DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
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.
This action is in response to communications filed on 11/13/2025.
Claims 1 & 15-21 are cancelled. Claims 2-14 remain pending. Claims 2-14 have been examined and are rejected.
Priority
This application is a continuation of application 17/244,868 now patent 11,539,655, which is a continuation of application 15/782,635 filed 10/12/2017, now patent 11,050,704.
Response to Arguments
Applicant’s arguments filed in the communications above have been fully considered but are moot because the arguments do not apply to the combination of references being used in the current rejection.
For at least these reasons, applicant’s arguments are considered not persuasive.
Claim Rejections – 35 USC § 101
The previous rejection of Claims 2-21 under 35 U.S.C. 101 is withdrawn in view of amendments filed 11/13/2025.
Double Patenting
The non-statutory 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 time wise extension of the "right to exclude" granted by a patent and to prevent possible harassment by multiple assignees. A non-statutory obviousness-type 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); and 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 § 2146 et seq. 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.
Claims 2-21 are rejected on the ground of non-statutory obviousness-type double patenting as being unpatentable over the claims of U.S. Patent Numbers: 11,539,655; 11,050,704; 11,687,573; 10,956,459; 10,346,449; 11,570,128; and U.S. Application Number: 18/104,291.
Although the conflicting claims are not identical, they are not patentably distinct from each other because the subject matter claimed in the instant application is fully disclosed in the patent and is covered by the patent since the patent and the application are claiming common subject matter. Furthermore, there is no apparent reason why applicant was prevented from presenting claims corresponding to those of the instant application during prosecution of the application which matured into a patent. See MPEP § 804.
With respect to application 18/104,291, this is a provisional non-statutory obviousness-type double patenting rejection because the patentably indistinct claims have not in fact been patented.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 2-6, 10, 12, & 14 are rejected under 35 U.S.C. 103 as being unpatentable over N et al. (US 2016/0147760 A1) in view of Vijay et al. (US 2011/0010239 A1) in view of Ferreira et al. (US 2018/0174190 A1).
With regard to Claim 2, N teaches:
A method comprising:
receiving data signals to cause formation of an electronic message; (receiving a draft social media post [N: 0069; 0134]);
identifying one or more message performance metric values assigned to one or more portions of the electronic message; (determine a predicted engagement score for a draft of a social post based on various features of the draft of the social post [N: 0030-31]);
analyzing, by a performance analyzer, the electronic message to identify one or more component characteristics, the component characteristics being analyzed to identify a pattern associated with a subpopulation of users: determining, at a performance metric adjuster, an equivalent to a portion of the electronic message to enhance a performance metric value including a rate of transmission metric, the equivalent being determined by performance metric adjuster identifying one or more components of the electronic message while suggesting an adapted electronic message by a performance management platform, the equivalent being also selected by the drafting user from one or more equivalent terms determined to predictively enhance the performance level of the adapted electronic message; (receiving a draft of a social media post, identify one or more alternative words that have a similar meaning as a query word that is determined by the system or indicated by the drafter, determine a predicted engagement score for each of the alternative words and provide the alternative words and their engagement scores to the user so that the user can decide whether to use any of the alternative words based on the provided engagement scores in order to increase the likelihood that members of a given community of social media users will engage with the user's social media post [N: 0012; 0129; 0136; 0082; Figs. 4A-4B], wherein the level of social media engagement comprises interactions between one or more social media users and a social media post such as “likes,” replies, re-posts, shares, etc. (i.e. a rate of transmission metric) [N: 0013; 0027]);
substituting the equivalent in place of the portion to form the adapted electronic message; (a selection of an alternative word in the alternative word selection control causes a substitution of the query word with the selected alternative word [N: 0124]);
and publishing, by a message generator, the adapted electronic message in a plurality of formats, the adapted electronic message and each of the plurality of formats corresponding to one or more social networking platforms and the pattern to present on a user interface on a computing device; (the marketer can provide a social media post to the social media marketing system [N: 0040], wherein the social media marketing system may communicate with multiple social networking systems via the network [N: 0034] and the one or more social media systems can post the social media posts (whether text or otherwise) to a social media graphical user interface (or “wall”) of one or more users of the social media system [N: 0038]).
However, N does not teach (where underlining indicates the portion of each limitation not taught):
the equivalent being determined by performance metric adjuster identifying one or more components of the electronic message while generating an adapted electronic message by a performance management platform, the equivalent being also selected automatically by performance metric adjuster from one or more equivalent terms determined to predictively enhance the performance level of the adapted electronic message;
receiving data to set a time at which the adapted electronic message is to be published; and publishing, by a message generator, at the time, the adapted electronic message.
In a similar field of endeavor involving predicting performance of advertisements, Vijay discloses:
the equivalent being determined by performance metric adjuster identifying one or more components of the electronic message while generating an adapted electronic message by a performance management platform, the equivalent being also selected automatically by performance metric adjuster from one or more equivalent terms determined to predictively enhance the performance level of the adapted electronic message; (based on predicted performances of advertisement variations, one or more best/optimal advertisement variations are recommended or provided to the advertisement campaign manager, wherein the optimal variation may be automatically implemented or presented for the advertisement campaign manager to approve for implementation and, upon such approval, implementing the recommendation [Vijay: 0041; Fig. 3]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify N in view of Vijay in order to automatically generate an adapted electronic message in the system of N.
One of ordinary skill in the art would have been motivated to combine N with Vijay as doing so would allow the optimal modified message to be identified and utilized without requiring manual selection by the marketing drafter, thereby improving distribution efficiency.
However, N-Vijay does not teach (where underlining indicates the portion of each limitation not taught):
receiving data to set a time at which the adapted electronic message is to be published; and publishing, by a message generator, at the time, the adapted electronic message.
In a similar field of endeavor involving optimizing user engagement of shared digital content, Ferreira discloses:
receiving data to set a time at which the adapted electronic message is to be published; and publishing, by a message generator, at the time, the adapted electronic message; (a user of the social networking system can manage when the social networking system will post digital content items and includes a schedule share option to schedule a post in the future [Ferreira: 0094]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify N-Vijay in view of Ferreira in order to receive data to set a time at which the adapted electronic message is to be published in the system of N-Vijay.
One of ordinary skill in the art would have been motivated to combine N-Vijay with Ferreira as doing so would allow the posting of digital content items to be scheduled during timeframes with the highest predicted user engagement scores [Ferreira: 0134].
With regard to Claim 3, N-Vijay-Ferreira teaches:
The method of claim 2, wherein the one or more message performance metric values includes a threshold range of performance metric values; (a user can set a threshold specifying a minimum user engagement, a maximum user engagement, or a range of user engagement that the system can then utilize for selecting when to schedule posts and/or whether to reschedule posts [Ferreira: 0021]).
With regard to Claim 4, N-Vijay-Ferreira teaches:
The method of claim 2, wherein the message performance metric values test whether values of a monitored component characteristic comply with a defined set of values; (determining a predicted engagement score for each of the one or more alternative words [N: 0076; 0136], and determining an engagement level for a social media post received by the social media monitor that was submitted to the social media system [N: 0062]. Ferreira teaches determining whether the actual user engagement score satisfies a threshold [Ferreira: 0136; 0046; 0021]).
With regard to Claim 5, N-Vijay-Ferreira teaches:
The method of claim 2, wherein the message performance metric values test whether values of a performance metric comply with a defined set of values; (determining a predicted engagement score for each of the one or more alternative words [N: 0076; 0136], and determining an engagement level for a social media post received by the social media monitor that was submitted to the social media system [N: 0062]. Ferreira teaches determining whether the actual user engagement score satisfies a threshold [Ferreira: 0136; 0046; 0021]).
With regard to Claim 6, N-Vijay-Ferreira teaches:
The method of claim 2, wherein the one or more message performance metric values determine if formation of the electronic message is compliant with a value of the performance criteria; (determining a predicted engagement score for each of the one or more alternative words [N: 0076; 0136], and determining an engagement level for a social media post received by the social media monitor that was submitted to the social media system [N: 0062]. Ferreira teaches determining whether the actual user engagement score satisfies a threshold [Ferreira: 0136; 0046; 0021]).
With regard to Claim 10, N-Vijay-Ferreira teaches:
The method of claim 2, further comprising:
and analyzing a predicted value of engagement to determine if it comports with the message performance criterion; (determining a predicted engagement score for each of the one or more alternative words [N: 0076; 0136], and determining an engagement level for a social media post received by the social media monitor that was submitted to the social media system [N: 0062]. Ferreira teaches determining whether the actual user engagement score satisfies a threshold [Ferreira: 0136; 0046; 0021]).
With regard to Claim 12, N-Vijay-Ferreira teaches:
The method of claim 2, further comprising: configuring a performance management platform to access a data repository to identify an alternate component for the electronic message if the predicted value of the component attribute of the electronic message is non-compliant; (utilizing a predictive model to determine whether performing a word substitution would increase the level of social media engagement the social media post will attract within a given community [N: 0025; 0076]. Ferreira teaches a user can set a threshold specifying a minimum user engagement for a post to avoid postings below the specified threshold [Ferreira: 0021-22]).
With regard to Claim 14, N-Vijay-Ferreira teaches:
The method of claim 2 wherein a message performance criterion comprises: a value indicative of one or more performance metrics including data representing an engagement metric, an impression metric, a link activation metric, a shared indication metric, a follower indication metric, a number of interactions per unit time, and an engagement value per unit time; (determining a predicted engagement score for each of the one or more alternative words [N: 0076; 0136]. Ferreira teaches the amount of engagement can be based on likes, comments, shares, views [Ferreira: 0026]. Vijay teaches advertisement performance can comprise various types of information, measures, goals, priorities, or metrics, whether supplied by an advertiser, automatically obtained or determined, or a combination of both, and can include click-through-rate (CTR), cost-per click (CPC), cost-per-action (CPA), cost-per-impression (CPM) performance-based billing, unique or specific user-defined advertisement performance or advertisement campaign performance measures, etc. [Vijay: 0016]).
Claims 7-9 & 13 are rejected under 35 U.S.C. 103 as being unpatentable over N et al. (US 2016/0147760 A1) in view of Vijay et al. (US 2011/0010239 A1) in view of Ferreira et al. (US 2018/0174190 A1) as applied to Claim 2 above, and further in view of Ray et al. (US 2018/0189668 A1).
With regard to Claim 7, N-Vijay-Ferreira teaches:
The method of claim 2, wherein the one or more message performance metric values includes data representing a value; (determining a predicted engagement score for each of the one or more alternative words [N: 0076; 0136]. Ferreira teaches the amount of engagement can be based on likes, comments, shares, views [Ferreira: 0026]. Vijay teaches advertisement performance can comprise various types of information, measures, goals, priorities, or metrics, whether supplied by an advertiser, automatically obtained or determined, or a combination of both, and can include click-through-rate (CTR), cost-per click (CPC), cost-per-action (CPA), cost-per-impression (CPM) performance-based billing, unique or specific user-defined advertisement performance or advertisement campaign performance measures, etc. [Vijay: 0016]).
However, N-Vijay-Ferreira does not teach (where underlining indicates the portion of each limitation not taught):
wherein the one or more message performance criteria includes data representing a value as a function of time;
In a similar field of endeavor involving predictive analytics for selecting better textual features to increase the predicted and actual performance of content dissemination in social networks [Ray: 0027-28], Ray discloses:
wherein the one or more message performance criteria includes data representing a value as a function of time; (graphing a number of “shares” vs. time as a dissemination growth curve [Ray: 0041-43; Figs. 3-4]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify N-Vijay-Ferreira in view of Ray in order to provide message performance criteria including data representing a value as a function of time in the system of N-Vijay-Ferreira.
One of ordinary skill in the art would have been motivated to combine N-Vijay-Ferreira with Ray as doing so would allow the social media post performance to be analyzed to determine whether sharing of the social media post is indicative of viral (V) or non-viral (NV) type of dissemination [Ray: 0047].
With regard to Claim 8, N-Vijay-Ferreira teaches the method of claim 2, but does not teach:
wherein the one or more message performance metric values define a performance curve by a which a predicted engagement value per unit time comports with the performance curve.
In a similar field of endeavor involving predictive analytics for selecting better textual features to increase the predicted and actual performance of content dissemination in social networks [Ray: 0027-28], Ray discloses:
wherein the one or more message performance metric values define a performance curve by a which a predicted engagement value per unit time comports with the performance curve; (calculate a future shares value 324 (i.e. predicted engagement value) using the current curve fit parameters 612 for curve 310 in the Virality Stats table 600 [Ray: 0052; Figs. 3-5]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify N-Vijay-Ferreira in view of Ray in order to define a performance curve by a which a predicted engagement value per unit time comports with the performance curve in the system of N-Vijay-Ferreira.
One of ordinary skill in the art would have been motivated to combine N-Vijay-Ferreira with Ray as doing so would allow the social media post performance to be analyzed to determine whether sharing of the social media post is indicative of viral (V) or non-viral (NV) type of dissemination [Ray: 0047].
With regard to Claim 9, N-Vijay-Ferreira teaches the method of claim 2, but does not teach:
identifying a performance curve associated with at least one of the performance metric values.
In a similar field of endeavor involving predictive analytics for selecting better textual features to increase the predicted and actual performance of content dissemination in social networks [Ray: 0027-28], Ray discloses:
identifying a performance curve associated with at least one of the performance metric values; (graphing a number of “shares” vs. time as a dissemination growth curve [Ray: 0041-43; Figs. 3-4]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify N-Vijay-Ferreira in view of Ray in order to identify a performance curve associated with at least one performance metric in the system of N-Vijay-Ferreira.
One of ordinary skill in the art would have been motivated to combine N-Vijay-Ferreira with Ray as doing so would allow the social media post performance to be analyzed to determine whether sharing of the social media post is indicative of viral (V) or non-viral (NV) type of dissemination [Ray: 0047].
With regard to Claim 13, N-Vijay-Ferreira teaches:
The method of claim 2, further comprising: performing a technique to determine if an alternate component matches with the message performance criterion; (utilizing a predictive model to determine whether performing a word substitution would increase the level of social media engagement the social media post will attract within a given community [N: 0025; 0076]).
However, N-Vijay-Ferreira does not teach (where underlining indicates the portion of each limitation not taught):
performing a curve fitting technique to determine if an alternate component matches with the message performance criterion.
In a similar field of endeavor involving predictive analytics for selecting better textual features to increase the predicted and actual performance of content dissemination in social networks [Ray: 0027-28], Ray discloses:
performing a curve fitting technique to determine if an alternate component matches with the message performance criterion; (perform curve fitting, wherein each of the curves 310-316 is fit to the input shares data using a curve fitting technique, such as “Least Squares” (or other curve fitting technique) to find the parameters of the curve that gives the least squared error to the shares data [Ray: 0044; 0052; Figs. 3-5]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify N-Vijay-Ferreira in view of Ray in order to perform a curve fitting technique in the system of N-Vijay-Ferreira.
One of ordinary skill in the art would have been motivated to combine N-Vijay-Ferreira with Ray as doing so would allow the social media post performance to be analyzed to determine whether sharing of the social media post is indicative of viral (V) or non-viral (NV) type of dissemination [Ray: 0047].
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over N et al. (US 2016/0147760 A1) in view of Vijay et al. (US 2011/0010239 A1) in view of Ferreira et al. (US 2018/0174190 A1) as applied to Claim 2 above, and further in view of Hill (US 2011/0038547 A1).
With regard to Claim 11, N-Vijay-Ferreira teaches the method of claim 2, but does not teach:
wherein the message performance metric value includes longevity of the electronic message.
In a similar field of endeavor involving determining customer sentiment towards advertisements, Hill discloses:
wherein the message performance metric value includes longevity of the electronic message; (calculating the wear-out or longevity score of an advertisement based, at least in part, upon the engagement score, impact score, and appeal score [Hill: 0064; Claim 19]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify N-Vijay-Ferreira in view of Hill in order to utilize longevity as message performance criteria in the system of N-Vijay-Ferreira.
One of ordinary skill in the art would have been motivated to combine N-Vijay-Ferreira with Hill as doing so would allow consumer fatigue to be considered when determining consumer engagement and placing advertisements [Hill: 0064].
Conclusion
Applicant’s amendment necessitated any new grounds of rejection presented in this office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure:
Xu et al. (US 2016/0189207 A1) which teaches providing enhanced content delivery according to A/B testing and analysis/filtering of the A/B testing results [Xu: 0109; Fig. 4].
In the case of amendments, Applicant is respectfully requested to indicate the portion(s) of the specification which dictate(s) the structure relied on for proper interpretation and support, for ascertaining the metes and bounds of the claimed invention.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to AUSTIN J MOREAU whose telephone number is (571) 272-5179. The examiner can normally be reached Monday-Friday 9:00 - 6:00 ET.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Brian Gillis can be reached on 571-272-7952. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/AUSTIN J MOREAU/Primary Examiner, Art Unit 2446