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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 submission filed on 5 December 2025 has 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, 3-4, 6, 8-9, 11-12, 14, 16-17, and 19-20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a mental process or a mathematical concept without significantly more.
Representative claim 1 recites .
“A system comprising:
memory;
programmable circuitry; and
instructions stored on the memory that, when executed, cause the programmable circuitry to:
receive a first vector of counts sketch data from a first database proprietor, a second vector of counts sketch data from a second database proprietor, and a third vector of counts sketch data from a third database proprietor, wherein the first vector, the second vector, and the third vector have had personally identifiable information removed via a hash function, wherein the first vector includes a first number of elements. ones of the elements in the first vector corresponding to total numbers of first subscribers of the first database proprietor that accessed the media. the first subscribers allocated to the respective ones of the elements in the first vector of counts based on the hash function applied to information associated with the first subscribers,
wherein allocations of the first subscribers to ones of the elements in the first vector of counts are based on an integer value, the integer value derived from an output of the hash function, the hash function applied to the information associated with respective ones of the first subscribers;
wherein each of the first vector of counts, the second vector of counts, and the third vector of counts all share the same vector length (k) such that the allocations of the first subscribers to ones of the elements in the first vector of counts are in accordance with a 1/k probability of being selected;
determine, using at least two of the first vector, the second vector, or the third vector, a first covariance matrix associated with intersection cardinalities of the at least two of the first vector, the second vector, or the third vector;
determine, using the at least two of the first vector, the second vector, or the third vector, a second covariance matrix associated with disjoint cardinalities of the at least two of the first vector, the second vector, or the third vector; and
determine an audience size for a media based on the first covariance matrix or the second covariance matrix.”
Claims 9 and 17 recite similar subject matter.
This is a mental process because each of the claimed steps are merely a series of data analyses on available datasets that result in a calculation – notably, an audience size for a media. This is a mathematical concept because the claim performs a sequence of mathematical operations on received data to determine a result in the form of an audience size. A human being equipped with pen and paper or a generic machine is capable of performing the claimed data analyses or mathematical functions.
The claims contains additional elements in the form of memory and circuitry (claim 1), and non-transitory computer readable media (claim 17). The claims recite an additional element in the form of “receiving” the first, second, and third vectors of data that have, outside the context of the claims, been hashed and had personally identifiable information removed. Each of the remaining elements of the claims is merely an element of data or a data analysis function in the form of a mathematical operation and thus a mental process.
This judicial exception is not integrated into a practical application because the claimed additional elements do not appear to improve the processing of a computer, require the use of a specific machine, effect a transformation or reduction of a particular article to a different state or thing, or provide a technological solution to a technological problem.
The memory, circuitry, and non-transitory computer readable media are computer hardware elements recited at a high level of generality. They appear to be generic computing hardware elements. The recitation of generic hardware is little more than using a computer to perform an abstract idea, see MPEP 2106.05(f)(2). “Receiving” data (in the form of vector data that has already had PII removed and been hashed outside the context of the claims) appears to be a data gathering step, and is thus mere pre-solution insignificant activity (see MPEP 2106.05(g).
It is noted that none of the additional elements appear to improve the processing of a computer, require the use of a specific machine, effect a transformation or reduction of a particular article to a different state or thing, or provide a technological solution to a technological problem. As such, none of the additional elements appear to integrate the judicial exception into a practical application.
None of the additional elements are sufficient to amount to significantly more than the judicial exception, in part or in whole.
The recitation of generic hardware of the memory, circuitry, and non-transitory computer readable media are computer hardware elements recited at a high level of generality and is little more than using a computer to perform an abstract idea, see MPEP 2106.05(f)(2). The additional element of receiving data is merely extra-solution activity data gathering and is well understood, routine, and conventional (see MPEP 2106.05(g)). Storing the source data and the integrated extracted source data in a memory is nothing more than storing data in a memory, which is recognized as well-understood, routine, and conventional (see MPEP 2106.05(d)(II)).
None of the additional elements, in part or in whole, appear to improve the processing of a computer, require the use of a particular machine, effect a transformation or reduction of a particular article to a different state or thing, or add a specific limitation other than what is well understood, routine, or conventional. As such, none of the additional elements appears to be, in part or in whole, significantly more than the judicial exception.
Dependent claims 3-4, 6, 8, 11-12, 14, 16, and 19-20 are similarly rejected as being directed to both a mental process and a mathematical concept.
Dependent claims 3-4, 6, 8, 11-12, 14, 16, and 19-20 merely require a particular format or type of data,. It is noted that limiting an additional element to a particular field of use and technological environment does not integrate the claim into a practical application or provide significantly more than the abstract idea (see MPEP 2106.05(h)). As such, dependent claims 3-4, 6, 8, 11-12, 14, 16, and 19-20 are similarly rejected under 35 USC 101.
Response to Arguments
Applicant’s arguments with respect to the rejection of the claims under 35 USC 103 have been fully considered and are persuasive. The rejection of claims 1, 3-4, 6, 8-9, 11-12, 14, 16-17, and 19-20 under 35 USC 103 has been withdrawn.
Applicant's arguments filed 5 December 2025 have been fully considered but they are not persuasive.
Applicant argues that “the amended recitations cannot fall into the “mental process” grouping of abstracts ideas, as alleged in the present Office Action at p. 2-3. “The courts consider a mental process (thinking) that ‘can be performed in the human mind, or by a human using a pen and paper,’ to be an abstract idea.” See “Memorandum: Reminders on evaluating subject matter eligibility of claims under 35 U.S.C. 101” by Charles Kim, Deputy Commissioner of Patents, U.S. Patent and Trademark Office (Aug. 4, 2025) at p.2. “.. [A] claim does not recite a mental process when it contains limitation(s) that cannot practically be performed in the human mind, for instance when the human mind is not equipped to perform the claim limitation(s).” Jd. As such, Applicant’s claims—which involve, among other amended recitations, “the first vector includes a first number of elements, ones of the elements in the first vector corresponding to total numbers of first subscribers of the first database proprietor that accessed the media, the first subscribers allocated to the respective ones of the elements in the first vector of counts based on the hash function applied to information associated with the first subscribers,” “wherein allocations of the first subscribers to ones of the elements in the first vector of counts are based on an integer value, the integer value derived from an output of the hash function, the hash function applied to the information associated with respective ones of the first subscribers,” and “wherein each of the first vector of counts, the second vector of counts, and the third vector of counts all share the same vector length (x) such that the allocations of the first subscribers to ones of the elements in the first vector of counts are in accordance with a 1/A probability of being selected” cannot practically be performed in the human mind.”
In response to this argument, it is noted that a human being can, with pen and paper, create vectors that include a number of defined elements. Each of Applicant’s listed steps is merely a definition of the data contents of a vector, the result of a calculation of a hash function, or data requirements for the contents of the vector. Because all of the listed claim elements are merely data definitions, data analysis, and data requirements, a human being with pen and paper or a generic machine is well equipped to track, calculate, and perform the analyses of the listed claim elements.
Even if a machine was required to track these vectors, it is noted in MPEP 2106.04(a)(2) III C, that “claims can recite a mental process even if they are claimed as being performed on a computer.
The Supreme Court recognized this in Benson, determining that a mathematical algorithm for converting binary coded decimal to pure binary within a computer’s shift register was an abstract idea. The Court concluded that the algorithm could be performed purely mentally even though the claimed procedures "can be carried out in existing computers long in use, no new machinery being necessary." 409 U.S at 67, 175 USPQ at 675. See also Mortgage Grader, 811 F.3d at 1324, 117 USPQ2d at 1699 (concluding that concept of "anonymous loan shopping" recited in a computer system claim is an abstract idea because it could be "performed by humans without a computer").”
MPEP 2106.04(a)(2) III C 1-3 further elaborate on the idea that a claim may still be directed towards an abstract idea despite the use of a generic machine. Thus, though the claims may not be performed in a human mind, the data definition elements and requirements and the determination steps may be performed by a human being equipped with pen and paper or a generic machine.
Applicant argues that “Additionally, aspects of Applicant’s invention relate to, and provide improvements to, audience measurement technology. Claim 1 relates to these concepts and recites, among other aspects, for example the aforementioned recitations. Thus, the claimed invention undoubtedly provides an improvement to a technical field, namely that of audience measurement, and provides a particular technological solution to a technological problem arising in that technical field.”
In response to this argument, it is noted that Applicant has provided no reasons as to how the claimed steps represent “improvements to audience measurement technology” or an improvement to a technical field beyond a mere assertion that this is true.
In order to provide evidence to support this assertion, Examiner requests that Applicant identify, in the specification as filed, a description of a technological problem that is recognized in the art and a description of how the claimed elements provide a solution to that problem or an improvement in the state of the art.
Applicant cites Ex Parte Desjardins, then argues that “Accordingly, even if claim 1 recites an abstract idea (a point Applicant does not concede), when considered as a whole, claim 1 recites significantly more than the alleged abstract idea. For example, as Director Squires has emphasized Enfish’s holding that claims “directed to an improvement to computer functionality” are eligible, Applicant's claims —which involve an “audience measurement system”, among other amended recitations, “the first vector includes a first number of elements, ones of the elements in the first vector corresponding to total numbers of first subscribers of the first database proprietor that accessed the media, the first subscribers allocated to the respective ones of the elements in the first vector of counts based on the hash function applied to information associated with the first subscribers,” “wherein allocations of the first subscribers to ones of the elements in the first vector of counts are based on an integer value, the integer value derived from an output of the hash function, the hash function applied to the information associated with respective ones of the first subscribers,” and “wherein each of the first vector of counts, the second vector of counts, and the third vector of counts all share the same vector length (4) such that the allocations of the first subscribers to ones of the elements in the first vector of counts are in accordance with a 1/k probability of being selected” — are also directed to an improvement to computer functionality in the audience measurement technical field.”
In response to this argument, it is noted that Applicant has not shown, with citations to the specification as filed, how the claimed elements, in part or as a whole, “are also directed to an improvement to computer functionality in the audience measurement technical field.”
Additionally, it is noted that each of the claimed elements recited by applicant are mental process steps.
The step of “The first vector includes a first number of elements…” is merely a data definition step. A human being equipped with pen and paper or a generic machine is capable of following this rule definition when creating a vector.
The step of “the first subscribers allocated to the respective ones of the elements in the first vector of counts based on the hash function applied to information associated with the first subscribers” merely establishes that a hash function is applied to information. A hash is a function that accepts an input of data and produces an output of data. A hash function is a mental process and mathematical operation. A human being equipped with pen and paper or a generic machine is capable of performing a hash function.
The step of “wherein each of the first vector of counts, the second vector of counts, and the third vector of counts all share the same vector length (4) such that the allocations of the first subscribers to ones of the elements in the first vector of counts are in accordance with a 1/k probability of being selected” is merely a data definition step. A human being equipped with pen and paper or a generic machine is capable of following this rule definition when creating a vector.
To summarize, each of Applicant’s listed steps is a mental process – merely a data definition or a data analysis. A human being equipped with pen and paper or a generic computer is capable of following a data definition and data analysis to produce a data output.
Even if Applicant had provided evidence to show an improvement to technological problem, which they have not, an improved mental process remains a mental process and is thus patent ineligible.
Applicant needs to provide a citation to the specification establishing a technological problem and a solution to this technological problem or an improvement to technology. Applicant then needs to ensure that the an additional element in the claims, beyond a data definition or data analysis step, is tied to this solution or improvement. The response, as currently filed, does not provide these.
Applicant argues that “Thus, even assuming arguendo that the claim is directed to an abstract idea (a point Applicant does not concede), claim 1 reflects a specific improvement to the audience measurement technical field, e.g., by reflecting a particular technological solution to a technological problem. See, e.g, Ex parte Desjardins at p. 8; see also “Memorandum: Reminders on evaluating subject matter eligibility of claims under 35 U.S.C. 101” by Charles Kim, Deputy Commissioner of Patents, U.S. Patent and Trademark Office (Aug. 4, 2025) at p. 4 (‘In computer-related technologies, examiners can conclude that claims are eligible in Step 2A Prong Two by finding that a claim reflects an improvement to the functioning of a computer or of another technology or technical field, integrating a recited judicial exception into a practical application of the exception”) (emphasis added). Accordingly, claim 1 recites a technological solution in audience measurement to a technological problem of the audience measurement technical field. Thus, Applicant submits that claim 1 is directed to eligible subject matter, including at least the reasons articulated by Director Squires in his Ex parte Desjardins decision and reaffirmed in his December 4, 2025 Memorandum to the “Patent Examining Corps” saying that § 101“... must be applied properly, as set forth in Desjardins.” And for similar reasons, the remaining independent claims are directed to eligible subject matter.”
In response to this assertion, it is noted that no evidence of “a specific improvement to the audience measurement technical field” is provided. As noted above, Applicant is requested to provide a citation to the specification as filed that shows how an additional element in the claims beyond a data definition or data analysis step is tied to a particular solution to a recognized problem in the field or a particular improvement.
Conclusion
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/CHARLES D ADAMS/ Primary Examiner, Art Unit 2152