DETAILED ACTION
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 .
Response to Amendment
In light of Applicant's submission filed December 08, 2025, the Examiner has maintained and updated the 35 USC § 101 rejection.
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 21-40 are rejected under 35 U.S.C. 101 because the claimed invention is directed to abstract idea without significantly more. The claim(s) recite(s) the following limitations that are considered to be abstract ideas:
Claims 21, 29, and 36
receiving, a plurality of requests for content:
extracting, from each of the plurality of requests, an occurrence, an address, and a unique identifier;
calculating a probability a common user based on a weighted value of the plurality of requests, based on a weighted value of the plurality of requests, the weighting computed based on a time of day determined for each of the plurality of requests, the time of day based on a timestamp of a request from an IP address
prompting the common user to confirm a characteristic of a prior browsing session based on the calculated probability exceeding a first threshold level and, if the calculated probability exceeds a second threshold, requiring the common user to log-in based on the calculated probability exceeding a second threshold;
receiving, from the common user, confirmation of the characteristic or confirmation of the characteristic and data of a successful user log-in; and
identifying with a common user profile based on the user confirming the characteristic or confirming the characteristic and a successful log-in.
The limitations of independent claim 21, 29, 36, as detailed above, as drafted, falls within the “Mental Processes” - concepts performed in the human mind (including an observation, evaluation, judgment, opinion) and/or “Certain Method of Organizing Human Activity” grouping of abstract ideas namely “advertising, marketing or sales activities or behaviors” because the claims disclose performing advertising, marketing or sales activities or behaviors comprising receiving request for content(e.g. advertising), extracting information from said request, calculating a probability a pair of devices are associated with a common user and identifying the pair of devices based on a calculated probability.
Accordingly, the claims recite an abstract idea This judicial exception is not integrated into a practical application. In particular the claims recite the additional elements of using devices, data storage device, processor, non-transitory computer readable medium. The aforementioned additional generic computing elements perform the steps of the claims at a high level of generality (i.e. As a generic medium performing generic computer function of receiving, extracting, calculating, and identifying such that it amounts no more than mere instructions to apply the exception using a generic computer component. Accordingly, this additional element does not integrate the abstract idea into a practical application because it does not impose any meaningful limits on practicing the abstract idea. The claim is directed to an abstract idea.
The claim does not include additional elements that are sufficient to amount to significantly more than the judicial exception. As discussed above with respect to integration of the abstract idea into a practical application, the additional element of a processor to receiving, extracting, calculating, and identifying amounts to no more than mere instruction to apply the exception using a generic computer component. Mere instructions to apply an exception using a generic computer component cannot provide an inventive concept. The claim is not patent eligible. As discussed above with respect to integration of the abstract idea into a practical application, the additional elements of devices, data storage device, processor, non-transitory computer readable medium, amounts to no more than mere instructions to apply the exception using a generic computer component. Mere instructions to apply an exception using a generic computer component cannot provide an inventive concept.
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.
Thus, taken individually and in combination, the additional elements do not amount to
significantly more than the above-identified judicial exception (the abstract idea). The dependent claims 22-28,30-35, and 37-40 appear to merely further limit the abstract and as such, the analysis of dependent claims 22-28,30-35, and 37-40 results in the claims “reciting” an abstract idea . The claims the claims do not recited additional elements that integrate the exception into a practical application the additional elements do not amount to an inventive concept (significantly more) other than the above-identified judicial exception (the abstract idea). Thus, based on the detailed analysis above, claims 21-40 are not patent eligible.
Response to Arguments
Applicant's arguments filed December 08, 2025 have been fully considered but they are not persuasive. The applicant argues in regards to the 101 rejection that the abstract idea is used to identify device pairs using content requests. The dynamically updated determination is therefore a particular calculation such that the claim as a whole integrates the judicial exception into a practical application. The applicant also cites paragraph [0069] of the applicant’s specification as support for the amendment. The Examiner respectfully disagrees on September 26, 2025, the United States Patent and Trademark Office (USPTO) issued an Appeals Review Panel decision in Ex Parte Desjardins, Appeal No. 2024-000567 (PTAB September 26, 2025, Appeals Review Panel Decision) vacating the Board’s new ground of rejection under 35 U.S.C. § 101. The decision was designated precedential on November 4, 2025. (SEE USPTO memorandum dated December 5, 2025) Specifically, Ex Parte Desjardins explained the following:
Enfish ranks among the Federal Circuit's leading cases on the eligibility of technological improvements. In particular, Enfish recognized that “[m]uch of the advancement made in computer technology consists of improvements to software that, by their very nature, may not be defined by particular physical features but rather by logical structures and processes.” 822 F.3d at 1339. Moreover, because “[s]oftware can make non-abstract improvements to computer technology, just as hardware improvements can,” the Federal Circuit held that the eligibility determinations should turn on whether “the claims are directed to an improvement to computer functionality versus being directed to an abstract idea.” Id. at 1336. (Desjardins, page 8).
Thus, based on the above and also in accordance with MPEP 2106.05(a) the applicant’s paragraph [0069] in the applicant's specification does not appear to identify a technical problem and explains the details of an unconventional technical solution expressed in the claim, or identifies technical improvements realized by the claim over the prior art. The applicant's claims do not appear to provide an improvement to the functioning of the computer, or an improvement to technology or a technical field. Nor has the applicant stated as such. The claims must include components or steps of the invention that provide the improvement described in the specification. (which the applicant has not provided) The claim itself does not need to explicitly recite the improvement described in the specification, however the claims must reflect the improvement identified in the specification. While the applicant's claims are not directed to machine learning/Artificial Intelligence, the Desjardins decision further emphasizes that merely performing a calculation (e.g. the calculation of a particular algorithm) and/or merely performing business logic via a computer is not sufficient to overcome a 101 rejection.
Limitations that are indicative of integration into a practical application:
Improvements to the functioning of a computer, or to any other technology or technical field - see MPEP 2106.05(a)
Applying or using a judicial exception to effect a particular treatment or prophylaxis for a disease or medical condition – see Vanda Memo
Applying the judicial exception with, or by use of, a particular machine - see MPEP 2106.05(b)
Effecting a transformation or reduction of a particular article to a different state or thing - see MPEP 2106.05(c)
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
The applicant’s claims do not have limitations that are indicative of integration into a practical application. Thus the 35 USC 101 rejection is maintained.
Potentially Allowable Subject Matter
The following is a statement of reasons for the indication of allowable subject matter:
In regards to claims 21-40 the closest prior art found by the examiner is the prior art of
Traasdahl et al. (US 20130124309) that discloses receiving, from a plurality of devices, a plurality of requests for content: extracting, from each of the plurality of requests, an occurrence, an address, and a unique identifier associated with a respective device; calculating a probability that a pair of devices are associated with a common user based on a weighted value of the plurality of requests, addresses for the pair of devices, and unique identifiers associated with the pair of devices;. however does not disclose prompting the common user to confirm a characteristic of a prior browsing session based on the calculated probability exceeding a first threshold level and, if the calculated probability exceeds a second threshold, requiring the common user to log-in based on the calculated probability exceeding a second threshold: receiving, from the common user via a user device, confirmation of the characteristic or confirmation of the characteristic and data of a successful user log-in; and identifying the pair of devices with a common user profile based on the user confirming the characteristic or confirming the characteristic and a successful log-in.
If the applicant were to overcome the 35 U.S.C 101 the claims 21-40 would be allowable over the prior art.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DARNELL A POUNCIL whose telephone number is (571)270-3509. The examiner can normally be reached Monday - Friday 10:00 - 6:00.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, 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.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/D.A.P/Examiner, Art Unit 3622
/ILANA L SPAR/Supervisory Patent Examiner, Art Unit 3622
Prosecution Insights