DETAILED ACTION
Status of the Claims
This office action is submitted in response to the amendment filed on 6/30/25.
Examiner notes that this application was restricted on 10/25/24. In response, Applicant elected claims 21-24.
Examiner further notes that this application is a continuation of 17/339456 (now US Patent No. 11861539), which is a continuation of 16/740149 (now US Patent No. 11062251), which is a continuation of 14/997013 (now US Patent No. 10535029), which claims priority from provisional application 62107285.
Examiner further notes Applicant’s priority date of 1/23/15, which stems from the aforementioned parent applications.
Claims 1-10 have been cancelled.
Claims 11-20 have been withdrawn.
Claims 21-24 have been amended and claims 25-30 are new.
Therefore, claims 21-30 are currently pending and have been examined.
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 .
Claim Objections
Claim 21 recites the limitation "the layer of processing including collecting content from the social media based on a search term of the one or more search terms." As a result of Applicant’s amendments, there is insufficient antecedent basis for this limitation in the claim. Correction is required.
Double Patenting
Claims 21-30 rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 11861539, claims 1-22 of U.S. Patent No. 11062251, and claims 1-15 of U.S. Patent No. 10535029. Specifically, these claims all involve collecting social media content, analyzing the social media content, and providing metrics and analytics of the content analysis.
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
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 21-30 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more.
Independent claim 21, in part, describes an invention comprising: collecting content from social media that is associated with search terms; analyzing the social media content based on one or more of the search terms; scanning messages for hashtags; identifying hashtags corresponding to a possible campaign; receiving additional input from a user, identifying groups of messages including at least one campaign identifier; and generating campaign analytics for the groups of messages. As such, the invention is directed to the abstract idea of collecting social media data, analyzing the social media for keywords and trends, and presenting the results of the data collection and analysis to a user, which, pursuant to MPEP 2106.04(a), is aptly categorized as a method of organizing human activity (ad campaign analysis) and a mental/manual process (data collection, data analysis, and output of the results of the data collection and analysis.). Therefore, under Step 2A, Prong One, the claims recite a judicial exception.
Next, the aforementioned claims recite additional elements that are associated with the judicial exception, including: collecting social media content; storing the collected content on a data store; displaying an interface; and displaying the generated campaign analytics. Dependent claim 24 further discloses displaying the image data with campaign analytics. Dependent claim 28 further discloses displaying analytics on an interface. Examiner understands these limitations to be insignificant extrasolution activity. (See Accenture, 728 F.3d 1336, 108 U.S.P.Q.2d 1173 (Fed. Cir. 2013), citing Cf. Diamond v. Diehr, 450 U.S. 175, 191-192 (1981) ("[I]nsignificant post-solution activity will not transform an unpatentable principle in to a patentable process.”).
The aforementioned claims also recite additional elements including a system comprising a “memory” for storing executable instructions, a “hardware processor” for executing the method, a “data store” for storing content; and a “user interface” for receiving input and displaying data. Dependent claim 25 further describes a “client” for displaying interfaces. Dependent claim 26 further describes the client as being a “mobile device or portable user device.” Dependent claim 27 further describes a “server” that contains the processor and an “additional processor” on an “external interface.” These limitations are recited at a high level of generality, and appear to be nothing more than generic computer components. Claims that amount to nothing more than an instruction to apply the abstract idea using a generic computer do not render an abstract idea eligible. Alice Corp., 134 S. Ct. at 2358, 110 USPQ2d at 1983. See also 134 S. Ct. at 2389, 110 USPQ2d at 1984.
Furthermore, looking at the elements individually and in combination, under Step 2A, Prong Two, the claims as a whole do not integrate the judicial exception into a practical application because they fail to: improve the functioning of a computer or a technical field, apply the judicial exception in the treatment or prophylaxis of a disease, apply the judicial exception with a particular machine, effect a transformation or reduction of a particular article to a different state or thing, or apply the judicial exception beyond generally linking the use of the judicial exception to a particular technological environment. Rather, the claims merely use a computer as a tool to perform the abstract idea(s), and/or add insignificant extra-solution activity to the judicial exception, and/or generally link the use of the judicial exception to a particular technological environment (e.g. computers connected to a social media network).
Next, under Step 2B, the claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the additional elements, when considered both individually and as an ordered combination, do not amount to significantly more than the abstract idea. Furthermore, looking at the limitations as an ordered combination adds nothing that is not already present when looking at the elements taken individually. Simply put, as noted above, there is no indication that the combination of elements improves the functioning of a computer (or any other technology), and their collective functions merely provide conventional computer implementation.
Additionally, pursuant to the requirement under Berkheimer, the following citations are provided to demonstrate that the additional elements, identified as extra-solution activity, amount to activities that are well-understood, routine, and conventional. See MPEP 2106.05(d).
Receiving or transmitting data over a network, e.g., using the Internet to gather data, Symantec, 838 F.3d at 1321, 120 USPQ2d at 1362; 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).
Outputting/Presenting data to a user. Mayo, 566 U.S. at 79, 101 USPQ2d at 1968; OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1363, 115 USPQ2d 1090, 1092-93 (Fed. Cir. 2015); MPEP 2106.05(g)(3).
Thus, taken alone and in combination, the additional elements do not amount to significantly more than the above-identified judicial exception (the abstract idea), and are ineligible under 35 USC 101.
Claims 22-24 and 29-30 are dependent on the aforementioned independent claims, and include all the limitations contained therein. These claims do not recite any additional technical elements, and simply disclose additional limitations that further limit the abstract idea with details regarding campaign analytics, generating types of graphs, analyzing images, what information the graphs are based on, and what is displayed. Thus, the dependent claims merely provide additional non-structural details that fail to meaningfully limit the claims or the abstract idea(s).
Therefore, claims 21-30 are not drawn to eligible subject matter, as they are directed to an abstract idea without significantly more.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 21-22, 25-26, and 28-29 are rejected under 35 USC 102(a)(2) as being anticipated by Brumleve (20130304818).
Claim 21: Brumleve discloses an analytics system to discover social media campaigns launched via one or more social networks based on two stages of user inputs, the first stage to collect an entity name, and to generate metrics corresponding to the launched social media campaigns, the system comprising:
a memory storing instructions that, when executed by at least one hardware processor (Paragraph 57), implement a software system to continually ingest social media as it is published to one or more social networks (Paragraph 112; Claim 5. The social media content collection engine continuously retrieves social media content items from the social network in real time) during a time period (Fig. 7. The user determines the time period during which the social media content is collected and analyzed) and generate analytics representative of the social media over the time period as the social media is published during the time period (Figs. 13-15 and 17-22. The system generates various analytical charts and graphs based on the social media metrics from the particular time period selected by the user);
the software system further including a first data processor to perform a layer of processing on the continually ingested social media, the layer of processing including collecting content from the social media based on a search term of the one or more search terms (Fig. 2 #102; Paragraphs 60-63. The social media content collection engine continuously retrieves social media content in real time based on search terms, time periods, and social media networks selected by the user) and providing a data store containing the collected content (Paragraphs 4-5 and 85. The social media content is stored locally for further analysis);
wherein the collected content includes links to social media accounts and messages published by the social media accounts (Paragraphs 81, 83, and 85. The content includes hashtags that link to various accounts and messages published in social media posts); and
a second different data processor to perform an additional layer of processing based on the layer of processing by the first data processor (Fig. 2 #104. The social media content analysis engine is separate from the social media collection engine), the additional layer of data processing including:
scanning the messages for hashtags corresponding to the entity name (Paragraphs 90-92; Figs. 13-14. The system scans the social media content for hashtags and keywords that correspond to various entities.);
identifying some of the hashtags as corresponding to a possibly launched social media campaign, based, at least in part, on the number of times that the hashtags are used in the messages (Paragraphs 91-92, 106, and 140. Figs. 13-14. The system identifies hashtags in the social media content associated with different possible campaigns and counts the number of times that the terms occur in the content);
displaying an interface responsive to a result of the identifying, to complete a second stage of the two stages of user input, the interface including at least two sections comprising: a section listing the possible launched social media campaigns, the first section to display one or more hashtags and one or more corresponding first control elements (Figs. 13-14 and 17. Analytics are displayed on an interface, the analytics displaying hashtags and one or more control elements associated with the hashtags); and an additional section to display one or more additional hashtags and one or more corresponding additional second control elements (Figs. 13 and 21); wherein user input via the interface comprises a second stage of the two stages of user input, in which the discovery of the social media campaigns follows the second stage (Fig. 13 and 21. A plurality of hashtags are displayed via the interface and their associated analytics. This step is performed after the step after collecting entity names and/or keywords that are input by a user in Figs. 3-4), and
wherein the additional layer of processing further comprises:
identifying groups of the messages including the at least one campaign identifier (Figs. 14 and 20. The system groups the messages by showing the number of times that each of the different terms and hashtags occur in the messages);
generating campaign analytics for the groups of the messages and displaying the generated campaign analytics via an additional interface (Fig. 21. Different terms/hashtags associated with social media campaigns are displayed on a different interface from the one used to enter search criteria.).
Claim 22: Brumleve further discloses a system wherein the generated campaign analytics comprise real time social media metrics. (Paragraphs 100 and 112. Social media data is collected and analyzed in real time. The results of the analysis are likewise produced in real time.).
Claims 25-26: Brumleve further discloses a system wherein the interfaces are displayed on a client, which comprises a mobile device or portable user device. (Paragraph 58. The interfaces are displayed on a user’s mobile phone.).
Claim 28: Brumleve further discloses a system wherein the additional interface displays the generated campaign analytics as a function of time. (Figs. 13 and 17-18. The analytics are graphically displayed as a function of a period of time.).
Claim 29: Brumleve further discloses a system wherein the graph is based on a selected period of time, the selected period of time specified by the user via the additional interface. (Fig. 7; Paragraph 77. The user selects a period of time that they want to utilize for the analytics.).
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 23 and 27 are rejected under 35 USC 103 as being unpatentable over Brumleve (20130304818) in view of Official Notice.
Claim 23: Brumleve discloses a system further including:
generating graphs that identify numbers of followers of the social media accounts for different days (Figs. 13-14. The analytics provide graphs and charts that show the number of followers who engage/mention particular keywords in social media); and
displaying messages in the graphs posted by the social media accounts during associated ones of the different days (Figs. 14-16. The system shows actual messages and images posted by the social media accounts during a particular day or period of time).
Brumleve does not appear to explicitly describe a system further comprising displaying layered circles on the graph during the associated ones of the different days associated with different types of responses to the messages; and varying diameters of the circles according to amounts of the different types of responses to the messages.
Official Notice is taken that it is old and well-known to display layered circles on a graph in response to the messages with varying diameters of the circles according to amounts of the different types of responses to the messages. (This feature merely describes a “bubble chart,” which is a visualization tool commonly used to show different data trends over a period of time. Bubble charts use filled circles with different sizes to depict data points, with the size of each circle being proportional to the magnitude of the data point. The history of bubble charts dates back to at least 1938 when John Tukey first used them in his dissertation on graphical methods for exploratory data analysis. See, for example, https://www.spiritedpuddlejumper.com/the-history-of-bubble-charts/).
Therefore, it would have been obvious to one of ordinary skill in the art prior to the filing date of the invention to present analytical data via bubble charts. One would have been motivated to do this in order to show relationships between different data points through a visual medium.
Claim 27: Brumleve discloses the use of a server to execute the method (Paragraph 58), but does not appear to explicitly describe a system wherein the first data processor operates on at least one server comprising an external interface, and wherein the second data processor communicates with the at least one server over the external interface.
Official Notice is taken that it is old and well-known in the art for a server to contain a processor, and for the server to have an external interface (port) that is used to connect to other devices in a wired or wireless manner.
Therefore, it would have been obvious to one having ordinary skill in the art at the time of the invention to combine the features of the two inventions since the claimed invention is merely a combination of old elements, and in the combination, each element merely would have performed the same function as it did separately, and one of ordinary skill in the art would have recognized that the results of the combination were predictable.
Claim 24 is rejected under 35 USC 103 as being unpatentable over Brumleve (20130304818) in view of Soni (20160140619).
Brumleve discloses a system for displaying the image data with the campaign analytics (Fig. 16; Paragraph 94. Videos and photos associated with keywords chosen by the user are displayed with analytics data).
Brumleve does not appear to explicitly describe a system for extracting image data from fonts displayed in the messages. Soni, however, discloses a system for extracting image data from fonts displayed in the messages (Paragraph 48. The system identifies social media posts that describe a particular brand. The entity extractor then identifies other posts related to the brand and identifies pictures within the posts containing a logo or image associated with the brand.).
Therefore, it would have been obvious to one of ordinary skill in the art prior to the filing date of the invention to combine this feature of Soni with those of Brumleve. One would have been motivated to do this in order to provide easily identifiable data that improves user convenience when viewing the analytics data.
Claim 30 is rejected under 35 USC 103 as being unpatentable over Brumleve (20130304818) in view of Holden (9467531).
Brumleve discloses a system in which a user selects one social media network from a plurality of social media networks for which they would like to see analytics (Figs. 3-4; e.g. Twitter), but does not appear to explicitly describe a system wherein the one or more social networks comprises plural social networks; and wherein the additional interface includes different sub-sets of the generated campaign analytics for different ones of the plural social networks.
Holden, however, discloses a system wherein the one or more social networks comprises plural social networks; and wherein the additional interface includes different sub-sets of the generated campaign analytics for different ones of the plural social networks. (Figs. 12-13; Col. 29, Lines 47-58; Col. 31, Lines 18-33. The interface displays analytics for multiple social media networks.).
Therefore, it would have been obvious to one of ordinary skill in the art prior to the filing date of the invention to combine this feature of Holden with those of Brumleve. One would have been motivated to do this in order to provide a convenient means for displaying analytics for different social media networks on a single screen.
Other Relevant Prior Art
Though not cited in the above rejections, the following references are deemed to be relevant to Applicant’s disclosures:
Jamal et al. (20140214480), directed to a method for determining a customer profile state.
Gurevich et al. (11122009), directed to a method for identifying geographic locations of social media content collected over social networks.
Stoltz et al. (20150154657), directed to a web-based social advertising system.
Panigrahi et al. (20160092837), directed to a method for supplementing job postings with social network data.
Schiffman et al. (10600060), directed to a method for predictive analytics from visual data.
Response to Arguments
The previous double patenting rejection is sustained in light of Applicant’s failure to file a Terminal Disclaimer.
Applicant’s arguments regarding the sufficiency of the claims under 35 USC 101 are unpersuasive.
While most of Applicant’s comments lack relevance to the previous rejection, Applicant does appear to argue that the invention describes a new interface that represents a technical improvement. Examiner disagrees entirely.
Contrary to claims that have been found to be eligible by the Federal Circuit (e.g. Data Engine v. Google), Applicant’s claims do not recite specific implementation details of any particular technology, and the claim lacks any specific means or technological detail for achieving the Appellant’s asserted improvement. The claims do not provide a technical solution to then-existing technological problems in computers and search engines. At best, the process is improved but not the particular technological components. Rather, claim 21 more resembles those claims in Data Engine that were found patent ineligible because they were more general and did not recite a “specific technical solution and improvement in electronic spreadsheet functionality.” Data Engine, 906 F.3d at 1012. As such, rather than reciting a technical improvement to an interface, the invention merely uses an interface to receive and display data in a standard fashion.
Next, Applicant argues that the claims are eligible because they involve discovery of social media campaigns. Examiner finds that this merely represents a business improvement rather than an improvement to a technological or technical field. Furthermore, Applicant has not provided any evidence that the programming related to their “improvement” would entail anything atypical from conventional programming. And, as the Federal Circuit clearly stated, “after Alice, there can remain no doubt: recitation of generic computer limitations does not make an otherwise ineligible claim patent-eligible.” DDR Holdings, LLC v. Hotels.com, 773 F.3d 1245, 1256 (Fed. Cir. 2014).
Next, Applicant argues that the claims are eligible in view of the holding in Core Wireless. Examiner disagrees. In Core Wireless Licensing S.A.R.L. v. LG Electronics, Inc., the Federal Circuit held that user interface claims are patent eligible under 35 U.S.C. § 101 because they “recite a specific improvement over prior systems, resulting in an improved user interface for electronic devices.” Core Wireless Licensing S.A.R.L. v. LG Elecs., Inc., 880 F.3d 1356, 1363 (Fed. Cir. 2018). The court determined that the claims are directed to “a particular manner of summarizing and presenting information in electronic devices” and that the claims do not “us[e] conventional user interface methods to display a generic index on a computer.” Id. In its analysis, the Federal Circuit pointed to claim limitations that disclose the specific manner of displaying a limited set of information to the user. The court looked to teachings in the specification that the claimed technology addresses problems with “efficiency of using the electronic device,” “particularly those with small screens.” Id. The claimed user interfaces allow a user to more quickly access data and applications in electronic devices, improving “[t]he speed of a user’s navigation through various views and windows.” Id.
Accordingly, the Federal Circuit determined that the claims were directed to “an improvement in the functioning of computers” and not to any abstract idea, and thus are patent eligible under step one of the eligibility analysis. This resolved the question, so the court did not proceed to step two.
None of these parallel the interface described in Applicant’s invention.
For at least these reasons, the rejection under 35 USC 101 is sustained.
Regarding the prior art rejections, Applicant argues that the primary reference describes improvements to generalized searching of social media rather than discovering social media campaigns. Examiner notes that this merely indicates an intended use of the inventions. Notwithstanding the intended use(s) of the inventions, they contain the exact same features and limitations.
Applicant’s additional arguments are rendered moot in view of the newly cited grounds of rejection, which were necessitated by Applicant’s amendments.
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 CHRISTOPHER BUSCH whose telephone number is (571)270-7953. The examiner can normally be reached M-F 10-7.
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/CHRISTOPHER C BUSCH/Examiner, Art Unit 3621
/WASEEM ASHRAF/Supervisory Patent Examiner, Art Unit 3621