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 .
DETAILED ACTION
Status of Claims
This action is in reply to the communication filed on 06/12/2026.
Claims 1-20 are currently pending and have been examined.
Response to Applicant’s Arguments
Applicant’s amendments and arguments filed on 06/12/2026 have been fully considered and discussed in the next section. Applicant is reminded that the claims must be given its broadest, reasonable interpretation.
With regard to claims 1-20 rejection under 35 USC § 101:
The Claims Are "Directed to Advertising"—The Potential Use Case of a Technology Does Determine Whether the Claims Recite an Abstract Idea:
Applicant argues that “The Office's rejection is premised on an unsupported conclusion that the claims are directed to "advertising, marketing, or sales activities." (Office Action at page 14.) But this conclusion is based on the potential use case of the claimed technology—not on what the claims actually recite. This is legal error. The proper inquiry under Step 2A Prong One is whether the claim recites a judicial exception—that is, whether the claim language itself sets forth or describes an abstract idea. See MPEP § 2106.07(a) ("the rejection should identify the abstract idea as it is recited (i.e., set forth or described) in the claim and explain why it is an abstract idea"). The inquiry is not whether the claimed technology could be used for a purpose that falls within an abstract idea grouping. Claim 1 does not recite any advertising, marketing, or sales activity. Claim 1 recites: dynamically updating a covisitation graph data structure based on server log data; applying a probabilistic model and covisitation graph to determine expected impressions; and controlling content delivery by setting a flag to selectively suppress a response. None of these recited operations is an advertising, marketing, or sales activity. They are technical operations performed by a computing system. That the claimed technology could be used in connection with advertising is irrelevant to the Prong One analysis—just as the technology in DDR Holdings could be used for advertising or more generally for e-commerce, but the claims were not directed to advertising or e-commerce. See DDR Holdings, 773 F.3d at 1258-59. A claim is not rendered abstract merely because the technology it recites could be applied in a commercial context. To hold otherwise would categorically exclude any technology that has a commercial application, which directly contradicts Bilski, 561 U.S. at 607 ("business methods are not categorically outside of § 101's scope" (page 5/16)”.
Examiner disagrees. dynamically updating a covisitation graph data structure based on server log data; applying a probabilistic model and covisitation graph to determine expected impressions; and controlling content delivery by setting a flag to selectively suppress a response is directed to analyzing the impression data of a visitor of website data and determining results based on the analysis (e.g. controlling delivery of impressions of the directed content based on the delivery rate).
Since analyzing data is part of the abstract idea itself, any improvement obtained by automating the analyzing of the data in an improvement to the abstract idea which is an improvement in ineligible subject matters (see SAP v. Investpic: Page 2, line 22 through Page 3, line 13 - Even assuming that the algorithms claimed are groundbreaking, innovative or even brilliant, the claims are ineligible because their innovation is an innovation in ineligible subject matter because they are nothing but a series of mathematical algorithms based on selected information and the presentation of the results of those algorithms. Thus, the advance lies entirely in the realm of abstract ideas, with no plausible alleged innovation in the non-abstract application realm. An advance of this nature is ineligible for patenting; and Page 10, lines 18-24 - Even if a process of collecting and analyzing information is limited to particular content, or a particular source, that limitations does not make the collection and analysis other than abstract.
As such, the claims as drafted, falls within the “Certain Method of Organizing Human Activity” grouping of abstract ideas namely commercial or legal interactions because they recite advertising, marketing and sales activities or behaviors because they merely gather data (e.g. impression data of user interaction with items and/ or content of a website), analyze the data, determine results based on the analysis (e.g. analyzing the impression response of the user), generate tailored content based on the results, and transmit the tailored content. Accordingly, the claim recites an abstract idea (i.e. “PEG” Revised Step 2A Prong One=Yes).
As thus, these recited operations is an advertising, marketing, or sales activity. They are Not technical operations that result in (a) improve another technology or technical field and (b) improve the functioning of the computer itself and (c) applies the abstract idea with or by use of, a particular machine, which is a generic computer performing generic computer functions and are not seen to recite an improvement to another technology or technical field, an improvement to the functioning of the computer itself. That the claimed technology ( generic computer system (e.g. an additional element) used in connection with advertising is relevant to the Prong One analysis. The claimed computer system which is merely a general-purpose computer . Further more, In DDR Holdings, the court found that the additional elements did amount to more than merely instructing that the abstract idea should be applied on the Internet. “ the additional elements" of the claims in both the DDR decision (new networking protocol) provided the technological solution to a technological problem. In the instant case, there is no arrangement of devices which could be considered "additional elements" and no new networking protocol which could be considered an "additional element". The only additional elements in the instant case are a general-purpose computer with generic computer components which are merely used as tools to apply the abstract idea. As such, the office actions "apply it" characterization is entirely consistent (see MPEP 2106.05(f)). Therefore, Applicant's claimed solution is NOT technological and does not addresses a technological problem.
As thus, the claim analysis conclusion is based on what the claims actually recite. Accordingly, there is no legal error. Accordingly, the claim rejection of claims 1-20 rejection under 35 USC § 101 is maintained.
The Office did not Fail to Analyze the Claims "As a Whole" in Violation of Binding Precedent
Applicant argues that “With regard to claim 1, the Office's rejection does not meaningfully address the specific technical features recited in claim 1, including at least: (a) dynamically updating a covisitation graph data structure based on server log data; (b) applying a probabilistic model and covisitation graph to determine expected impressions, and (c) controlling content delivery by setting a flag to selectively suppress a response. The Office's rejection quotes the claim language but does not explain why any of these specific technical features merely constitute "advertising, marketing or sales activities." Instead, the Office characterizes the entire claim in a single sentence as merely "gather data, analyze the data, determine results based upon the analysis, generate tailored content based on the results, and transmit the tailored content." (Office Action at page 14.) The Office then identifies the only additional elements as "system, server, processor, memory and model." (Office Action at page 14.) This means the Office has swept the covisitation graph, the probabilistic model, the statistical computation, and the flag control mechanism entirely into the abstract idea, thereby leaving nothing but generic hardware for the Prong Two analysis. This is precisely the type of oversimplification that Desjardins prohibits. The Examiner's rejection does not satisfy the requirements of MPEP § 2106.07(a) for formulating a § 101 rejection. MPEP § 2106.07(a) requires that "the rejection should identify the abstract idea as it is recited (i.e., set forth or described) in the claim and explain why it is an abstract idea." (Emphasis added.) The rejection must also "point to the specific claim limitation(s) that recites (i.e., sets forth or describes) the judicial exception" and "explain why those claim limitations set forth or describe a judicial exception." MPEP § 2106.07(a)(I). The Office's rejection does not do this. The rejection quotes the claim language in its entirety (Office Action at pages 13-14) but never explains why any specific claim limitation—such as "maintaining, in the memory, a covisitation graph, the covisitation graph representing a plurality of related websites and dynamically updated based on server log data"—constitutes an advertising, marketing, or sales activity. Quoting claim language is not the same as explaining why that language recites an abstract idea. The MPEP requires the latter. The Office's failure to provide this required explanation is a procedural error under MPEP § 2106.07(a). Similarly, at Step 2A Prong Two, MPEP § 2106.07(a) requires the rejection to "identify any additional elements (specifically point to claim features/limitations/steps) recited in the claim beyond the identified judicial exception" and "evaluate the integration of the judicial exception into a practical application by explaining" why the additional elements do not integrate the exception. The Office identifies only "system, server, processor, memory and model" as additional elements without explaining why the covisitation graph, probabilistic model, statistical computation, and flag control mechanism are not additional elements. This too is a procedural error. In Desjardins, the Appeals Review Panel credited technical benefits disclosed in the specification (including reduced storage, reduced system complexity, and preservation of performance attributes) as technological improvements. Similarly, the Specification here discloses technical improvements including, among others: (1) simplified backend processing because "the backend processing can be simplified in that information on each specific user need not be tracked" (Specification at paragraph [0067]); and (2) a system architecture that operates without requiring user-identifying information: “The systems and methods described herein do not require user-identifying information" and are "privacy-aware" with "[n]o personal identifiers...used in the system and method." (Specification at paragraphs [0097]-[0098]). These are improvements to data privacy technology, system complexity, and system architecture that the Office's analysis does not address. Furthermore, the December 5, 2025 MPEP Memorandum states: "When evaluating a claim as a whole, examiners should not dismiss additional elements as mere 'generic computer components' without considering whether such elements confer a technological improvement to a technical problem, especially as to improvements to computer components or the computer system." As discussed above, the Office's analysis does exactly this by identifying only generic hardware as additional elements while sweeping specific technical features, including the covisitation graph, application of the probabilistic model, and flag control mechanism, into the abstract idea without any explanation ( page 8/16).
Examiner disagrees. What the applicant appears to believe are technical features are merely steps of the abstract idea itself. As clearly articulated in the rejection, updating a data structure based on based on server log data is merely receiving server log data, analyzing the server log data, determining results based on the analysis and generating tailored content (e.g., updating a covisitation graph structure).
Likewise, applying a probabilistic model and covisitation graph to determine expected impressions is merely analizing data and determining results based on the analysis. Finally, setting a flag to suppress a response is merely determining a result based on analyzed data.
As such, contrary to the applicant's assertion otherwise, the examiner has clearly articulated why these limitations are part of the abstract idea itself which means they cannot be considered "additional elements" of the claimed invention.
"Additional elements" are defined as those elements of a claim which are not part of the abstract idea itself. Furthermore, these claim limitations describe a process that is occurring, but do not recite any limitation which involves that actual underlying technology necessary for the steps to occur. Thus, inarguendo, even if the examiner were to agree that the steps are technical they would still not be capable of being an improvement to a technology or a technological solution for the purpose of 35 USC 101.
According to MPEP 2106, improvements rooted in the abstract idea itself cannot be considered an improvement in technology (see MPEP 2106.05(a) - “It is important to note, the judicial exception alone cannot provide the improvement”; and MPEP 2106.05(a)(II) - “However, it is important to keep in mind that an improvement in the abstract idea itself (e.g. a recited fundamental economic concept) is not an improvement in technology”).
Instead, such improvements are improvements to an abstract idea which are improvements in inelligible subject matter (see the SAP v Investpic decision - Page 2, line 22 through Page 3, line 13 - Even assuming that the algorithms claimed are groundbreaking, innovative or even brilliant, the claims are ineligible because their innovation is an innovation in ineligible subject matter because they are nothing but a series of mathematical algorithms based on selected information and the presentation of the results of those algorithms. Thus, the advance lies entirely in the realm of abstract ideas, with no plausible alleged innovation in the non-abstract application realm. An advance of this nature is ineligible for patenting; and Page 10, lines 18-24 - Even if a process of collecting and analyzing information is limited to particular content, or a particular source, that limitations does not make the collection and analysis other than abstract.).
The Desjardins decision is a reminder that one should not include "additional elements" within the scope of the invention as part of the abstract idea itself. As indicated above, every limitation included in the abstract idea is indeed part of the abstract idea itself. As such, the examiner has not identified any "additional elements" as part of the abstract idea itself.
In Desjardins the specification described an applicant invented machine learning model that operated internally in a manner different from traditional machine learning model in that it maintained the trained state of a first training. Thus, when it was later trained to perform a second different task it would not forget how to perform the first task. Thus, this new Desjardins invented machine learning model overcame the problem of catastrophic forgetting that traditional machine learning models suffer from.
As such, it is clear that the "additional element" should have been identified as a machine learning model which protects "performance of the machine learning model on the first machine learning task" when it is retrained on a second machine learning task. It was this newly invented machine learning model, which operated internally in a different manner than traditional machine learning models, that was an improvement over traditional machine learning models that overcame the 101 rejections.
Therefore, it is clear that the Desjardins decision cautions no to include "additional elements" (i.e.. the portion of the claim which recited "a machine learning model" "protecting performance of the machine learning model on the first machine learning task" when retrained) as part of the abstract idea when the specification makes it clear that said limitation is part of a new underlying technology which the applicant has invented.
The instant claims do not recite any underlying technology which the applicant invented. Instead, they merely recite a process being applied using a general-purpose computer and generic computer components as a tool, wherein each and every step of said process falls within one of the enumerated categories. Therefore, any purported improvement obtained by practicing the claimed invention is an improvement to an abstract idea which is merely applied using a general-purpose computer and generic computer components as a tool. Improvements of this nature are improvements to an abstract which are improvements in ineligible subject matter and not improvements in technology (see citations above). As such, the Applicant's arguments are not convincing, and the claim rejection of claims 1-20 rejection under 35 USC § 101 is maintained.
The Office Misstates and Misapplies the Law Regarding "Certain Methods of Organizing Human Activity".
This is legally correct
Applicant argues that “ first,as initial matter, claim 1 does not recite advertising, marketing, or sales activities. Claim 1 recites specific technology for controlling content delivery without requiring user-identifying information by dynamically updating a covisitation graph data structure, applying a probabilistic model to determine expected impressions, and controlling content delivery by setting a flag to selectively suppress a response. Second, that the claimed technology could be used in connection with advertising does not mean the claims recite advertising, marketing, or sales activities. Claims that recite specific technical operations are not rendered abstract merely because they operate in a commercial context. See, e.g., DDR Holdings, 773 F.3d at 1258-59 (finding claims eligible despite operating in an e-commerce environment because they recited a specific technical solution). Further, in contrast to the present claims, the MPEP's examples of claims that recite advertising involve claims directed to the advertising activity itself, such as "displaying an advertisement in exchange for access to copyrighted media" in Ultramercial. See MPEP § 2106.04(a)(2), subsection II.B. The claims here are fundamentally different. Moreover, MPEP § 2106.04(a) states that "it is clear from the body of judicial precedent that software and business methods are not excluded categories of subject matter." The Supreme Court concluded that business methods are not "categorically outside of § 101's scope."Bilski, 561 U.S. at 607. The Office's position—that all steps involved in the performance of advertising, marketing, or sales are automatically part of the abstract idea—would render any claim covering any technology that could be applied in an advertising, marketing, or sales context categorically ineligible, directly contradicting Bilski and DDR Holdings (page 8/16)”. The office’s approach also results in a legal error in the Step 2A Prong Two analysis: an improper identification of "additional elements." By sweeping all specific technical operations and features into the abstract idea, the Office identifies only "system, server, processor, memory and model" as additional elements. (Office Action at page 14.) This error strips the specific technical features—including the covisitation graph, application of the probabilistic model, statistical computation, and flag control mechanism—from the Prong Two analysis entirely, leaving nothing but generic hardware to evaluate. By subsuming all claim limitations into the abstract idea of 'advertising activity,' the Office leaves no technical features for the Prong Two analysis—a result that demonstrates the Prong One characterization is itself erroneous. A proper Prong One analysis that accounts for the specific technical features recited in claim 1, as required by MPEP § 2106.04(d) and § 2106.05(a), as updated by the December 5, 2025 MPEP Memorandum, would not subsume technical features such as a covisitation graph, probabilistic model, statistical computation, and flag control mechanism into the abstract idea of advertising. This is precisely the legal error that the analytical framework set forth in MPEP § 2106.04(d) and § 2106.05(a), as updated by the December 5, 2025 MPEP Memorandum, requires examiners to avoid ( page 10/16)”.
Examiner disagrees. Applicant’s arguments are similar to the one addressed above under section 1. The Claims Are "Directed to Advertising"—The Potential Use Case of a Technology Does Determine Whether the Claims Recite an Abstract Idea. Accordingly, the claim rejection of claims 1-20 rejection under 35 USC § 101 is maintained.
4. The Office did not fail to Perform the Required Improvement Analysis Under MPEP § 2106.04(d)(1)
Applicant argues that “ MPEP § 2106.04(d)(1) (1), as revised by the December 5, 2025 MPEP Memorandum, establishes a two-step procedure for evaluating whether claims are directed to an improvement in technology. First, "the specification should be evaluated to determine if the disclosure provides sufficient details such that one of ordinary skill in the art would recognize the claimed invention as providing an improvement in the functioning of a computer, or an improvement to other technology or a technical field." Second, "if the specification sets forth an improvement in technology or a technical field, the claim must be evaluated to ensure that the claim itself reflects the disclosed improvement." The Office's analysis does not perform either required step. To be clear about the nature of the technical problem and improvement: the internet's content delivery infrastructure previously relied on user-tracking technology (third-party cookies) to enable certain functionalities, including frequency capping. When that user-tracking technology was deprecated for privacy reasons, the functionalities built upon it—including frequency capping—ceased to operate. This is a technical infrastructure problem, not a business problem. The claims recite new technical mechanisms—specifically, the covisitation graph data structure, probabilistic model, and flag control mechanism, as recited in claim 1—that restore and improve upon the lost functionality within the new technological constraints that preserve user privacy. The specification clearly identifies:….. The claims reflect these improvements. the claims reflect these improvements lect these improvements. The claims recite the specific technical architecture, including among other aspects, the covisitation graph, probabilistic model, and flag control mechanism, that provides the disclosed improvements. This satisfies the second step of the MPEP § 2106.04(d)(1) analysis. As stated in the December 5, 2025 MPEP Memorandum, "the claim itself does not need to explicitly recite the improvement described in the specification." Rather, it need only include the components or steps that provide the improvement. The Office's rejection dismisses these improvements as "at best improvements to the performance of the abstract idea" (Office Action at page 8) without performing the required two-step analysis under MPEP § 2106.04(d)(1). Specifically, the Office does not evaluate whether the Specification provides sufficient details for one of ordinary skill in the art to recognize a technological improvement (step one), nor does the Office evaluate whether the claims reflect the disclosed improvements (step two). Instead, the Office skips both steps and proceeds directly to a conclusion that the improvements are merely to the "abstract idea." This failure to follow the required analytical procedure established by MPEP § 2106.04(d)(1), as revised by the December 5, 2025 MPEP Memorandum, constitutes procedural error ( page 10/16)”.
Examiner disagrees. Applicant’s arguments are similar to the one addressed above under section 2. The Office did not Fail to Analyze the Claims "As a Whole" in Violation of Binding Precedent. Accordingly, the claim rejection of claims 1-20 rejection under 35 USC § 101 is maintained.
5. the Office Has Already Determined that the claims are allowable over the prior art
Applicant argues that “ This acknowledgment that the claimed combination is novel and non-obvious is relevant to the eligibility analysis because it indicates the claims recite a technically meaningful combination that goes beyond conventional content delivery and user tracking technology. The Office’s analysis recognizes that the specific technical architecture claimed here, including the dynamically updated covisitation graph, the probabilistic modeling, and the flag control mechanism, does not exist in the prior art (page 12 /16)”.
Examiner asserts that the rejection of claims under 35 USC 101 is separate and distinct from rejections for anticipation and obviousness. Rejecting the claims under 35 U.S.C. § 102 and/or 35 U.S.C. § 103 has no bearing or consequence on the materiality of a rejection under 35 U.S.C. § 101.
As noted in the prior office action, the additional claim features do not amount to significantly more under the framework. The claim does not qualify under the other non-limiting non-exclusive examples. in order to overcome a 35 USC 101 rejection, the technical solution to a technical problem must be rooted in the "additional elements". Additional elements are defined as those elements outside the identified abstract idea itself. As thus, the only additional elements in the claim that would be capable of overcoming the 101 are a general-purpose computer with generic computer components upon which an abstract idea is merely being applied. As such, an purported improvement in what the applicant calls a technical field is an improvement in ineligible subject matter. In order for an improvement to a technology or technological filed to overcome a 35 USC 101 rejection, the purported improvement must be rooted in the "additional elements" which in this case they are not. The claimed additional elements are merely a general purpose computer upon which an abstract idea is merely being applied which is insufficient to transform an abstract idea into a practical application under Step 2a, Prong 2. As such Applicant's claimed solution is NOT technological and does not addresses a technological problem. Hence, Examiner maintains that the claims do not define substantially more than the abstract idea. Therefore, the claim rejection of claims 1-20 under USC § 101 is maintained.
Claim Rejections - 35 USC § 101
35 U.S.C. § 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-20 are directed to a system and a method which would be classified under one of the listed statutory classifications (i.e., 2019 Revised Patent Subject Matter Eligibility Guidance (hereinafter “PEG”) “PEG” Step 1=Yes). However, claims 1-20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more. The claim(s) recite(s) the following abstract idea:
maintaining a covisitation graph, the covisitation graph indicating a plurality of related websites, the covisitation graph further comprising probability values related to the probability that future visitors to a first website of the plurality of related websites will visit one or more of the other websites of the plurality of related websites;
wherein the probability values are derived at least in part based on a probabilistic algorithm and historical user behavior;
computing, using the covisitation graph and a statistical algorithm, an expected number of impressions seen, within a first predetermined period of time, on one or more of the other websites indicated on the covisitation graph;
identifying a frequency cap, wherein the frequency cap defines a limit of impressions of an item of directed content to be shown to a current visitor within a second predetermined period of time ;
computing, based on the expected number of impressions and the probability values of related websites and the frequency cap, a delivery rate for impressions of the directed content for the current visitor of the first website; and
delivering controlling delivery of impressions of the directed content based on the delivery rate ”.
The limitations as detailed above, as drafted, falls within the “Certain Method of Organizing Human Activity” grouping of abstract ideas namely commercial or legal interactions because they recite advertising, marketing and sales activities or behaviors. Accordingly, the claim recites an abstract idea (i.e. “PEG” Revised Step 2A Prong One=Yes).
This judicial exception is not integrated into a practical application because the claim only recites the additional elements of a computer with one or more hardware processors coupled to a non-transitory memory and configured to execute software instructions such as co-visitation graph and probabilistic model ( A device, comprising: a processing system including a processor; and a memory that stores executable instructions (e.g. a general purpose computer with generic computer components) and a database to perform the claimed functions amounts to no more than mere instructions to apply the exception using one or more general-purpose computers and one or more generic computer component.
The following limitations, if removed from the abstract idea and considered additional elements, merely perform generic computer function of processing, storing, communicating (e.g., transmitting and receiving), and displaying data and, as such, are insignificant extra-solution activities (see MPEP 2016.05(d)(II) and MPEP 2106.05(g)):
delivering controlling delivery of impressions of the directed content based on the delivery rate (claim 1) (transmitting data);
receiving, from an owner of a directed content, data defining a frequency cap (claim 11) (receiving data);
receiving, by a processing system including a processor, information defining a frequency cap for a directed content to be shown to visitors of an online directed content system, wherein identities of the visitors are unknown to the processing system (claim 17) (receiving data);
More The additional technical elements above are recited at a high-level of generality (i.e., as a generic processor and generic computer components performing a generic computers function of processing, communicating and displaying) such that it amounts to no more than mere instructions to apply the exception using one or more general-purpose computers and generic computer components. The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the additional technical elements above do not integrate the abstract idea/judicial exception into a practical application because it does not impose any meaningful limits on practicing the abstract idea. More specifically, the additional elements fail to include (1) improvements to the functioning of a computer or to any other technology or technical field (see MPEP 2106.05(a)), (2) applying or using a judicial exception to effect a particular treatment or prophylaxis for a disease or medical condition (see Vanda memo), (3) applying the judicial exception with, or by use of, a particular machine (see MPEP 2106.05(b)), (4) effecting a transformation or reduction of a particular article to a different state or thing (see MPEP 2106.05(c)), or (5) applying or using the judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment, such that the claim as a whole is more than a drafting effort designed to monopolize the exception (see MPEP 2106.05(e) and Vanda memo).
Rather, the limitations merely add the words “apply it” (or an equivalent) with the judicial exception, or mere instructions to implement an abstract idea on one or more computers, or merely uses computers as a tool to perform an abstract idea (see MPEP 2106.05(f)), or generally link the use of the judicial exception to a particular technological environment or field of use (see MPEP 2106.05(h)). Thus, the claim is “directed to” an abstract idea (i.e. “PEG” Revised Step 2A Prong Two=Yes). When considering Step 2B of the Alice/Mayo test, the claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the claims do not amount to significantly more than the abstract idea.
Specifically, as discussed above with respect to integration of the abstract idea into a practical application, the additional elements of using a A device, comprising: a processing system including a processor; and a memory that stores executable instructions (e.g. a general purpose computer with generic computer component), to perform the claimed functions amounts to no more than mere instructions to apply the exception using one or more general-purpose computers and one or more generic computer component.
“Generic computer implementation” is insufficient to transform a patent-ineligible abstract idea into a patent-eligible invention (See Affinity Labs, _F.3d_, 120 U.S.P.Q.2d 1201 (Fed. Cir. 2016), citing Alice, 134 S. Ct. at 2352, 2357) and more generally, “simply appending conventional steps specified at a high level of generality” to an abstract idea does not make that idea patentable (See Affinity Labs, _F.3d_, 120 U.S.P.Q.2d 1201 (Fed. Cir. 2016), citing Mayo, 132 S. Ct. at 1300). Moreover, “the use of generic computer elements like a microprocessor or user interface do not alone transform an otherwise abstract idea into patent-eligible subject matter (See FairWarning, 120 U.S.P.Q.2d. 1293, citing DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1256 (Fed. Cir. 2014)). As such, the additional elements of the claim do not add a meaningful limitation to the abstract idea because they would be generic computer functions in any computer implementation. Thus, taken alone, the additional elements do not amount to significantly more than the above-identified judicial exception (the abstract idea). Looking at the limitations as an ordered combination adds nothing that is not already present when looking at the elements taken individually. There is no indication that the combination of elements improves the functioning of the computer or improves any other technology. Their collective functions merely provide generic computer implementation.
The Examiner notes simply implementing an abstract concept on one or more computers, without meaningful limitations to that concept, does not transform a patent-ineligible claim into a patent-eligible one (See Accenture, 728 F.3d 1336, 108 U.S.P.Q.2d 1173 (Fed. Cir. 2013), citing Bancorp, 687 F.3d at 1280), limiting the application of an abstract idea to one field of use does not necessarily guard against preempting all uses of the abstract idea (See Accenture, 728 F.3d 1336, 108 U.S.P.Q.2d 1173 (Fed. Cir. 2013), citing Bilski, 130 S. Ct. at 3231), and further the prohibition against patenting an abstract principle “cannot be circumvented by attempting to limit the use of the [principle] to a particular technological environment” (See Accenture, 728 F.3d 1336, 108 U.S.P.Q.2d 1173 (Fed. Cir. 2013), citing Flook, 437 U.S. at 584), and finally merely limiting the field of use of the abstract idea to a particular existing technological environment does not render the claims any less abstract (See Affinity Labs, _F.3d_, 120 U.S.P.Q.2d 1201 (Fed. Cir. 2016), citing Alice, 134 S. Ct. at 2358; Mayo, 132 S. Ct. at 1294; Bilski v. Kappos, 561 U.S. 593, 612 (2010); Content Extraction & Transmission LLC v. Wells Fargo Bank, Nat’l Ass’n, 776 F.3d 1343, 1348 (Fed. Cir. 2014); buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355 (Fed. Cir. 2014).
Applicant herein only requires one or more general-purpose computer and generic computer components (as evidenced from paragraph 101 of the applicant’s specification) and the affinity v Direct TV decision which states that a database is a generic computer component); therefore, there does not appear to be any alteration or modification to the generic activities indicated, and they are also therefore recognized as insignificant activity with respect to eligibility.
Finally, the following limitations, if removed from the abstract idea and considered additional elements, would be considered insignificant extra solution activity as they are directed to merely receiving, displaying, storing, and/or transmitting data (see MPEP 2016.05(d)(II) and MPEP 2106.05(g)):
delivering controlling delivery of impressions of the directed content based on the delivery rate (claim 1) (transmitting data);
receiving, from an owner of a directed content, data defining a frequency cap (claim 11) (receiving data);
receiving, by a processing system including a processor, information defining a frequency cap for a directed content to be shown to visitors of an online directed content system, wherein identities of the visitors are unknown to the processing system (claim 17) (receiving data);
Thus, taken individually and in combination, the additional elements do not amount to significantly more than the above-identified judicial exception (the abstract idea) (i.e., “PEG” Step 2B=No). For the same reason these elements are not sufficient to provide an inventive concept. For these reasons, there is no inventive concept in the claim, and thus the claim is not patent eligible. Same Judicial analysis is applied here to independent claims 11 and 17.
The dependent claims 2-10,12-16 and 18-20 appear to merely further limit the abstract idea by limit the abstract idea of Certain methods of organizing Human Activity” as it relates to commercial interactions of advertising, marketing, or sales activities or behaviors and therefore only further limit the abstract idea (i.e. “PEG” Revised Step 2A Prong One=Yes), does/do not include any new additional elements that are sufficient to amount to significantly more than the judicial exception, and as such are “directed to” said abstract idea (i.e. “PEG” Step 2A Prong Two=Yes); and do not add significantly more than the idea (i.e. “PEG” Step 2B=No). Thus, based on the detailed analysis above, claims 1-20 are not patent eligible.
Possible Allowable Subject Matter
Claims 1-20 recite subject matter that would be allowable over the prior art if the Applicant were to be able to overcome the claim rejection under 35 USC § 101 rejection above.
The following is a statement of reasons for the indication of allowable subject matter: The most relevant prior the examiner has found is:
Thoman et al, US Pub No: 2021/0049648 A1 teaches Systems, methods and articles for automating and optimizing the buying and selling of content, such as advertising inventory units. The systems disclosed herein provide an automated double-blind auction-based marketplace that provides price protection for buyers, provides advanced insight to buyers regarding future campaign performance, and creates balanced sell side competition. This is achieved by an automated auction engine that, among other things, automatically determines the winning buyers and sellers and automatically determines the prices that winning buyers will pay. The system may automatically generate orders from the winning bids, and the orders may be sent to a traffic system for publishing.
Savir et al, US Pub No: 2021/0356795 A1 teaches Artificial intelligence (AI)-based techniques are provided that predict a quality score for a product-related data structure associated with one or more products. One method comprises obtaining data for a given product-related data structure; evaluating a plurality of first features related to a customer account associated with the given product-related data structure using the obtained data; evaluating a plurality of second features related to the given product-related data structure using the obtained data; processing at least some of the first features and the second features using at least one model that provides a predicted quality score for the given product-related data structure; and applying one or more thresholds to the predicted quality score to determine an acceptance status related to the given product-related data structure. A weighting of the first features and the second features can be learned during a training phase.
Burkard et al, US Pub No: 2013/0073509 A1, teaches A method and system for predicting a next navigation event are described. Aspects of the disclosure minimize the delay between a navigation event and a network response by predicting the next navigation event. The system and method may then prerender content associated with the next navigation event. For example, the method and system may predict a likely next uniform resource locator during web browsing to preemptively request content from the network before the user selects the corresponding link on a web page. The methods describe a variety of manners of predicting the next navigation event, including examining individual and aggregate historical data, text entry prediction, and cursor input monitoring.
Thoman et al, US Pub No: 2021/0049648 A1, teaches Systems, methods and articles for automating and optimizing the buying and selling of content, such as advertising inventory units. The systems disclosed herein provide an automated double-blind auction-based marketplace that provides price protection for buyers, provides advanced insight to buyers regarding future campaign performance, and creates balanced sell side competition. This is achieved by an automated auction engine that, among other things, automatically determines the winning buyers and sellers and automatically determines the prices that winning buyers will pay. The system may automatically generate orders from the winning bids, and the orders may be sent to a traffic system for publishing.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant' s disclosure.
Chalasani et al , US Pub No: 2022/0084075 A1, teaches A digital ad-buying platform uses counterfactual-based incrementality measurement by implementing randomization and/or a correction for auction win bias to avoid the need to identify counterfactual winner types in the control group. This approach can estimate impact at the individual consumer level. Confidence levels can be determined using Gibbs sampling in the context of causal analysis in the presence of non-compliance.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. THIS ACTION IS MADE FINAL. 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 files within TWO MONTHS from 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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Affaf Ahmed whose telephone number is 571-270-1835. The examiner can normally be reached on [ Mon-Thursday 8-6 pm ].
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/AFAF OSMAN BILAL AHMED/Primary Examiner, Art Unit 3622
