DETAILED ACTION
This communication is a Non-Final Rejection Office Action in response to the 7/28/2026 submission filed in Application 18/113,902. Claims 1, 4, 9, 12, 18 have been amended. Claims 2-3, 10-11, 17 have been cancelled. Claim 18 has been added. Claims 1, 4-9, 12-16, 18 are now presented.
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Continued Examination Under 37 CFR 1.114
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 7/28/2026 has been entered.
Response to Arguments
Applicant’s arguments filed 7/28/2026, with respect to double patenting rejection have been considered and are persuasive. The double patenting rejections have been withdrawn.
Applicant's remaining arguments have been fully considered but they are not persuasive.
Regarding the rejection under 101, the Applicant argues “Applicant respectfully submits that this method claims fully satisfies the requirements of 35 U.S.C. § 101 in that the claims are not directed to non-statutory subject matter by virtue of being directed to a judicial exception. The Applicant notes that each of the independent claims positively recites a number of physical elements such as cloud server, wireless access point and an Internet- connected media display device wherein data relating to wireless signals received by the wireless access point is processed upon the cloud server and results in a content file being rendered upon the Internet-connected media display device (i.e. a physical result)..”
The Examiner is unpersuaded by the Applicants arguments that the claims are not directed to non-statutory subject matter. The cloud server is recited at a high-level of generality such that it amounts no more than mere instructions to apply the exception using a generic computer component. Further, in claim 1, the limitations of providing a wireless access point; providing; providing an Internet-connected media display device and; providing a cloud server which receives frequency response data of wireless signals do not recite any functionality. They merely recite that these elements are provided, but does not positively recite the functions.
Further, the wireless access point associated with a monitored space which includes an Internet-connected media display device; is indicative of generally linking the use of the judicial exception to a particular technological environment. For example, the abstract idea of filtering content based on the set of individual viewing the content is linked to the particular technological environment that includes wireless access points located in a monitored space.
When viewing the generic server in combination with the generally linking the use of the judicial exception to a particular technological environment and the broadly recited data acquiring and storage does not add more than when viewing the elements individually. Accordingly, the additional elements do not integrate the abstract idea into a practical application because they do not impose any meaningful limits on practicing the abstract idea.
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, 4-9, 12-16, 18 are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter.
When considering subject matter eligibility under 35 U.S.C. 101, in step 1 it must be determined whether the claim is directed to one of the four statutory categories of invention, i.e., process, machine, manufacture, or composition of matter. If the claim does fall within one of the statutory categories, in step 2A prong 1 it must then be determined whether the claim is recite a judicial exception (i.e., law of nature, natural phenomenon, and abstract idea). If the claim recites a judicial exception, under step 2A prong 2 it must additionally be determined whether the recites additional elements that integrate the judicial exception into a practical application. If a claim does not integrate the Abstract idea into a practical application, under step 2B it must then be determined if the claim provides an inventive concept.
In the Instant case Claims 1, 4-8 are directed toward a method for filtering advertisements based on individuals in a monitored space. Claims 9, 12-16, 18 are directed toward systems for filtering advertisements based on individuals in a monitored space. As such, each of the Claims is directed to one of the four statutory categories of invention.
MPEP 2106.04 II. A. explains that in step 2A prong 1 Examiners are to determine whether a claim recites a judicial exception. MPEP 2106.04(a) explains that:
To facilitate examination, the Office has set forth an approach to identifying abstract ideas that distills the relevant case law into enumerated groupings of abstract ideas. The enumerated groupings are firmly rooted in Supreme Court precedent as well as Federal Circuit decisions interpreting that precedent, as is explained in MPEP § 2106.04(a)(2). This approach represents a shift from the former case-comparison approach that required examiners to rely on individual judicial cases when determining whether a claim recites an abstract idea. By grouping the abstract ideas, the examiners’ focus has been shifted from relying on individual cases to generally applying the wide body of case law spanning all technologies and claim types.
The enumerated groupings of abstract ideas are defined as:
1) Mathematical concepts – mathematical relationships, mathematical formulas or equations, mathematical calculations (see MPEP § 2106.04(a)(2), subsection I);
2) Certain methods of organizing human activity – fundamental economic principles or practices (including hedging, insurance, mitigating risk); commercial or legal interactions (including agreements in the form of contracts; legal obligations; advertising, marketing or sales activities or behaviors; business relations); managing personal behavior or relationships or interactions between people (including social activities, teaching, and following rules or instructions) (see MPEP § 2106.04(a)(2), subsection II); and
3) Mental processes – concepts performed in the human mind (including an observation, evaluation, judgment, opinion) (see MPEP § 2106.04(a)(2), subsection III).
The elements of Claim 1 that represent the Abstract idea include:
A method for engagement-based targeting, the method comprising:
processing the acquired frequency response data in conjunction with a radio map to establish that one or more individuals of a set of individuals are present within the monitored space and one or more corresponding locations of the one or more individuals of the set of individuals where the radio map identifies wireless signal strengths associated with different locations within the monitored space; and
establishing a selected content file from a plurality of content files available from a content file database in dependence upon the establishment of the one or more individuals of the set of individuals as present within the monitored space and the one or more corresponding locations of the one or more individuals of the set of individuals; and
provide instructions for delivery of the selected content file to the Internet-connected media display device;
wherein establishing the selected content file further comprises:
determining that two or more content files of the plurality of content files qualify to be the selected content file;
determining a current flag count for each of the two or more content files of the plurality of content files based on a respective engagement level where establishing the two or more content files of the plurality of content files is based upon a flag count of each of the two or more content files of the plurality of content files; and
the selected content file based on a comparison of the flag count of each of the two or more content files of the plurality of content files; and determining the flag count for each of the two or more content files of the plurality of content files comprises:
identifying a change in the engagement level based on a first size of the set of individuals being different than a second size of the set of individuals associated with a prior timestamp; and
adjusting a current flag count of the respective content file in accordance with the identified change in engagement level.
MPEP 2106.04(a)(2) II. states:
The phrase "methods of organizing human activity" is used to describe concepts relating to:
fundamental economic principles or practices (including hedging, insurance, mitigating risk);
commercial or legal interactions (including agreements in the form of contracts, legal obligations, advertising, marketing or sales activities or behaviors, and business relations); and
managing personal behavior or relationships or interactions between people, (including social activities, teaching, and following rules or instructions).
The Supreme Court has identified a number of concepts falling within the "certain methods of organizing human activity" grouping as abstract ideas. In particular, in Alice, the Court concluded that the use of a third party to mediate settlement risk is a ‘‘fundamental economic practice’’ and thus an abstract idea. 573 U.S. at 219–20, 110 USPQ2d at 1982. In addition, the Court in Alice described the concept of risk hedging identified as an abstract idea in Bilski as ‘‘a method of organizing human activity’’. Id. Previously, in Bilski, the Court concluded that hedging is a ‘‘fundamental economic practice’’ and therefore an abstract idea. 561 U.S. at 611–612, 95 USPQ2d at 1010.
The instant claims are directed to marketing or sales activities or behaviors as identifying a set of individual present in a space and determining and presenting content based on the determination is a sales and marketing activity.
MPEP 2106.04(a)(2) states:
The courts consider a mental process (thinking) that "can be performed in the human mind, or by a human using a pen and paper" to be an abstract idea. CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1372, 99 USPQ2d 1690, 1695 (Fed. Cir. 2011). As the Federal Circuit explained, "methods which can be performed mentally, or which are the equivalent of human mental work, are unpatentable abstract ideas the ‘basic tools of scientific and technological work’ that are open to all.’" 654 F.3d at 1371, 99 USPQ2d at 1694 (citing Gottschalk v. Benson, 409 U.S. 63, 175 USPQ 673 (1972)). See also Mayo Collaborative Servs. v. Prometheus Labs. Inc., 566 U.S. 66, 71, 101 USPQ2d 1961, 1965 (2012) ("‘[M]ental processes[] and abstract intellectual concepts are not patentable, as they are the basic tools of scientific and technological work’" (quoting Benson, 409 U.S. at 67, 175 USPQ at 675)); Parker v. Flook, 437 U.S. 584, 589, 198 USPQ 193, 197 (1978) (same).
Accordingly, the "mental processes" abstract idea grouping is defined as concepts performed in the human mind, and examples of mental processes include observations, evaluations, judgments, and opinions
For example, the processing the acquired frequency response data; establishing a selected content file; determining flag counts; identifying change in engagement and adjusting a flag count are drawn to judgment and evaluation. As such, the claim recites at least one abstract idea.
Under step 2A prong 2 the examiner must then determine if the recited abstract idea is integrated into a practical application. MPEP 2106.04 states:
Limitations the courts have found indicative that an additional element (or combination of elements) may have integrated the exception into a practical application include:
• An improvement in the functioning of a computer, or an improvement to other technology or technical field, as discussed in MPEP §§ 2106.04(d)(1) and 2106.05(a);
• Applying or using a judicial exception to effect a particular treatment or prophylaxis for a disease or medical condition, as discussed in MPEP § 2106.04(d)(2);
• Implementing a judicial exception with, or using a judicial exception in conjunction with, a particular machine or manufacture that is integral to the claim, as discussed in MPEP § 2106.05(b);
• Effecting a transformation or reduction of a particular article to a different state or thing, as discussed in MPEP § 2106.05(c); and
• 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, as discussed in MPEP § 2106.05(e)
The courts have also identified limitations that did not integrate a judicial exception into a practical application:
• Merely reciting the words "apply it" (or an equivalent) with the judicial exception, or merely including instructions to implement an abstract idea on a computer, or merely using a computer as a tool to perform an abstract idea, as discussed in MPEP § 2106.05(f);
• Adding insignificant extra-solution activity to the judicial exception, as discussed in MPEP § 2106.05(g); and
• Generally linking the use of a judicial exception to a particular technological environment or field of use, as discussed in MPEP § 2106.05(h).
In the instant case, this judicial exception is not integrated into a practical application. In particular::
Claims 1 recites the additional elements of providing a wireless access point associated with a monitored space;
providing an Internet-connected media display device within the monitored space; and
providing a cloud server which receives frequency response data of wireless signals received by the wireless access point and executes a process upon a processor of the cloud server, the process comprising:
Additionally, Claim 9 recites the additional elements of a wireless access point associated with a monitored space; storing data in a database; and a cloud server that performs the recited abstract idea
Additionally, Claim 18 recites the additional elements of a cloud server that executes a process upon a processor of the cloud server, the process comprising; storing data in a database
However, cloud server is recited at a high-level of generality such that it amounts no more than mere instructions to apply the exception using a generic computer component. Further, in claim 1, the limitations of providing a wireless access point; providing; providing an Internet-connected media display device and; providing a cloud server which receives frequency response data of wireless signals do not recite any functionality. They merely recited that these elements are provided, but does not positively recite the functions.
Further, the wireless access point associated with a monitored space which includes an Internet-connected media display device; is indicative of generally linking the use of the judicial exception to a particular technological environment. For example, the abstract idea of filtering content based on the set of individual viewing the content is linked to the particular technological environment that includes wireless access points located in a monitored space.
Further, MPEP 2105.05(g) explains that data gathering, data output and data storage can be considered pre-solution activity and post-solution activity. See MPEP 2106.05(g) that states:
An example of pre-solution activity is a step of gathering data for use in a claimed process, e.g., a step of obtaining information about credit card transactions, which is recited as part of a claimed process of analyzing and manipulating the gathered information by a series of steps in order to detect whether the transactions were fraudulent. An example of post-solution activity is an element that is not integrated into the claim as a whole, e.g., a printer that is used to output a report of fraudulent transactions, which is recited in a claim to a computer programmed to analyze and manipulate information about credit card transactions in order to detect whether the transactions were fraudulent.
In the instant case, acquiring frequency response data of wireless signals is considered mere data gathering which is incidental to the primary process in a similar way that obtaining information about credit card transactions to be analyzed was incidental to the primary process explained above.
When viewing the generic server in combination with the generally linking the use of the judicial exception to a particular technological environment and the broadly recited data acquiring and storage does not add more than when viewing the elements individually. Accordingly, the additional elements do not integrate the abstract idea into a practical application because they do not impose any meaningful limits on practicing the abstract idea.
In step 2B, the examiner must be determine whether the claim adds a specific limitation other than what is well-understood, routine, conventional activity in the field - see MPEP 2106.05(d). As discussed with respect to Step 2A Prong Two, the additional elements in the claim amount to no more than mere instructions to apply the exception using a generic computer component. The same analysis applies here in 2B, i.e., mere instructions to apply an exception on a generic computer cannot integrate a judicial exception into a practical application at Step 2A or provide an inventive concept in Step 2B.
Similarly, generally linking the use of the judicial exception to a particular technological environment cannot integrate a judicial exception into a practical application at Step 2A or provide an inventive concept in Step 2B.
Further, the acquiring frequency response data of wireless signals is recited broadly in the claims. MPEP 2106.05(d) states receiving or transmitting data over a network, e.g., using the Internet to gather data is conventional when claimed generically (see Symantec, 838 F.3d at 1321, 120 USPQ2d at 1362 (utilizing an intermediary computer to forward information); TLI Communications LLC v. AV Auto. LLC, 823 F.3d 607, 610, 118 USPQ2d 1744, 1745 (Fed. Cir. 2016) (using a telephone for image transmission); OIP Techs., Inc., v. Amazon.com, Inc., 788 F.3d 1359, 1363, 115 USPQ2d 1090, 1093 (Fed. Cir. 2015) (sending messages over a network); buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355, 112 USPQ2d 1093, 1096 (Fed. Cir. 2014) (computer receives and sends information over a network)). As such, the broadly claimed monitoring can be considered the transmittal of data over a network and is considered well-known and conventional as established by the MPEP and relevant case law.
Further, the storing of data in a database is recited broadly. MPEP 2106.05(d) Storing and retrieving information in memory is conventional when claimed generically (see Versata Dev. Group, Inc. v. SAP Am., Inc., 793 F.3d 1306, 1334, 115 USPQ2d 1681, 1701 (Fed. Cir. 2015); OIP Techs., 788 F.3d at 1363, 115 USPQ2d at 1092-93).
When viewing the generic server in combination with the generally linking the use of the judicial exception to a particular technological environment and the broadly recited data acquiring and storage does not add more than when viewing the elements individually. Accordingly, the additional elements do not provide an inventive concept.
Further Claims 4-8 further limit the mental processes and advertising activities recited in the parent claim, but fail to remedy the deficiencies of the parent claim as they do not impose any additional elements that amount to significantly more than the abstract idea itself.
Accordingly, the Examiner concludes that there are no meaningful limitations in claims 1, 4--8 that transform the judicial exception into a patent eligible application such that the claim amounts to significantly more than the judicial exception itself.
The analysis above applies to all statutory categories of invention. The presentment of claim 1 otherwise styled as a computer program product or system, for example, would be subject to the same analysis. As such, claims 9, 12-16 and 18 are also rejected.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DEIRDRE D HATCHER whose telephone number is (571)270-5321. The examiner can normally be reached Monday-Friday 8-4:30.
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/DEIRDRE D HATCHER/Primary Examiner, Art Unit 3625
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