AIA
CLAIM SET 3
This action is responsive to the application
Inventor Zhang, RuHan Seattle
Moulton, Jeffrey San Fran
Gordenier, Nicholas Georgetown CO
Assignee InstaCart, aka MapleBear
Amended 1 10 19
New none
Withdrawn 4 13
Canceled none
Claims 1-3 5-12, 14- 20 reviewed.
Effective date 20 December 2022
Response to Remarks
Applicant amendment and remarks fully considered but not fully persuasive.
DP maintained; see explanation below.
101
Maintained.
As to Applicant remarks
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Examiner
It’s computer implementing an idea. If that were patentable then one could patent a hedge (Bilski) or a clearinghouse (Alice), computer implemented.
As to Applicant remarks
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Examiner
Simulating marketing can be done mentally or with aid of paper and pencil.
Computer not necessary.
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Computer unnecessary repeated at page 303-304 of Principles of Marketing by Phil Kotler.
Principles-of-Marketing-1613761555.pdf (by Phil Kotler 2010)
C:\Users\bbaggot\Downloads\Principles-of-Marketing-1613761555.pdf
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As to Applicant remarks
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Examiner
It’s computer implementing an idea e.g. simulated marketing. If that were patentable then one could patent a hedge (Bilski) or a clearinghouse (Alice), computer implemented.
OBVIOUSNESS DOUBLE PATENTING
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP §§ 706.02(l)(1) - 706.02(l)(3) for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/process/file/efs/guidance/eTD-info-I.jsp.
The claims are rejected on the ground of provisional nonstatutory double patenting as unpatentable over claims of 18084938. The claims here are obvious variant of claims filed 6 months before by same assignee in 18084938. Both offline simulations for online concierge gathering campaign data for determining or deriving a metric and simulation output results in select a variant (18084938) aka content (18213761). Drawings nearly same (Fig 1 below). Spec likewise. The titles differ only in a semantic distinction (variant adjustment instead of configurable parameter, but configuring is producing a variant and the known adjustment ≈ configured parameter)
US Ser 18213761 OFFLINE SIMULATION TO TEST CONFIGURABLE PARAMETER
US Ser 18084938 OFFLINE SIMULATION OF EXPERIMENTS WITH VARIANT ADJUSTMENTS
o obtaining by an online system logged data describing a set of historical content delivery opportunities, wherein a set of baseline content selection parameters were used by a content selection process to select content for the set of historical content delivery opportunities;
o generating a set of hydrated content items based on the content items in the logged data
o appending the set of hydrated candidate content items with metadata characterizing metrics for delivery of the hydrated candidate content items
o performing by the online system a plurality of offline simulations of the content selection process with the hydrated candidate content items, using a pluralty of sets of test content selection parameters to determine a first set of simulated winning content items, wherein each set of test content selection parameters is different than the set of baseline content selection parameters;
o deriving by the online system one or more simulated output metrics for evaluating the set of test content selection parameters based on the first set of simulated winning content items;
o selecting by the online system between at least the set of test content selection parameters and the set of baseline content selection parameters, wherein the selecting is based on the one or more simulated output metrics from the set of offline simulations to obtain a set of selected content selection parameters;
o configuring by the online system an online content selection process using the selected content selection parameters; and
o executing by the online system the online content selection process to select a content item from a plurality of candidaqte content items
o transmitting by the online system the selected content item to a client device, causing presentation of the selected content item in a user interface of a client device in association with operation of the online system.
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1. A method comprising, [ performed at a computer system comprising a processor and a computer-readable medium,]
O identifying by an online system a plurality of content campaigns for experiments of a plurality of experimental variants, each content campaign having an associated presentation budget;
O for each content campaign in the plurality of content campaigns:
- determining by the online system a set of campaign metrics for the content campaign for each of the plurality of experimental variants by presentation of the content campaign with the plurality of experimental variants during an experimental time period until the associated presentation budget for the content campaign is reached ,comprising
determining a total amount of processor or memory resources expended by one or more processors of the online system or one or more storage media of the online system during the experimental period in association with presentation of the content campaign to one or more client devices , and
- determining by the online system a set of adjusted campaign metrics for the content campaign for each of the experimental variants based on the set of campaign metrics including the total amount of processor or memory resources expended and an adjustment based on a portion of the presentation budget used by the experimental variant relative to a fair value of the experimental variant;
O determining by the online system a set of simulated experimental results for each experimental variant of the plurality of experimental variants by combining the set of adjusted campaign metrics associated with the experimental variant for each of the plurality of content campaigns; and
O based on the set of simulated experimental results, selecting by the online system an experimental variant for presentation of content item
O causing by the online system, presentation of the content item on one or more client devices associated with customers of the online system according to the selected experimental variant of the content campaign
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Using hydrated content ie filtering (18213761) is obvious for targeted marketing (18084938)
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.
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. The Claim(s) is/are directed to one or more abstract idea(s). The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the abstract idea(s).
Step 1
The independent claims and dependents fall within 101 statutory categories (1 process 11 article of manufacture 20 machine).
Step 2a
Claims
1. A method comprising, [ performed at a computer system comprising a processor and a computer-readable medium,]
O identifying by an online system a plurality of content campaigns for experiments of a plurality of experimental variants, each content campaign having an associated presentation budget;
O for each content campaign in the plurality of content campaigns:
- determining by the online system a set of campaign metrics for the content campaign for each of the plurality of experimental variants by presentation of the content campaign with the plurality of experimental variants during an experimental time period until the associated presentation budget for the content campaign is reached ,comprising
determining a total amount of processor or memory resources expended by one or more processors of the online system or one or more storage media of the online system during the experimental period in association with presentation of the content campaign to one or more client devices
, and
- determining by the online system a set of adjusted campaign metrics for the content campaign for each of the experimental variants based on the set of campaign metrics including the total amount of processor or memory resources expended and an adjustment based on a portion of the presentation budget used by the experimental variant relative to a fair value of the experimental variant;
O determining by the online system a set of simulated experimental results for each experimental variant of the plurality of experimental variants by combining the set of adjusted campaign metrics associated with the experimental variant for each of the plurality of content campaigns; and
O based on the set of simulated experimental results, selecting by the online system an experimental variant for presentation of content item
O causing by the online system, presentation of the content item on one or more client devices associated with customers of the online system according to the selected experimental variant of the content campaign
Bold abstract idea [‘apply it’] MPEP 2105-2106
The broadest reasonable interpretation of simulating is running through a trial of what might happen.
Simulating can be done without a device (Merriam-Webster 3a, below).
Or with a simulating device (Merriam-Webster (3b, below).
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The claim is simulating for targeted marketing
In light of the 7 January 2019 Patent Eligibility Guidance (PEG), the claims steps set forth
Mental Processes such as
concepts performed in the human mind (including an observation, evaluation, judgement, opinion)
Certain Methods of Organizing Human Activity such as
fundamental economic principles or practices (including hedging, insurance, mitigating risk)
commercial or legal interactions (including agreements in the form of contracts; legal obligations; advertising, marketing or sales activities or behaviors; business relations)
managing personal behavior or relationships or interactions between people (including social activities, teaching, and following rules or instructions)
In claims 1, 10, 19 simulating selecting content, presentation to user
MENTAL PROCESS, Concepts Relating To Data Comparisons That Can Be Performed Mentally Or Are Analogous To Human Mental Work
LONG STANDING COMMERCIAL PRACTICE
ORGANIZING HUMAN ACTIVITY
Applicant computer-implements Long Standing Commercial Practice & Basic Economics.
Computer implemented hedging Bilski
Computer implemented clearinghouse Alice
Computer implemented mental process, long standing commercial practice HERE
US Ser 18084938
US Ser 18084938
Elec Pwr Grp
1. A method comprising, [ performed at a computer system comprising a processor and a computer-readable medium,]
O identifying by an online system a plurality of content campaigns for experiments of a plurality of experimental variants, each content campaign having an associated presentation budget;
O for each content campaign in the plurality of content campaigns:
- determining by the online system a set of campaign metrics for the content campaign for each of the plurality of experimental variants by presentation of the content campaign with the plurality of experimental variants during an experimental time period until the associated presentation budget for the content campaign is reached, and
- determining by the online system a set of adjusted campaign metrics for the content campaign for each of the experimental variants based on the set of campaign metrics and an adjustment based on a portion of the presentation budget used by the experimental variant relative to a fair value of the experimental variant;
O determining by the online system a set of simulated experimental results for each experimental variant of the plurality of experimental variants by combining the set of adjusted campaign metrics associated with the experimental variant for each of the plurality of content campaigns; and
O based on the set of simulated experimental results, selecting by the online system an experimental variant for presentation of content item
O causing by the online system, presentation of the content item on one or more client devices associated with customers of the online system according to the selected experimental variant of the content campaign
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Simulation
+
Collecting info,
analyzing it,
displaying certain results.
The independent claims implement the abstract idea by generic elements. The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the claims are directed to an abstract idea with additional generic computer elements do not add a meaningful limitation to the abstract idea because they would be generic in any computer implementation. The claims in ordered combination are just the abstract idea implemented on a computer, the ordered combination limitations “spell out” how to computer implement it, Enfish.
Prong 1 answered “YES”, the next question in Prong 2 is whether there is an integrated practical application. This judicial exception is not integrated into a practical application. In particular, the claim recites additional element to perform the claim steps. The elements are recited at a high-level of generality such that it amounts no more than mere instructions to apply the exception using a generic computer component. Accordingly, these additional elements do not integrate the abstract idea into a practical application for lack of any meaningful limits on practicing the abstract idea. The additional elements present only a particular technological environment.
The additional elements are not sufficient to amount to significantly more than the judicial exception because the claims do not provide improvements to another technology or technical field, improvements to the functioning of the computer itself, and do not provide meaningful limitations beyond general linking the use of an abstract idea to a particular technological environment. The limitations (those beyond the abstract idea) do not improve the technical field that the abstract idea limitations invoke. Moreover, these generic limitations do not constitute significantly more because they are simply an attempt to limit the abstract idea to a particular technological environment, not meaningful limitations beyond generally linking the use of an abstract idea to a particular technological environment. See Alice Corp p 16 of slip op. noting that none of the hardware recited "offers a meaningful limitation beyond generally linking ‘the use of the [method] to a particular technological environment', that is implementation via computers" (citing Bilski 561 US at 610).
Dependent claims neither integrate idea into practical application nor provide significantly more than idea itself.
Collecting info, analyzing it, displaying certain results. EPG
CLAIM 2 11 20
2. The method of claim 1, wherein determining the set of simulated experimental results includes applying an online adjustment determined from another experiment performed online.
Examiner
Idea itself, survey to simulate advertising including collecting info, analyzing it, displaying certain results using generic tool
CLAIM 3 12
3. The method of claim 2, further comprising determining the online adjustment based on a comparison of another set of simulated experimental results with a set of live experimental results
Examiner
(Idea itself, simulate advertising including collecting data, analyzing it, displaying certain results)
CLAIM 5 14
5. The method of claim 3, wherein the live experimental results are determined based on a joint presentation budget between the experimental variants.
Examiner
(Idea itself, simulate advertising including collecting data, analyzing it, displaying certain results)
CLAIM 6 15
6. The method of claim 1, wherein presentation of the content campaign with the plurality of experimental variants occurs at different presentation frequencies.
Examiner
(Idea itself, simulate advertising including collecting data, analyzing it, displaying certain results)
CLAIM 7 16
7. The method of claim 1, wherein presentation of the content campaign with the plurality of experimental variants results in different spend rates of the presentation budget.
Examiner
Idea itself, survey to simulate advertising including collecting info, analyzing it, displaying certain results
CLAIM 8 17
8. The method of claim 1, wherein the plurality of experimental variants includes a control and one or more experimental variations.
Examiner
Idea itself, survey to simulate advertising including collecting info, analyzing it, displaying certain results
CLAIM 9 18
9. The method of claim 1, wherein determining the set of simulated experimental results includes determining a confidence interval based on jackknife resampling of the content campaigns.
Examiner
Idea itself, survey to simulate advertising including collecting info, analyzing it, displaying certain results
Step 2b
Viewed as a whole, the claim elements do not provide meaningful limitations to transform the abstract idea into a patent eligible application of the abstract idea such that the claims amount to significantly more than the abstract idea itself. The claim limitations do not improve upon the technical field that the abstract idea is applied nor do they improve upon any other technical field. The claimed limitations do not improve upon the functioning of the computer itself. Therefore, the claims are rejected under 35 U.S.C. 101 as being directed to non-statutory subject matter.
The additional element(s) or combination of elements in the claim(s) other than the abstract idea amount(s) to medium, processor, generic elements, MPEP 2016.05(d).
The additional elements alone or in combination are not sufficient to amount to significantly more than the judicial exception because the claims do not provide improvements to another technology or technical field, improvements to the functioning of the computer itself, and do not provide meaningful limitations beyond generic linking use of an abstract idea to a particular technological environment. Additionally, the claims are directed to an abstract idea with additional generic computer elements that do not add meaningful limitations to the abstract idea because they require no more than a generic computer to perform generic computer functions that are generic activities previously known to the industry. Moreover, these generic limitations do not lead to an integrated practical application because they are simply an attempt to limit the abstract idea to a particular technological environment, not meaningful limitations beyond generally linking the use of an abstract idea to a particular technological environment. See Alice Corp p 16 of slip op. noting that none of the hardware recited "offers a meaningful limitation beyond generally linking ‘the use of the [method] to a particular technological environment', that is implementation via computers"(citing Bilski 561 US at 610). Viewed as a whole, these additional claim elements do not provide meaningful limitations to transform the abstract idea into a patent eligible application of the abstract idea such that the claims amount to an integrated practical application. The claim limitations do not improve upon the technical field that the abstract idea is applied nor do they improve upon any other technical field. The claimed limitations do not improve upon the functioning of the computer itself.
Moreover, these generic limitations do not constitute significantly more because they are simply an attempt to limit the abstract idea to a particular technological environment, not meaningful limitations beyond generally linking the use of an abstract idea to a particular technological environment. See Alice Corp p 16 of slip op. noting that none of the hardware recited "offers a meaningful limitation beyond generally linking ‘the use of the [method] to a particular technological environment', that is implementation via computers"(citing Bilski 561 US at 610).
Moreover, mere recitation of a machine or medium in the preamble does not make a claim statutory under 35 U.S.C. 101, as seen in the Board of Patent Appeals Informative Opinion Ex Parte Langemyr (Appeal 2008-1495). Moreover, mere mention of a piece of a computer or processing device does not confer patentability. Alice Corporation Pty. Ltd. v CLS Bank International ("Alice Corp") 573 US __ (2014). Incorporating the two-step test espoused in its recent decision in Mayo v. Prometheus 566 U.S. ___ (2012), the Court describes a first inquiry as to whether the claims at issue are directed to a patent-ineligible concept. If so, the Court requires a second inquiry as to whether the elements, individually or in combination, “transform” the nature of the claims into a patent-eligible invention. The Court described this second step as a search for an inventive concept, “i.e., an element or combination sufficient to ensure that the patent in practice amounts to significantly more than a patent upon the [ineligible concept] itself.”
The claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the additional elements merely detail generic elements that implement the abstract idea. The generically recited computer elements do not add a meaningful limitation to the abstract idea. The additional element merely instruct that the execution of the abreact idea occurs on other generic technology, but does not offer any disclosure of any additional technology beyond the abstract idea itself. Moreover, the claim steps as an ordered combination do not present significantly more. The claims are not directed to an improvement in computer functionality like in Enfish v Microsoft, but rather to an abstract idea. The claims "do nothing more than spell out what it means to 'apply it on a computer'”, Intellectual Ventures I 792 F.3d p1371 (citing Alice). Nowhere in the claims or specification is there any indication that the processor, medium do something to improved hardware functionality.
The further elements of the claims are merely directed to further abstract ideas and in ordered combination pose a list of abstract ideas, and invoke merely as a tool what is generic. There is no improvement in these items, but rather they are invoked as a tool to solve a business problem (targeted marketing), not a technical problem.
The claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the additional elements merely detail generic computer processors and software that implement the abstract idea. The generically recited computer elements do not add a meaningful limitation to the abstract idea because they would be generic in any computer implementation. The additional element merely instruct that the execution of the abstract idea occurs on other generic technology, but does not offer any disclosure of any additional technology beyond the abstract idea itself. Moreover, the claim steps as an ordered combination do not present significantly more. The claims are not directed to an improvement in computer functionality like in Enfish v Microsoft, but rather to an abstract idea. The claims "do nothing more than spell out what it means to 'apply it on a computer'”, Intellectual Ventures I 792 F.3d p1371 (citing Alice). Nowhere in the claims or specification is there any indication that the additional elements do something nongeneric such that Applicant has improved computer functionality. Applicant presents an idea for which computers are invoked as a tool.
Here, the claims neither improve the technological infrastructure nor provide particular solutions to challenges. Rather, in ordered combination the claim limitations spell out the steps of calculating a number using generic technology.
In addition to these indisputably generic features, Applicant did not invent any of those features, and the claims do not recite them in a manner that produces a result that overrides the generic use of these known features. DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1258 (Fed. Cir. 2014). When viewed as an ordered combination, the proposed claims recite no more than the sort of “perfectly” generic computer components employed in a customary manner that we have held insufficient to transform the abstract idea into a patent-eligible invention. Intellectual Ventures I LLC v. Symantec Corp., 838 F.3d 1307, 1321 (Fed. Cir. 2016).
We must thus conclude that the claims fail step two as well.
Response to Remarks
Applicant amendment remarks fully considered but not fully persuasive.
DP maintained as the claims are still obvious variants as pointed out above.
101
That nothing is ‘expressly mathematical’ in applicant’s point of view doesn’t change the fact that applicant is manipulating mathematically data sets for targeted marketing.
Applicant does this math for transmitting to targeted client determined by targeted marketing.
The claims steps could be done mentally or with pencil and paper MPEP 2103.04a2 but now are computer implemented with generic additional elements generally applied. While applicant says the steps can’t be performed mentally b/c network environment, that networked environ is the generic additional element. The networked environ no more saves claims here than computer could save the claims in Alice or Bilski.
This is not a case of an integrated practical application but rather simply stating an abstract idea and ‘apply it’ online.
Nevertheless, Applicant might revisit the Spec to see if some amendment could be made.
CONCLUSION
Pertinent prior art cited but not relied upon and already given to applicant
https://bytepawn.com/early-stopping-in-ab-testing.html
Early stopping in A/B testing
Marton Trencseni - Thu 05 March 2020 - Data (Year: 2020)
https://elem.com/~btilly/ab-testing-multiple-looks/part1-rigorous.html
https://web.archive.org/web/20130126071728/https://elem.com/~btilly/ab-testing-multiple-looks/part1-rigorous.html
A/B Testing Rigorously (without losing your job) (Year: 2013)
https://www.evanmiller.org/sequential-ab-testing.html
Simple Sequential A/B Testing (Year: 2015)
https://betatim.github.io/posts/early-stopping/
Early stopping
28 May 2014 (Year: 2014)
https://medium.com/airbnb-engineering/experiments-at-airbnb-e2db3abf39e7#.miqyczkzb
Experiments at Airbnb
May 27, 2014 (Year: 2014)
bbaggot@uspto.gov
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BREFFNI BAGGOT
Primary Examiner
Art Unit 3621
/BREFFNI BAGGOT/ Primary Examiner, Art Unit 3621
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