DETAILED ACTION
Status of the Application
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 August 21, 2025, has been entered.
In response, the Applicant amended claims 1, 7, 8, 12, and 17. Claims 2, 3, 6, 18-21 were previously cancelled. Claims 1, 4, 5, 7-17, and 22 are pending and currently under consideration for patentability.
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Response to Amendments and Arguments
v Applicant’s arguments and amendments, with respect to the rejection of claims 1, 4, 5, and 7 under 35 U.S.C. §112(b) have been fully considered and are not persuasive. The amended claim language is not consistent with the language previously suggested by the Examiner, as it still refers to “the written communication…that is intended for the target audience…”, which still lacks sufficient antecedent basis. The rejections of claims 1, 4, 5, and 7 under 35 U.S.C. §112 (b) have been maintained accordingly.
v Applicant’s arguments, with respect to the rejection of claims 1, 4, 5, 7-17, and 22 under 35 U.S.C. §101 have been fully considered and are not persuasive. The rejections of claims 1, 4, 5, 7-17, and 22 under 35 U.S.C. §101 have been maintained accordingly.
Applicant specifically argues that
1) “Independent claim 1, for example, is directed to a specific computer-implemented process for generating and refining written communications so as to increase comprehension, persuasion, or clarity for a target audience. The claimed method requires...This is not merely collecting and analyzing data "in the abstract." It is a concrete, multi- stage computational process that transforms raw linguistic data into an actionable communication artifact, delivers that artifact via a specific output channel, measures real-world audience engagement, and adaptively retrains the model”
Examiner respectfully disagrees with Applicant’s first argument.
Applicant’s argument is incommensurate with what is actually claimed. The instant claims do not involve transforming raw linguistic data into anything (e.g., an actionable communication artifact), delivering the artifact via a specific output channel, measuring audience engagement, and does not even necessarily require retraining the model. Regardless of these distinctions, the claimed processes are directed to a way of personalizing marketing information, which can increase the probability of the content eliciting a desired affect from a target audience. This is consistent with the Examiner’s previously characterization of the abstract idea, which explained that the claims recite limitations that recite a process involving analyzing content corresponding to a source audience (e.g., text they have written/read) to generate linguistic/psychographic models to identify a linguistic and psychographic characteristics of the source audience (e.g., personality traits and language styles/preferences), creating an advertisements with language that is tailored to the source audiences personality traits and language styles/preferences and presenting the source audience with the advertisement and determining their subsequent response, which amounts to a commercial or legal interactions (specifically, an advertising, marketing or sales activity or behavior). These limitations therefore fall within the “certain methods of organizing human activity” subject matter grouping of abstract ideas. Examiner notes that, as discussed in the rejection, a human being is certainly capable of performing the identified steps mentally and/or with pen and paper. If one or more claim limitations, under their broadest reasonable interpretation, covers performance of the limitation(s) in the mind but for the recitation of generic computer components, then it falls within the “mental processes” subject matter grouping of abstract ideas as well. That a general-purpose computer is generally required (i.e., at a high level) to perform certain steps does not make this process any less directed to subject matter falling within the “certain methods of organizing human activity” or “mental processes” subject matter grouping of abstract ideas
Applicant specifically argues that
2) “independent claim 1 integrates it into a practical application that improves the functioning of a computer-implemented communication system and provides a tangible, real-world outcome, namely, improved audience response… These operations result in an iteratively improved communication generation system that continually tunes itself to the target audience, which is a technological solution to the technological problem of adapting content for varied audience linguistic patterns.
This approach is consistent with MPEP 2106.05(a) (improvement to a technology or technical field) and parallels USPTO Examples 37 (Relaying Communication in a Secure Manner) and 42 (Training a Neural Network for Facial Detection), both of which were found eligible because the claims applied data analysis within a concrete technological context that produced a specific, useful result.
Examiner respectfully disagrees with Applicant’s second argument.
First, Applicant’s argument is again incommensurate with what is actually claimed. The instant claims do not involve presenting the generated communication via a defined media channel, measurement of actual audience reactions (generating a metric indicative of actual reaction may be viewed as distinct from actually measuring the reactions themselves), and does not even necessarily require retraining the model (the claims only require determining whether to adjust the linguistic model). Regardless of these distinctions, the claimed process does not improve the functioning of a computer-implemented communication system in any technical way. There is nothing in the claims, nor the specification, to suggest the claimed inventions are directed to a technical improvement. For example, Applicant’s as-filed specification suggests that it is advantageous for advertisers/business to perform the recited sequence of steps because doing so can improve receptiveness to advertisements in personalized marketing (subjective business purpose) (see, for example, paragraphs [0003]-[0008] and [0021]-[0023] of Applicant’s as-filed disclosure). These are non-technical business advantages/improvements. At most, the ordered combination of claim elements is directed to a non-technical improvement to an abstract idea itself (e.g., a way of tailoring ad content so as to personalize the marketing for a particular user or segment of users). Applicant’s disclosure even suggest that these steps need not be automated (i.e., could be performed manually - see, for example, paragraph [0061] of Applicant’s as-filed disclosure “to improve efficiency and consistency, some or all of these steps may be automated”, [0127] “additional affinity language content can be manually generated”, [0053] “a communication optimization platform can be designed to automate the process of sample language collection, analysis, optimization, and publishing”). Adapting content for varied audience linguistic patterns is not a technical problem (e.g., it is a subjective business problem that existed prior to the rise of modern-day computing environments). Relatedly, that a general-purpose computer is generally required (i.e., at a high level) to perform certain steps does not make this process any more of a technical solution.
Applicant’s reference to USPTO Examples 37 and 42 is unclear, as Example 37 has nothing to do with “Relaying Communication in a Secure Manner” (Example 37 is “relocation of icons on a graphical user interface”), and Example 42 corresponds to a “method for transmission of notifications when medical records are updated”, not “training a neural network for facial detection” (which is Example 39). Regardless, the fact pattern of the instant claims is significantly different from those in USPTO Examples 37, 39, and 42, whose corresponding analysis is not applicable to the instant claims. Examiner further disagrees that any examples were found eligible because they “applied data analysis within a concrete technological context that produced a specific, useful result”. Utility is not the standard for eligibility. Nor is the novelty or non-obviousness of any of the steps/formulas determinative of eligibility. See Diamond v. Diehr, 450 U.S. 175, 188-89, (1981 - the novelty of a process or its steps is not relevant to determining whether the claimed subject matter is patentable). Even if the steps/formulas provide a useful business outcome, that is not enough for eligibility. See Univ. of Fla. Research Found., Inc. v.. Gen. Elec. Co., 916 F.3d 1363, 1367 (Fed. Cir. 2019 - the automation of data synthesis technology and device drivers for different bedside machines did not render the claims any less abstract even if the automation resulted in “life altering consequences”); See In re Mohapatra, 842 F. App’x 635, 638 (Fed. Cir. 2021 - A claim does not “cease to be abstract for section 101 purposes simply because the claim confines the abstract idea to a particular technological environment in order to effectuate a real-world benefit.”). See In re Mohapatra, 842 F. App’x at 638 (“[T]he fact that an abstract idea may have beneficial uses does not mean that claims embodying the abstract idea are rendered patent eligible.”); See In re Elbaum, No. 2023-1418, 2023 WL 8794636, at *2 (Fed. Cir. Dec. 20, 2023 - holding that the usefulness and tax benefits of the abstract idea were insufficient to confer patent eligibility on the claims).
Applicant specifically argues that
3) “the claim's additional elements - individually and in ordered
combination - amount to significantly more than the alleged abstract idea for at least the following reasons: The linguistic model is not a generic model; it is created by extracting multiple linguistic features from audience-specific input samples and generating rules tailored to that audience's syntax, grammar, terminology, and cadence. The affinity language generation is directly informed by that customized model, ensuring a technical link between the input samples and output. The system feeds back real-world reaction metrics into the model, enabling non-conventional, closed-loop optimization that continually improves communication effectiveness. Such a feedback-driven, computer-implemented language optimization process is not well-understood, routine, or conventional. It materially differs from simply "tailoring content" or "targeted advertising" because it employs a measurable, iterative adaptation loop with specific computational techniques.
Examiner respectfully disagrees with Applicant’s third argument.
The linguistic model is not an “additional element”, it is part of the abstract idea (e.g., it is a collection of rules generated via analysis of data). A model is not technology, regardless of whether or not a computer was used to create and/or store the model. Whether or not it is a “generic model” is irrelevant to the analysis. Generating additional text/language using these rules does not create a technical link between input textual samples and generated text/language. Whether or not the model is updated using “real-world reaction metrics” is irrelevant, as iteratively updating and/or improvement to the model is part of the abstract idea (these are non-technical steps/features), and because such an improvement is a non-technical business advantages/improvements. At most, the ordered combination of claim elements is directed to a non-technical improvement to an abstract idea itself (e.g., a way of tailoring ad content so as to personalize the marketing for a particular user or segment of users). Adapting content for varied audience linguistic patterns is not a technical problem (e.g., it is a subjective business problem that existed prior to the rise of modern-day computing environments). Relatedly, that a general-purpose computer is generally required (i.e., at a high level) to perform certain steps does not make this process any more of a technical solution. Finally, the conventionality of the claimed process is irrelevant to the eligibility analysis in this case. Even if the process has utility, utility is not the standard for eligibility. Nor is the novelty or non-obviousness of any of the steps/formulas determinative of eligibility. See Diamond v. Diehr, 450 U.S. 175, 188-89, (1981 - the novelty of a process or its steps is not relevant to determining whether the claimed subject matter is patentable). Elec. Commc’n Techs., LLC v. ShoppersChoice.com, LLC, 958 F.3d 1178, 1183 (Fed. Cir. 2020 - “[E]ven taking as true that claim 11 is ‘unique,’ that alone is insufficient to confer patent eligibility [when] the purported uniqueness of claim 11... is itself abstract.”’); Solutran, Inc. v. Elavon, Inc., 931 F.3d 1161, 1169 (Fed. Cir. 2019 – “merely reciting an abstract idea by itself in a claim—even if the idea is novel and non-obvious—is not enough to save it from ineligibility’’).
v Applicant’s arguments, with respect to the rejection of amended claims 1, 8, and 12 under 35 U.S.C. §102 have been considered, but are moot in view of a new grounds of rejection.
Applicant’s argument that
1) “While Solomon does mention that "advertisements delivered to a user may be selected or generated based on a user's personality," little information is provided regarding how those advertisements are "generated."…"a plurality of content objects, e.g., advertisements, may be generated according to a respective plurality of personalities[.]" And as an example, Solomon specifies that "a first advertisement for a car may be generated to suit an extravagant person and a second advertisement, for the very same car, may be generated to suit an agreeable person." This is not accomplished by altering the written content, however. Instead, Solomon appears to focus on altering the "look and feel" of the advertisements. Referring again to the aforementioned example, Solomon notes that "characteristics of [the] first advertisement ... may comprise flashy background colors, bright fonts, and specific audio effects suitable for ... a first personality and a second advertisement, for the same product or service, may comprise mellow background colors, smooth fonts, and mellow audio effects suitable for a second personality."…this
Is not persuasive. Examiner disagrees that Solomon only discloses selecting advertisements or language, not generating it. Solomon literally states that the advertisements are generated by the system, that language is part of the advertisement, and that the advertisements are to include language that is most appealing to the target audience based on the linguistic modeling. Applicant’s argument that “little information is provided regarding how those advertisements are ‘generated’” is irrelevant. Applicant’s own disclosure lacks any substantive detail for generating the affinity language, and generally asserts (similar to Solomon) that that the system generates the language.
Examiner notes that Applicant did not provide an argument regarding Independent claim 17. Applicant’s general argument with respect to the dependent claims is not persuasive, as these claims do not depend from an allowable claim.
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.
v Claim(s) 1, 4, 5, 7-17, and 22 is/are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more.
Step 1:
Claim(s) 1, 4, 5, and 7-11 is/are drawn to methods (i.e., a process), while claim(s) 12-17 and 22 is/are drawn to non-transitory computer-readable media (i.e., a machine/manufacture). As such, claims 1, 4, 5, 7-17, and 22 is/are drawn to one of the statutory categories of invention (Step 1: YES).
Step 2A - Prong One:
In prong one of step 2A, the claim(s) is/are analyzed to evaluate whether it/they recite(s) a judicial exception.
Claim 17 (representative of independent claim(s) 1, 8, and 12) recites/describes the following steps;
acquiring content corresponding to a source audience;
examining the content to identify at least one linguistic feature by performing a natural language processing operation;
producing, based on the at least one linguistic feature, (i) a linguistic model that specifies a linguistic characteristic of the source audience, and (ii) a psychographic model that specifies a psychographic characteristic of the source audience;
generating affinity language based on the linguistic model and the psychographic model;
incorporating at least some of the affinity language into a communication to be presented to a target audience that shares a characteristic in common with the source audience;
generating a metric that is indicative of a likelihood of eliciting, from the target audience, a desired reaction through presentation of the communication;
in response to a determination that the metric exceeds a threshold, causing presentation of the communication intended for the target audience; and
establishing, based on a determination that presentation of the communication does not elicit a given response from the target audience, whether to incorporate the affinity language in a different manner or incorporate new affinity language that is generated based on the linguistic model and the psychographic model
These steps, under its broadest reasonable interpretation, describe or set-forth analyzing content corresponding to a source audience (e.g., text they have written) to generate linguistic/psychographic models to identify a linguistic and psychographic characteristic of the source audience (e.g., personality traits and language styles/preferences) creating an advertisement with language that is tailored to the source audiences personality traits and language styles/preferences, determining whether the advertisement language is likely to elicit a desired reaction from the target audience, presenting the audience with the advertisement and establishing whether to incorporate the affinity language in a different manner or incorporate new affinity language based on a determination that presentation of the communication does not elicit a given response from the target audience, which amounts to a commercial or legal interactions (specifically, an advertising, marketing or sales activity or behavior). These limitations therefore fall within the “certain methods of organizing human activity” subject matter grouping of abstract ideas.
These steps, under its broadest reasonable interpretation, additionally encompass a human manually (e.g., in their mind, or using paper and pen) analyzing content corresponding to a source audience (e.g., text they have written) to generate linguistic/psychographic models to identify a linguistic and psychographic characteristic of the source audience (e.g., personality traits and language styles/preferences) creating an advertisement with language that is tailored to the source audiences personality traits and language styles/preferences determining whether the advertisement language is likely to elicit a desired reaction from the target audience, presenting the audience with the advertisement and establishing whether to incorporate the affinity language in a different manner or incorporate new affinity language based on a determination that presentation of the communication does not elicit a given response from the target audience (i.e., one or more concepts performed in the human mind, such as one or more observations, evaluations, judgments, opinions), but for the recitation of generic computer components. If one or more claim limitations, under their broadest reasonable interpretation, covers performance of the limitation(s) in the mind but for the recitation of generic computer components, then it falls within the “mental processes” subject matter grouping of abstract ideas.
As such, the Examiner concludes that claim 17 recites an abstract idea (Step 2A – Prong One: YES).
Independent claim(s) 1, 8, and 12 recite/describe nearly identical steps and/or a subset of these steps (and therefore also recite limitations that fall within this subject matter grouping of abstract ideas), and this/these claim(s) is/are therefore determined to recite an abstract idea under the same analysis.
Each of the depending claims likewise recite/describe these steps (by incorporation - and therefore also recite limitations that fall within this subject matter grouping of abstract ideas), and this/these claim(s) is/are therefore determined to recite an abstract idea under the same analysis. Any element(s) recited in a dependent claim that are not specifically identified/addressed by the Examiner under step 2A (prong two) or step 2B of this analysis shall be understood to be an additional part of the abstract idea recited by that particular claim. The same reasoning is similarly applicable to the limitations in the remaining dependent claims, and their respective limitations are not reproduced here for the sake of brevity.
Step 2A - Prong Two:
In prong two of step 2A, an evaluation is made whether a claim recites any additional element, or combination of additional elements, that integrate the exception into a practical application of that exception. An “addition element” is an element that is recited in the claim in addition to (beyond) the judicial exception (i.e., an element/limitation that sets forth an abstract idea is not an additional element). The phrase “integration into a practical application” is defined as requiring an additional element or a combination of additional elements in the claim to apply, rely on, or use the judicial exception in a manner that imposes a meaningful limit on the judicial exception, such that it is more than a drafting effort designed to monopolize the exception.
The claim(s) recite the additional elements/limitations of
“implemented by a computer program executing on a computing device” (claims 1 and 8)
“a non-transitory computer-readable medium with instructions stored thereon that, when executed by a processor, cause the processor to perform operations” (claims 12 and 17)
“wherein the at least one source includes (i) a network-accessible database,(ii) computer programs executing on computing devices that are associated with members of the source audience, or (iii) Internet cookies executing on computing devices that are associated with members of the source audience” (claim 4)
The requirement to execute the claimed steps/functions “implemented by a computer program executing on a computing device” (claims 1 and 8) and/or “a non-transitory computer-readable medium with instructions stored thereon that, when executed by a processor, cause the processor to perform operations” (claims 12 and 17) is equivalent to adding the words “apply it” on a generic computer and/or mere instructions to implement the abstract idea on a generic computer. Applicant’s own disclosure suggests that the computers/media used to implement the abstract idea may be general-purpose computers (e.g., paras of Applicant’s published disclosure[0090] and [0172]-[0181] “desktop computer, tablet computer…mobile phone…or another electronic device capable of executing a set of instructions…”). This/these limitation(s) do/does not impose any meaningful limits on practicing the abstract idea, and therefore do/does not integrate the abstract idea into a practical application (see MPEP 2106.05(f)). Examiner notes that even if “by performing a natural language processing operation” (claims 1, 8, 12, and 17) were considered to be an additional element (which, based on the breadth of this limitation, the Examiner does not believe it is), this would also be equivalent to adding the words “apply it” on a generic computer and/or mere instructions to implement the abstract idea on a generic computer (e.g., using OCR).
The recited additional element(s) of “wherein the at least one source includes (i) a network-accessible database,(ii) computer programs executing on computing devices that are associated with members of the source audience, or (iii) Internet cookies executing on computing devices that are associated with members of the source audience” (claim 4) serves merely to generally link the use of the judicial exception to a particular technological environment or field of use. Specifically, it/they serve(s) to limit the application of the abstract idea to computing environments, such as distributed computing environments and/or the internet, where information is represented digitally, exchanged between computers over a network, and presented using graphical user interfaces. This reasoning was demonstrated in Intellectual Ventures I LLC v. Capital One Bank (Fed. Cir. 2015), where the court determined "an abstract idea does not become nonabstract by limiting the invention to a particular field of use or technological environment, such as the Internet [or] a computer"). This/these limitation(s) do/does not impose any meaningful limits on practicing the abstract idea, and therefore do/does not integrate the abstract idea into a practical application (see MPEP 2106.05(g)).
The recited element(s) of “acquiring multiple input samples corresponding to a source audience from at least one source” (claim 1) and “wherein the at least one source includes (i) a network-accessible database,(ii) computer programs executing on computing devices that are associated with members of the source audience, or (iii) Internet cookies executing on computing devices that are associated with members of the source audience” (claim 4) and “acquiring multiple input samples corresponding to a source audience” (claim 8) and “acquiring content corresponding to a source audience” (claim 12), and “acquiring content corresponding to a source audience” (claim 17), even if considered to be “additional elements”, would simply append insignificant extra-solution activity to the judicial exception, (e.g., mere pre-solution activity, such as data gathering, in conjunction with an abstract idea). The term “extra-solution activity” is understood as activities incidental to the primary process or product that are merely a nominal or tangential addition to the claim. The recited additional element(s) do are deemed “extra-solution” because all uses of the recited judicial exceptions require such data gathering, and because such data gathering have long been held to be insignificant pre -solution activity. This/these limitation(s) do/does not impose any meaningful limits on practicing the abstract idea, and therefore do/does not integrate the abstract idea into a practical application (see MPEP 2106.05(h) and (g)).
Furthermore, although the claims recite a specific sequence of computer-implemented functions, and although the specification suggests certain functions may be advantageous for various reasons (e.g., business reasons), the Examiner has determined that the ordered combination of claim elements (i.e., the claims as a whole) are not directed to an improvement to computer functionality/capabilities, an improvement to a computer-related technology or technological environment, and do not amount to a technology-based solution to a technology-based problem. For example, Applicant’s as-filed specification suggests that it is advantageous for advertisers/business to perform the recited sequence of steps because doing so can improve receptiveness to advertisements in personalized marketing (subjective business purpose) (see, for example, paragraphs [0003]-[0008] and [0021]-[0023] of Applicant’s as-filed disclosure). These are non-technical business advantages/improvements. At most, the ordered combination of claim elements is directed to a non-technical improvement to an abstract idea itself (e.g., a way of tailoring ad content so as to personalize the marketing for a particular user or segment of users). Applicant’s disclosure even suggest that these steps need not be automated (i.e., could be performed manually - see, for example, paragraph [0061] of Applicant’s as-filed disclosure “to improve efficiency and consistency, some or all of these steps may be automated”, [0127] “additional affinity language content can be manually generated”, [0053] “a communication optimization platform can be designed to automate the process of sample language collection, analysis, optimization, and publishing”).
Dependent claims 5, 7, 9-11, 13-16, and 22 fail to include any additional elements. In other words, each of the limitations/elements recited in respective dependent claims 5, 7, 9-11, 13-16, and 22 is/are further part of the abstract idea as identified by the Examiner for each respective dependent claim (i.e. they are part of the abstract idea recited in each respective claim). For example, claim 9 recites “wherein the source audience and the target audience at least partially overlap”. This is an abstract limitation which further sets forth the abstract idea encompassed by claim 9. This limitation is not an “additional element”, and therefore it is not subject to further analysis under Step 2A- Prong Two or Step 2B. The same rational applies to the limitations recited in each of the other dependent claims, which are not being reproduced here for the sake of brevity.
The Examiner has therefore determined that the additional elements, or combination of additional elements, do not integrate the abstract idea into a practical application. Accordingly, the claim(s) is/are directed to an abstract idea (Step 2A – Prong two: NO).
Step 2B:
In step 2B, the claims are analyzed to determine whether any additional element, or combination of additional elements, is/are sufficient to ensure that the claims amount to significantly more than the judicial exception. This analysis is also termed a search for an "inventive concept." An "inventive concept" is furnished by an element or combination of elements that is recited in the claim in addition to (beyond) the judicial exception, and is sufficient to ensure that the claim as a whole amounts to significantly more than the judicial exception itself. Alice Corp., 134 S. Ct. at 2355, 110 USPQ2d at 1981 (citing Mayo, 566 U.S. at 72-73, 101 USPQ2d at 1966)
As discussed above in “Step 2A – Prong 2”, the requirement to execute the claimed steps/functions “implemented by a computer program executing on a computing device” (claims 1 and 8) and/or “a non-transitory computer-readable medium with instructions stored thereon that, when executed by a processor, cause the processor to perform operations” (claims 12) is equivalent to adding the words “apply it” on a generic computer and/or mere instructions to implement the abstract idea on a generic computer. These limitations therefore do not qualify as “significantly more” (see MPEP 2106.05(f)).
As discussed above in “Step 2A – Prong 2”, the recited additional element(s) of “wherein the at least one source includes (i) a network-accessible database,(ii) computer programs executing on computing devices that are associated with members of the source audience, or (iii) Internet cookies executing on computing devices that are associated with members of the source audience” (claim 4) serves merely to generally link the use of the judicial exception to a particular technological environment or field of use. These limitations therefore do not qualify as “significantly more” (see MPEP 2106.05(g)).
As discussed above in “Step 2A – Prong 2”, the recited element(s) of “acquiring multiple input samples corresponding to a source audience from at least one source” (claim 1) and “wherein the at least one source includes (i) a network-accessible database,(ii) computer programs executing on computing devices that are associated with members of the source audience, or (iii) Internet cookies executing on computing devices that are associated with members of the source audience” (claim 4) and “acquiring multiple input samples corresponding to a source audience” (claim 8) and “acquiring content corresponding to a source audience” (claim 12), and “acquiring content corresponding to a source audience” (claim 17), even if considered to be “additional elements”, would simply append insignificant extra-solution activity to the judicial exception, (e.g., mere pre-solution activity, such as data gathering, in conjunction with an abstract idea;). These additional element(s), taken individually or in combination, additionally amount to well-understood, routine and conventional activities previously known to the industry, specified at a high level of generality, appended to the judicial exception. These additional elements, taken individually or in combination, are well-understood, routine and conventional to those in the field of advertising and user profiling. These limitations therefore do not qualify as “significantly more”. (see MPEP 2106.05(d)).This conclusion is based on a factual determination. The determination that receiving data/messages over a network is well-understood, routine, and conventional is supported by Symantec, 838 F.3d at 1321, 120 USPQ2d at 1362; TLI Communications LLC v. AV Auto. LLC, 823 F.3d 607, 610, 118 USPQ2d 1744, 1745 (Fed. Cir. 2016); OIP Techs., Inc., v. Amazon.com, Inc., 788 F.3d 1359, 1363, 115 USPQ2d 1090, 1093 (Fed. Cir. 2015); buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355, 112 USPQ2d 1093, 1096 (Fed. Cir. 2014), and MPEP 2106.05(d)(II), which note the well-understood, routine, conventional nature of receiving data/messages over a network. Furthermore, Examiner takes Official Notice that these steps were well-understood, routine, and conventional at the effective filing date of the claimed invention. Furthermore, the lack of technical detail/description in Applicant’s own specification provides implicit evidence that these steps were well-understood, routine, and conventional.
Viewing the additional limitations in combination also shows that they fail to ensure the claims amount to significantly more than the abstract idea. When considered as an ordered combination, the additional components of the claims add nothing that is not already present when considered separately, and thus simply append the abstract idea with words equivalent to “apply it” on a generic computer and/or mere instructions to implement the abstract idea on a generic computer, generally link the abstract idea to a particular technological environment or field of use, append the abstract idea with insignificant extra solution activity associated with the implementation of the judicial exception, (e.g., mere data gathering, post-solution activity), and appended with well-understood, routine and conventional activities previously known to the industry.
Dependent claims 5, 7, 9-11, 13-16, and 22 fail to include any additional elements. In other words, each of the limitations/elements recited in respective dependent claims 5, 7, 9-11, 13-16, and 22 is/are further part of the abstract idea as identified by the Examiner for each respective dependent claim (i.e. they are part of the abstract idea identified by the Examiner to which each respective claim is directed).
The Examiner has therefore determined that no additional element, or combination of additional claims elements is/are sufficient to ensure the claim(s) amount to significantly more than the abstract idea identified above (Step 2B: NO).
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
v Claims 1, 4, 5, and 7 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for pre-AIA the inventor(s), at the time the application was filed, had possession of the claimed invention. The requirement for an adequate disclosure ensures that the public receives something in return for the exclusionary rights that are granted to the inventor by a patent, and sets forth the minimum requirements for the quality and quantity of information that must be contained in the patent to justify the grant.
v Claim 1 has been amended to require “producing a linguistic model that is representative of one or more rules that are generated based on the multiple linguistic features identified for the multiple input samples and that specify how to generate new language or adjust existing language to increase affinity with the source audience”. This limitation contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for pre-AIA the inventor(s), at the time the application was filed, had possession of the claimed invention.
Applicant’s specification appears to alternate between references to a “linguistic profile” and a “linguistic model”. As best as understood by the Examiner, the claimed linguistic model is the same thing as a “linguistic profile” for the user. Although the specification also refers to a “fingerprint” for a source audience (e.g., [0147] of the published disclosure), this appears to be distinct from the linguistic model, as the fingerprint appears to require consideration of a reference audience (Examiner notes that the details regarding such fingerprints is sparse). As best as understood, the “linguistic model” generally indicates/represents linguistic characteristics/features employed (e.g., word usage, word placement, sentence structure, lemmatization, grammar terminology used) and/or linguistic characteristic usage patterns of the source audience (see paragraphs [0024] & [0080] & [0099] & [0054]-[0055] & [0064]-[0065] of the published disclosure). The specification generally suggests that this model can be used to generate “affinity language” for use in communications targeted to the source audience. Details regarding the generation of the language is sparse, although this step appears to involve using the model to generate language that is similar to or mimics the linguistic characteristics/features and/or linguistic characteristic usage patterns of the source/target audience (see paragraphs [0025] & [0083] & [0100] & [0056] & [0067] & [0139]-[0140]). Applicant’s specification generally suggests that the language generated (the “affinity language”) based on the linguistic characteristics/features employed by the source audience and/or linguistic characteristic usage patterns of the source audience can increase the likelihood the source/target audience will positively receive or engage with (i.e., increases the effectiveness of) content incorporating this language (see paragraphs [0008] & [0051] & [0100] & [0067] of the published disclosure). With respect to “rules”, Applicant’s specification appears to suggest certain rules may be generated and/or used by the linguistic modeling module to correlate linguistic characteristics/features and/or linguistic characteristic usage patterns to psychographic profiles (see [0065]-[0066]). Paragraph [0067] also refers to “rules generated by the linguistic modeling module based on linguistic patterns in the input sample(s)”, although no additional details are provided.
Having established what is described by Applicant’s specification, it is evident that Applicant’s disclosure does not demonstrate possession of a linguistic model representative of one or more rules that specify how to generate new language or adjust existing language to increase affinity with the source audience. The specification’s reference to rules appears to be rules that correlate linguistic characteristics/features and/or linguistic characteristic usage patterns to psychographic profiles. These rules do not appear to be part of the “linguistic model”, and they certainly do not specify how to generate new language or adjust existing language to increase affinity with the source audience.
Examiner notes that although Applicant’s disclosure describes other subsequent processes that are used to refine/adjust language used to communicate with a source audience (e.g., based on tracking their reaction, in order to iteratively increase subsequent effectiveness of subsequently generated language ), these processes appear to be downstream from, and distinct from the generation of the linguistic model itself (see figure 2 tag 209 and the arrow pointing to 204, Fig 9 tag 906, paragraphs [0106]-[0110], [0163]). If these processes are somehow interrelated with each other as part of generating or adjusting the same “linguistic model”, the details are entirely absent.
One of ordinary skill in the art would not recognize, in light of the above-cited pertinent sections of the disclosure, that the written description of the invention provides support for “producing a linguistic model that is representative of one or more rules that are generated based on the multiple linguistic features identified for the multiple input samples and that specify how to generate new language or adjust existing language to increase affinity with the source audience” The disclosure does not support this particular embodiment. A skilled artisan would not have understood that Applicant was in possession of the claimed invention as a whole at the time the application was filed. Per the MPEP section 2163 “if a claim is amended to include subject matter, limitations, or terminology not present in the application as filed, involving a departure from, addition to, or deletion from the disclosure of the application as filed, the examiner should conclude that the claimed subject matter is not described in that application. This conclusion will result in the rejection of the claims affected under 35 U.S.C. 112(a) or pre-AIA 35 U.S.C.112, first paragraph.”
Each of dependent claims 4, 5, and 7 are similarly rejected by virtue of their dependency on this claim.
Applicant should specifically indicate where in the Specification is there support for amendments to claims should Applicant amend in order to practice compact prosecution and reduce potential issues such as 35 U.S.C. §112, 1st paragraph rejections that may arise when claims are amended without support in the Specification. See MPEP § 714.02 (“Applicant should also specifically point out the support for any amendments made to the disclosure.”).
The following is a quotation of 35 U.S.C. 112(b):
(B) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1, 4, 5, and 7 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor, or for pre-AIA the applicant regards as the invention.
v Claim 1 recites the phrase "presenting the written communication, with the affinity language incorporated therein, that is intended for the target audience on a media channel." There is insufficient antecedent basis for this limitation in the claim. The claim previously refers to affinity language for communicating with a target audience, as well as a written communication that incorporates this language. However, neither of these elements provides antecedent basis for a written communication that is intended for the target audience. For the purpose of examination, the phrase “presenting the written communication, with the affinity language incorporated therein, that is intended for the target audience on a media channel” will be interpreted as being “presenting the written communication, with the affinity language incorporated therein, to the target audience on a media channel.”
Each of dependent claims 4, 5, and 7 are similarly rejected by virtue of their dependency on this claim.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102 of this title, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
v Claims 1, 4, 5, and 7 are rejected under 35 U.S.C. 103 as being unpatentable over Solomon et al. (U.S. PG Pub No. 2011/0179116, July 21, 2011 - hereinafter "Solomon”) in view of Roy et al. (U.S. PG Pub No. 2016/0171560, June 16, 2016) in view of in view of Thomas et al. (U.S. PG Pub No. 2018/0276718, September 27, 2018 - hereinafter "Thomas”)
With respect to claim 1, Solomon teaches a method implemented by a computer program executing on a computing device for improving comprehension, persuasion, or clarity of written communications, the method comprising;
acquiring multiple input samples corresponding to a source audience from at least one source; ([0015] “posting of ‘status’ features included in a large number of social network sides…electronic mail (email), text exchanged by chat applications, on-line and/or web based journals, blogs or forums, web search engines…any content authored or produced by a human and received as input may be analyzed…in order to evaluate, determine, classify or identify the personality of such human…and/or converted to text and such text may be analyzed”, [0017]-[0020] “may collect various information…originating from…users A, B, and C…information exchanged by or with users or communicated to/from users A, B, and C…text…posts, emails, and the like may all be captured and analyzed…twitter…analysis unit may analyzed…data produced by users A, B, and C collected as described herein…text analysis”, [0021] “data collection module…obtain any text or other information exchanged between users…text and metadata related to posts, status updates, chat messages and/or emails…obtained”, [0025] “posts or status updates…email…text exchanged by chat applications…blogs, forums, or search strings”, [0033])
for each input sample of the multiple input samples, examining content of that input sample to identify a linguistic feature of a corresponding member of the source audience, wherein the linguistic feature is representative of a syntax, a grammar, a terminology, or a cadence of the corresponding member ([0024]-[0026] “data, text, or other information collected as described herein, may be analyzed…based on text analysis…any applicable analysis may be employed…word spotting or word combinations analysis…terms used…structures or other lin