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
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17 (e), was filed in this application after final rejection. since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17 (e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant’s submission filed on 11/21/2025 has been entered.
Claims 1,7, 11, 17 have been amended.
Claims 1-20 are currently pending and have been examined.
Response to Applicant’s Arguments
Applicant’s amendments and arguments filed on 01/08/2025 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:
Step 2A, Prong One: Claim as a Whole-Not Directed to an Abstract Idea
Applicant argues that “ When considered as a whole, the amended claims recite a specific technical solution implemented by a computing system that: 1. Dynamically updates a covisitation graph based on server log data: 2. Uses probabilistic modeling for computer-performed decision making: 3. Implements automated bid suppression via no-bid flag mechanism: No bid: These operations are inherently computer-based and cannot practically be performed by human mental processes. The system automatically sets technical control flags in bid responses based on probabilistic calculations, not human business decisions (page 7/12)”.
Examiner disagrees. The applicant's argument that the claims overcome the 35 USC 101 rejection under Step 2a, Prong 1 because the steps of : 1. Dynamically updates a covisitation graph based on server log data: 2. Uses probabilistic modeling for computer-performed decision making: 3. Implements automated bid suppression via no-bid flag mechanism) and (The system automatically sets technical control flags in bid responses based on probabilistic calculations ) cannot be performed by a human being is not convincing. The only abstract idea bucket in which performance by a human is required is the "Mental Process" bucket which requires that the steps be capable of being performed in the human mind. The claims of the instant invention have not been identified as a "Mental Process". Instead the claims of the instant invention have been identified as "Certain Methods of Organizing Human Activities". The Subject Matter Eligibility Guidelines indicate that "advertising, marketing or sales related activities" is a subcategory of "Certain Methods of Organizing Human Activities". There is no requirement that these "advertising, marketing, or sales related activities" be performed by a human being. Therefore, all steps involved in the performance of advertising, marketing or sales related activities are part of the abstract idea itself irrespective of whether they are performed by a computer or performed by a human being. Thus, the applicant's arguments are moot. Therefore, the claim rejection of claims 1-20 rejection under 35 USC § 101 is maintained.
Analogous to Diamond v. Diehr:
Applicant argues that “Similarly, the amended claims apply probabilistic and statistical models to automatically control a technical process (controlling delivery of impressions of directed content, as well as bid submission and suppression), solving the technical problem of implementing frequency capping where traditional user tracking mechanisms are unavailable. As explained in the specification, the prior technical architecture relied on accessing a current "ad count" for each specific user using third-party cookie technology and comparing the ad count to the frequency cap to determine whether to suppress the ad (Specification at paragraph [0022]). The amended claims achieve frequency capping without accessing an ad count or user-identifiable information by applying probabilistic and statistical mechanisms to transform bid opportunities into controlled delivery decisions through automated flag-setting mechanisms (Specification at paragraph [0042].) (page 7/12)”.
Examiner disagrees. apply probabilistic and statistical models to automatically control a process (controlling delivery of impressions of directed content, as well as bid submission and suppression), by implementing frequency capping where traditional user tracking mechanisms are unavailable and / or achieve frequency capping without accessing an ad count or user-identifiable information by applying probabilistic and statistical mechanisms to transform bid opportunities into controlled delivery decisions through automated flag-setting mechanisms is unlike Diamond v. Diehr, patent eligibility which dealt with a physical Transformation of liquid rubber into a tire through a curing process.
"There are two cases that deal with Transformation, Diehr and Abele. The Diehr case dealt with a physical Transformation of liquid rubber into a tire through a curing process. Abele dealt with data Transformation of a human body to CAT scan data representing muscles, bones, tissues, organs, etc. In the case of the instant application, obtaining a measurement of a physical characteristic of the object from a sensor coupled with the object does not perform any Transformation into a different state or thing.
"Transformation" of an article means that the "article" has changed to a different state or thing. Changing to a different state or thing usually means more than simply using an article or changing the location of an article. A new or different function or use can be evidence that an article has been transformed. Manufactures and compositions of matter are the result of transforming raw materials into something new with a different function or use. Purely mental processes in which thoughts or human based actions are "changed" are not considered an eligible Transformation. For data, mathematical manipulation per se has not been deemed a Transformation; but, Transformation of electronic data has been found when the nature of the data has been changed such that it has a different function or is suitable for a different use. As such there is no transformation performed in the instance claimed limitation. Clearly, the instant claims do not involve any transformation of an article that has changed to a different state or thing.
As thus apply probabilistic and statistical models to automatically control a technical process (controlling delivery of impressions of directed content, as well as bid submission and suppression), to solve a problem of implementing frequency capping where traditional user tracking mechanisms are unavailable is not a transformation of an article that has changed to a different state or a thing. As thus, the amended claims are not analogous to Diamond v. Diehr.
Accordingly, the Office Action has provided clear explanation of what is considered transformation and the current claims do not include any transformation. Therefore, the claim rejection of claims 1-20 rejection under 35 USC § 101 is maintained.
Examiner notes : it has been held that Although claims are interpreted in light of the specification, limitations from the specification are not read into the claims
Analogous to DDR Holdings:
Applicant argues that “Similarly, the amended claims solve a technical problem in computer networking environments by changing how frequency capping operations normally function (controlling delivery of impressions of directed content). Instead of relying on traditional user tracking mechanisms like cookies to maintain individual user ad counts (the normal frequency capping behavior), the amended claims achieve frequency capping without accessing an ad count or user-identifiable information (Specification at paragraph [0022]). The system uses automated probabilistic calculations and dynamic graph updating (Specification at paragraphs [0026] and [0028]) combined with automated bid suppression mechanisms to achieve frequency control, thereby solving the technical problem of implementing frequency capping in cookie-less environments. Like DDR Holdings, the amended claims recite specific technical operations that change how a computer system normally functions, and the commercial application domain does not render them abstract ( page 8/12)”.
Examiner disagrees. The instant claims bear no similarity to the DDR Holdings decision, because the instant claim merely implementing frequency capping in cookie-less environments in the manner in which it is received, whereas the claims in DDR Holding describe how the user interface manipulates the data in such a way that rather than directed the user to page requested by the link as would normally occur in a networking environment, the invention changes the normal functioning of such networking environment and instead of sending the claim to a landing page of the link, the invention displays the landing page as part of the currently accessed domain. The instant invention does nothing that could even be remotely similar to the claims of DDR. Thus, the rejection is maintained. As such Applicant's claimed solution is NOT technological and does not addresses a technological problem. Therefore, the claim rejection of claims 1-20 rejection under 35 USC § 101 is maintained.
Examiner notes : it has been held that Although claims are interpreted in light of the specification, limitations from the specification are not read into the claims
Step 2A, Prong Two: Integration into a Practical Application
Applicant argues that “Even assuming, arguendo, that amended claim 1 recites a judicial exception, it is integrated into a practical application. " Solves a Specific Technical Problem: The claimed invention addresses the technical challenge of implementing frequency capping in computer networking environments where traditional user tracking mechanisms (cookies) are unavailable. This is not a business optimization but a technical systems problem. 2)" Improves Computer System Functionality: Computational Efficiency: Given that the delivery rate has been calculated, the backend processing can be simplified in that information on each specific user need not be tracked (Specification at paragraph [0067].) 3) Real-time Processing Architecture: The capping decision is based on a single bid request, which is the only piece of information about the user available at the time the bid request is received. The systems and methods described herein do not require user-identifying information in determining whether to submit or suppress the bid. (Specification at paragraph [0097].) 4) Memory and Storage Optimization: By eliminating the need for individual user tracking databases, the system reduces memory requirements and storage overhead compared to conventional cookie-based systems. 5)" Specific Technical Operations: The claims recite specific technical operations that distinguish them from human activity: - Dynamic graph updating based on server log data - Automated probabilistic calculations for impression estimation - Real-time algorithmic bid suppression via technical flag mechanisms - Automated throttling of bid frequency through computer-controlled processes (page 8-9/12)”.
Examiner disagrees. Claim 1 for instance recites the limitation of : a device comprising a processing system including a processor and a memory that stores executable instructions that, when executed by the processing system, facilitate performance of operations, the operations comprising: “ maintaining, in the memory, a covisitation graph, the covisitation graph representing a plurality of related websites and dynamically updated based on server log data, 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 other websites of the plurality of related websites,wherein the probability values are derived at least in part based on a probabilistic model 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 controlling delivery of impressions of the directed content based on the delivery rate by setting a no-bid flag to selectively suppress a bid submission thereby throttling bid frequency to control impression delivery “.
The recitation of “a device comprising a processing system including a processor and a memory that stores executable instructions that, when executed by the processing system, server and model “ fails to (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.
Indeed, the identified improvements recited by Applicant are really, at best improvements to the performance of the abstract idea (e.g., improvements made in the underlying business method (controlling delivery of impressions of the directed content based on the delivery rate by setting a no-bid flag to selectively suppress a bid submission thereby throttling bid frequency to control impression delivery) and not in the operations of any additional elements or technology.
As such, the examiner finds that any improvement obtained by practicing the claimed invention is an improvement to a business process.
Second, under Step 2a, Prong 2, the improvement to a technology or technological field must be rooted in the additional element. Additional elements are those elements outside of the identified abstract idea itself. In the instant case the only additional elements are “ a device comprising a processing system including a processor and a memory that stores executable instructions that, when executed by the processing system, server and model, which are just general-purpose computers with generic computing components, upon which the abstract idea is applied which is insufficient to transform an abstract idea into a practical application under Step 2a, Prong 2 or be considered significantly more under Step 2b.
Thus, any improvement obtained by practicing the abstract idea, is an improvement obtained by practicing the abstract idea and not rooting in the additional elements upon which the abstract idea is applied. Improvements of this nature are not patent eligible (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 there 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.). Thus, the rejection has been maintained. Therefore, the claim rejection of claims 1-20 rejection under 35 USC § 101 is maintained.
Examiner notes it has been held that “ Although claims are interpreted in light of the specification, limitations from the specification are not read into the claims (In re Van Geuns, 26 USPQ2d 1057 (CA FC 1993)”
Step 2B: Inventive Concept
Applicant argues that “Even if the claims were found to be directed to a judicial exception and not integrated into a practical application, they recite significantly more than the exception.
The amended claims include several additional elements that are not well-understood, routine, or conventional: " Novel Data Structure: "The server log data 128 is used by covisitation graph module 130 to create one or more covisitation graphs. A covisitation graph corresponds to a graph of sites, such as website 106 as well as other websites (not shown) indicating the probabilities that visitors to one site will visit other, related websites. In embodiments for instance, the server log data 128 may indicate a user having a particular IP address visited different websites in succession, and therefore the covisitation graph module, using such information, can effectively associate the different websites and the probability of visitors to one site will visit the other one or more related websites." (Paragraph [0026] of the Specification.) " Unconventional Computer Operation: The automated bid suppression using probabilistic calculations without user tracking represents an unconventional approach that differs from traditional cookie-based systems. " Technical Integration: Using the random number generated from operation 620, flow 600 determines whether to bid on the ad request or to suppress the bid. In one embodiment, a random number can be generated (at operation 620) between 1 and 100 and if the random number is above the frequency rate value then the bid is suppressed and if the random number is below the frequency rate value then the bid is submitted. For example, if the determined, frequency capped delivery rate is 30%, then the bid will be submitted if the random number is 30 or less. Alternatively, the bid will be suppressed or rejected if the random number is 31 or higher. (Paragraph [0088] of the Specification.) This ordered combination of technical operations-maintaining dynamic covisitation graphs, computing probabilistic delivery rates, and implementing automated bid suppression-reflects a structured, technical process that enables the system to achieve frequency capping without user tracking (page 9/12)”.
Examiner disagrees. Claim 1 for instance recites the limitation of : a device comprising a processing system including a processor and a memory that stores executable instructions that, when executed by the processing system, facilitate performance of operations, the operations comprising: “ maintaining, in the memory, a covisitation graph, the covisitation graph representing a plurality of related websites and dynamically updated based on server log data, 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 other websites of the plurality of related websites,wherein the probability values are derived at least in part based on a probabilistic model 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 controlling delivery of impressions of the directed content based on the delivery rate by setting a no-bid flag to selectively suppress a bid submission thereby throttling bid frequency to control impression delivery “.
The recitation of “a device comprising a processing system including a processor and a memory that stores executable instructions that, when executed by the processing system, server and model “ fails to (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.
Indeed, the identified improvements recited by Applicant are really, at best improvements to the performance of the abstract idea (e.g., improvements made in the underlying business method (maintaining dynamic covisitation graphs, computing probabilistic delivery rates, and implementing automated bid suppression-reflects a structured, that enables to achieve frequency capping without user tracking) and not in the operations of any additional elements or technology.
As such, the examiner finds that any improvement obtained by practicing the claimed invention is an improvement to a business process.
Second, under Step 2a, Prong 2, the improvement to a technology or technological field must be rooted in the additional element. Additional elements are those elements outside of the identified abstract idea itself. In the instant case the only additional elements are “ a device comprising a processing system including a processor and a memory that stores executable instructions that, when executed by the processing system, server and model, which are just general-purpose computers with generic computing components, upon which the abstract idea is applied which is insufficient to transform an abstract idea into a practical application under Step 2a, Prong 2 or be considered significantly more under Step 2b.
Thus, any improvement obtained by practicing the abstract idea, is an improvement obtained by practicing the abstract idea and not rooting in the additional elements upon which the abstract idea is applied. Improvements of this nature are not patent eligible (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 there 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.). Therefore, the claim rejection of claims 1-20 rejection under 35 USC § 101 is maintained.
Examiner notes it has been held that “ Although claims are interpreted in light of the specification, limitations from the specification are not read into the claims (In re Van Geuns, 26 USPQ2d 1057 (CA FC 1993)”
MPEP Q 2106.05 Eligibility Considerations :
Applicant argues that “The amended claim also satisfies several of the eligibility considerations outlined in MPEP §2106.05: §2106.05(a): Improvements to the Functioning of a Computer or Other Technology; The claims improve the functioning of computing systems by enabling frequency capping without traditional user tracking mechanisms, thereby improving computational efficiency and reducing memory requirements. .§2106.05(d): Improvement to a Technological Process The claims improve a technological process-specifically, content delivery control in computer networking environments-by implementing a novel technical solution to replace eliminated cookie-based tracking. .§2106.05(e): Other Meaningful Limitations The claims recite a specific sequence of technical operations including dynamic graph updating, probabilistic modeling, delivery rate computation, and automated bid suppression that go beyond merely stating an abstract idea. For at least the reasons above, amended claim 1 is not directed to a judicial exception, is integrated into a practical application, and recites significantly more than any alleged abstract idea. Amended claims 11 and 17 recite similar features discussed above and are therefore eligible for at least the same reasons (page 10/12)”.
Examiner disagrees. Claim 1 for instance recites the limitation of : a device comprising a processing system including a processor and a memory that stores executable instructions that, when executed by the processing system, facilitate performance of operations, the operations comprising: “ maintaining, , a covisitation graph, the covisitation graph representing a plurality of related websites and dynamically updated based on log data, 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 other websites of the plurality of related websites,wherein the probability values are derived at least in part based on a probabilistic model 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 controlling delivery of impressions of the directed content based on the delivery rate by setting a no-bid flag to selectively suppress a bid submission thereby throttling bid frequency to control impression delivery “.
The limitations as detailed above, as drafted, falls within the “Certain Method of Organizing Human Activity” grouping of abstract ideas as it relates to commercial interactions of advertising, marketing, or sales activities or behaviors; business relations, because the merely gather data, analyze the data, determine results based upon the analysis, generate tailored content based on the results, and transmit the tailored content. Accordingly, the claim recites an abstract idea (i.e. MPEP 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 device comprising a processing system including a processor and a memory that stores executable instructions that, when executed by the processing system”. The additional technical elements above are recited at a high-level of generality (i.e. as a generic processor performing a generic computer function of processing, communicating and displaying) such that it amounts to no more than mere instructions to apply the exception using a generic computer component. 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 a computer, or merely uses a computer 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. MPEP Step 2A Prong Two=Yes). Therefore, the claim rejection of claims 1-20 rejection under 35 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 rejected under 35 U.S.C.101 because the claimed invention is directed to a judicial exception subject matter, specifically an abstract idea. The analysis for this determination is explained below:
Step 1, determine whether the claim is directed to one of the four statutory categories of invention, i.e., process, machine, manufacture, or composition of matter.
In this case, claim(s) 1-10 are directed to a machine (i.e. a system); claim (s) 11-16 are directed to a manufacture (i.e. a non transitory computer medium); 17-20 are directed to a process (i.e. a method).
The claimed invention is directed to at least one judicial exception (i.e. a law of nature, a natural phenomenon, or an abstract idea) without significantly more. Claim 1 for instance recite(s) the following abstract idea of: apply statistical models to achieve frequency capping without accessing an ad count or user-identifiable information and transform bid opportunities into controlled delivery decisions through automated flag-setting mechanisms.
Claim 1 for instance recites the abstract idea of: maintaining dynamic covisitation graphs, computing probabilistic delivery rates, and implementing automated bid suppression- to achieve frequency capping without user tracking.
Claim 1, as exemplary, recites the following abstract idea limitation (s) of: “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 model and historical user behavior; computing, using the covisitation graph and a statistical model, 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 as it relates to commercial interactions of advertising, marketing, or sales activities or behaviors; business relations, because the merely gather data, analyze the data, determine results based upon the analysis, generate tailored content based on the results, and transmit the tailored content. Accordingly, the claim recites an abstract idea (i.e. MPEP 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: “system, server, processor, memory and model”. The additional technical elements above are recited at a high-level of generality (i.e. as a generic processor performing a generic computer function of processing, communicating and displaying) such that it amounts to no more than mere instructions to apply the exception using a generic computer component. 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 a computer, or merely uses a computer 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. MPEP 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.
More specifically, as discussed above with respect to integration of the abstract idea into a practical application, the additional elements of using the additional elements of :“system, server, processor; memory and a model”, to perform the claimed functions amounts to no more than mere instructions to apply the exception using a 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 a computer, 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 a general purpose computers communicating over a general purpose network (as evidenced from paragraph 101); 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 are considered insignificant extra solution activity as they are directed to merely receiving, storing and/or transmitting data:
receiving, from an owner of a directed content, data defining a frequency cap (claim 11);
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);
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.MPEP 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 appears to merely further 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; business relations), by adding the additional steps of : determining a ratio of a total number of impressions seen on the first website to a number of distinct user identifiers seen on the first website (claim 2); identifying past visitors visiting the first website, wherein the identifying is based on information about the past visitors other than browser cookies; and determining the number of distinct user identifiers based on identified visitors visiting the first website (claims 3 and 12); determining, from data of the covisitation graph, an expected number of impressions seen on a first website for visitors of the first website; identifying, from data of the covisitation graph, one or more related websites having a relation to the first website; identifying the users visiting the first website based on a respective internet protocol address associated with a respective visitor visiting the first website; and identifying the visitors visiting the first website based on other identifying information associated with the respective visitor visiting the first website (claims 4 and 13); wherein the determining a probability for a visitor of the first website to be a visitor of each respective related website of the one or more related websites comprises: determining a ratio of a number of distinct user identifiers seen on the one or more related websites to a number of distinct user identifiers seen on the first website (claims 5 and 14); wherein the estimating an expected total number of impressions seen on the first website and the one or more related websites comprises: multiplying an average number of impressions on each related website of the one or more related website by the probability the current visitor of the first website will visit each respective related website of the one or more related websites (claims 6 and 15); generating a random number; comparing the random number to the delivery rate; and setting the no-bid flag in bid responses when the random number exceeds the delivery rate (claim 7); receiving a bid request, the bid request identifying a website and opportunity to show a directed content to the current visitor to the website; and submitting a bid to an auction to determine the directed content to be shown to the current visitor to the web site according to the delivery rate and estimating a win rate of previous auctions to determine directed contents to be shown; and adjusting the delivery rate according to the win rate (claims 8-9 and 16); receiving the request data in the online directed content delivery platform, the request data including data from visitors with known identification information and data from unidentified visitors; anonymizing the request data, forming anonymous request data; and storing the anonymous request data in a database (claim 10); selecting, by the processing system, the sample of past users based on selecting users for whom identification information is available (claim 18); determining, by the processing system, an expected number of impressions seen on a first website for visitors of the first website; identifying, by the processing system, one or more related websites having a relation to the first website; determining, by the processing system, a probability for a current visitor of the first website to visit each respective related website of the one or more related websites; determining an expected number of impressions seen on each respective related website for the current visitor behind a bid request received on the first website; estimating, by the processing system, an expected total number of impressions seen on the first website and the one or more related websites for the current visitor behind the bid request received on the first website based on the expected number of impressions seen on each respective related website for the current visitor behind the bid request received on the first website; and estimating, by the processing system, a delivery rate for impressions based on the expected total number of impressions (claim 19); determining, a random number; comparing, by the processing system, the random number with the delivery rate; and delivering, by the processing system, directed contents when the random number is less than or equal to the delivery rate (claim 20); which is considered part of the abstract idea and therefore only further limit the abstract idea (i.e. MPEP 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. MPEP Step 2A Prong Two=Yes); and do not add significantly more than the idea (i.e. MPEP Step 2B=No). Thus, the dependent claims further narrows the abstract idea and/or recite additional elements previously rejected in the independent 1,11,17.
Accordingly, the claim fails to recite any improvements to another technology or technical field, improvements to the functioning of the computer itself, use of a particular machine, effecting a transformation or reduction of a particular article to a different state or thing, adding unconventional steps that confine the claim to a particular useful application, and/or meaningful limitations beyond generally linking the use of an abstract idea to a particular environment. See 84 Fed. Reg. 55. Viewed individually or as a whole, these additional claim element(s) do not provide meaningful limitation(s) to transform the abstract idea into a patent eligible application of the abstract idea such that the claim(s) amounts to significantly more than the abstract idea itself.
Claim Rejections - 35 USC § 102 /103
The Examiner is unable to find a prior art that teaches the limitations of : maintaining, in the memory, a covisitation graph, the covisitation graph representing a plurality of related websites and dynamically updated based on server log data,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 other websites of the plurality of related websites wherein the probability values are derived at least in part based on a probabilistic model and historical user behavior; computing, using the covisitation graph and a statistical model, 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 controlling delivery of impressions of the directed content based on the delivery rate by setting a no-bid flag to selectively suppress a bid submission thereby throttling bid frequency to control impression delivery.
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.
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 system for counterfactual -based measurement in digital ad bidding platform.
Bukard et al, US Pub No: 2013/0073509 A1, teaches Predicting user navigation events.
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 [M- R 8-6 pm ].
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Ilana Spar can be reached at 571-270-7537. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/AFAF OSMAN BILAL AHMED/Primary Examiner, Art Unit 3622