gathering of feedback data for an advertisement using a tag is not, at the time of effective filing date of the application is in no way considered an improvement or non-obvious but conventional technology. Once ads are served, feedback is collected and the category attributes are updated to better identify and match potential placements to be bid on. The computer might make this process faster by the automation of the process on a computer, but this does not make the claims eligible as automation of an abstract idea, while almost always causing somewhat greater speed by virtue of the automation, has not been identified by the Courts as a reason for eligibility. There are many Court decisions like Ultramercial, buySAFE v Google, OIP Techs v Amazon, and others in which there are clearly multiple servers, networks, interfaces, and other devices being used that automate the abstract ideas and cause the claim steps to be performed faster than they would manually, but the claims were still determined to be directed to an abstract idea. The current claims seem to potentially improve WHICH placement opportunities are bid on based on the goodness of match or fit with the campaign goals, and the match is potentially improved by updating or “creating” new category versions based on identified category attributes. The computer simply automates the abstract idea and is used as a tool. There is not improvement to the computer itself and no described technique that involves technology more than just tangentially for generic processes. The MPEP 2106.05 (f) that an abstract idea is integrated into a practical application when, for example, an additional element reflects an “improvement in the functioning of a computer, or an improvement to other technology or technical field.”
In Electric Power Group v Alstom S.A. (Fed Cir, 2015-1778, 8/1/2016) the courts articulated why Enfish was found to be eligible. Starting on page 8 of the written opinion it states:
“In Enfish, we applied the distinction to reject the § 101 challenge at stage one because the claims at issue focused not on asserted advances in uses to which existing computer capabilities could be put, but on a specific improvement—a particular database technique—in how computers could carry out one of their basic functions of storage and retrieval of data. Enfish, 822 F.3d at 1335-36; see Bascom, 2016 WL 3514158, at *5; cf. Alice, 134 S. Ct. at 2360 (noting basic storage function of generic computer). The present case is different: the focus of the claims is not on such an improvement in computers as tools, but on certain independently abstract ideas that use computers as tools.”
Enfish was found to be eligible because they had invented a new type of database, a self-referential database, which improved the basic functions of storage and retrieval of data. Similar to the findings in EPG, the current claims do not focus on an improvement to a computer but on abstract ideas that use computers as tools. The examiner does not see an improvement to the “computer itself, another technology, or the technical field” (see MPEP 2106.05 (f)) in the current claims as amended. Therefore, the argument regarding the current claims that “the entire process is restructured to provide improved computer efficiency…allowing for reduced processing time and thus improving computational efficiency and utilization of resources” is not persuasive as there is no technical step or process that, like in Enfish, makes the computer more efficient or faster or that causes the computer to process data more efficiently. The only potential improvement is to the updating of the dynamic categories for potentially better or more effective advertising by meeting of the performance goals, although that is not an objective guarantee, there is only the hope and assumption that the techniques would lead to better ad targeting and better meeting of performance goals.
Therefore, the arguments are not persuasive and the rejection is sustained.
**The examiner would consider an allowance of claims 1, 3-9, 11, and 13-20 if the enriching step were further amended to read “enriching the gathered feedback data with additional layers of data CAPTURED BY THE TAG AND related to THE CONTENT OF the served webpage…” or some other very similar amendment. However, the examiner would require the cancellation of claim 21 which is much broader.**
Conclusion
Any inquiry of a general nature or relating to the status of this application or concerning this communication or earlier communications from the Examiner should be directed to Luis A. Brown whose telephone number is 571.270.1394. The Examiner can normally be reached on Monday-Friday 8:30am-5:00pm EST. If attempts to reach the examiner by telephone are unsuccessful, the Examiner’s supervisor, JESSICA LEMIEUX can be reached at 571.270.3445.
Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see http://portal.uspto.gov/external/portal/pair . Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866.217.9197 (toll-free).
Any response to this action should be mailed to:
Commissioner of Patents and Trademarks
Washington, D.C. 20231
or faxed to 571-273-8300.
Hand delivered responses should be brought to the United States Patent and Trademark Office Customer Service Window:
Randolph Building
401 Dulany Street
Alexandria, VA 22314.
/LUIS A BROWN/Primary Examiner, Art Unit 3626
Prosecution Insights