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
The amendment filed on February 9, 2026 cancelled no claims. Claims 1, 6, 8-10, 14, 16, and 19-20 were amended and no new claims were added. Thus, the currently pending claims addressed below are claims 1-20.
Claim Interpretation
The following claim terms have required examiner interpretation:
DOM elements: Document Object Model elements - The individual components of a web page that are represented as objects within the Document Object Model (DOM). The DOM is a programming interface for HTML and XML documents, treating them as a tree-like structure where each node in the tree represents a part of the document, including elements, attributes, and text. Every HTML or XML tag in a document, such as <html>, <head>, <body>, <h1>, <p>, <a>, <input>, etc., is represented as an element object in the DOM (Examiner is using the commonly understood meaning of DOM elements because the applicant’s specification provides no definition of the term DOM element(s).).
Claim Rejections - 35 USC § 112
The amendment filed on February 9, 2026 has overcome the 35 U.S.C. 112(b) rejections of claims 8-15 raised in the office action dated November 19, 2025. Thus, the rejections are hereby withdrawn.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-20 are directed to methods which would be classified under one of the listed statutory classifications (i.e., 2019 Revised Patent Subject Matter Eligibility Guidance (hereinafter “PEG”) “PEG” Step 1=Yes).
However, claims 1-20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more. Claim(s) 1, 8-10, 16, and 20 recite(s) the following abstract idea: (Examiner note: The plurality of client-side computing devices and there functions, the website associated with a website owner and its functions, the computing device of the website owner and its functions, and the graphical user interface (GUI) displays and there functions have all been included as part of the abstract idea itself because these elements are outside of the scope of the computing system performing the method claimed by the applicant and, as such, cannot be considered “additional elements” of the method being performed by the computing system)
receiving, from each of one or more client-side computing devices, a request to access a website, wherein the website is associated with a website owner;
transmitting, in response to receiving the request, website code and an include link that corresponds to the website to each of the one or more client-side computing devices,
wherein the include link is configured to import tracking code into the website code for the website that is launched at each of the one or more client-side computing devices,
wherein the one or more client-side computing devices is configured to load, in respective sessions and in respective graphical user interface (GUI) displays, the website based on the transmitted website code and the include link, and
wherein the one or more client-side computing devices is configured to (i) request the tracking code based on the include link, (ii) receive the tracking code, and (iii) load the tracking code with the website to generate bits of code on a crawl script in response to detecting when the respective user perform actions with the loaded website in the respective sessions;
receiving, in response to each of the one or more client-side computing devices loading the website and the tracking code with the website, tracking data that is generated at each of the one or more client-side computing devices when the respective users perform actions, during the respective sessions, in the website;
identifying events in the tracking data, wherein at least a portion of the events are related to specific document object model (DOM) elements on the website;
transmitting, to a computing device of the website owner, the identified events for presentation in a graphical user interface (GUI) display at the computing device of the website owner;
receiving, from the computing device of the website owner, input indicating selection of a subset of the identified events to be tracked and a score value assignment for each event in the subset of events;
designating a scoring framework based on the received input, wherein the scoring framework comprises the selected events to be tracked and the corresponding score value assignments for the website;
storing the scoring framework in association with at least one of an identifier uniquely associated with the website owner or an identifier uniquely associated with the website;
returning, for presentation in the GUI display at the computing device of the website owner, the scoring framework;
retrieving the scoring framework associated with the website that was previously generated based at least in part on user inputs from the website owner;
automatically applying the scoring framework to the tracking data, wherein applying the scoring framework comprises:
identifying, in the tracking data, presence of one or more of the selected events from the scoring framework, and
assigning, to each of the identified one or more of the selected events, the corresponding score value;
generating output indicating an average visitor engagement score for the website based on applying the scoring framework for the session, wherein the average visitor engagement score is included in a circular graphical element; and
returning/transmitting, to the computing device of the website owner, output for the average visitor engagement score included in the circular graphical element, and instructions for presenting the output for the average visitor engagement score, thereby enabling presentation of the average visitor engagement score in the GUI display at the computing device of the website owner.
The limitations as detailed above, as drafted, falls within the “Certain Method of Organizing Human Activity” grouping of abstract ideas because they recite commercial or legal interactions namely advertising, marketing and sales activities or behaviors. Accordingly, the claim recites an abstract idea (i.e. “PEG” Revised Step 2A Prong One=Yes).
This judicial exception is not integrated into a practical application because the claim only recites the additional elements of a computer system comprising and a data store (a general-purpose computer with generic computer components).
The following limitations, if removed from the abstract idea and considered additional elements, merely perform generic computer function of storing, communicating (e.g., transmitting and receiving), and displaying data and, as such are insignificant extra-solution activities (see MPEP 2016.05(d)(II) and MPEP 2106.05(g)):
receiving, by a computer system and from each of one or more client-side computing devices, a request to access a website, wherein the website is associated with a website owner (receiving data);
transmitting, by the computer system and in response to receiving the request, website code and an include link that corresponds to the website to each of the one or more client-side computing devices, wherein the include link is configured to import tracking code into the website code for the website that is launched at each of the one or more client-side computing devices, wherein the one or more client-side computing devices is configured to load, in respective sessions and in respective graphical user interface (GUI) displays, the website based on the transmitted website code and the include link, and wherein the one or more client-side computing devices is configured to (i) request the tracking code based on the include link, (ii) receive the tracking code, and (iii) load the tracking code with the website to generate bits of code on a crawl script in response to detecting when the respective user perform actions with the loaded website in the respective sessions (transmitting data);
receiving, by the computer system and in response to the client-side computing device loading the website and the tracking code with the website, tracking data that is generated at each of the plurality of client-side computing devices when the respective users at the client-side computing devices perform, during the respective sessions, perform the actions in the website (receiving data);
transmitting, by the computer system and to a computing device of the website owner, the identified events for presentation in a graphical user interface (GUI) display at the computing device of the website owner (transmitting data);
receiving, by the computer system and from the computing device of the website owner, input indicating (i) selection of a subset of the identified events to be tracked and (ii) a score value assignment for each event in the subset of events (receiving data);
storing, by the computer system and in a data store, the scoring framework in association with at least one of an identifier uniquely associated with the website owner or an identifier uniquely associated with the website (storing data);
returning, by the computer system and for presentation in the GUI display at the computing device of the website owner, the scoring framework (transmitting data);
retrieving, by the computer system and from the data store, the scoring framework associated with the website that was previously generated based at least in part on user inputs from the website owner (receiving data); and
transmitting, by the computer system and to the computing device of the website owner, output for the average visitor engagement score included in the circular graphical element, and instructions for presenting the output for the average visitor engagement score, thereby enabling presentation of the average visitor engagement score in the GUI display at the computing device of the website owner (transmitting data).
The additional technical elements above are recited at a high-level of generality (i.e., as a generic processor and generic computer components performing a generic computers function of processing, communicating and displaying) such that it amounts to no more than mere instructions to apply the exception using one or more general-purpose computers and generic computer components. The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the additional technical elements above do not integrate the abstract idea/judicial exception into a practical application because it does not impose any meaningful limits on practicing the abstract idea. More specifically, the additional elements fail to include (1) improvements to the functioning of a computer or to any other technology or technical field (see MPEP 2106.05(a)), (2) applying or using a judicial exception to effect a particular treatment or prophylaxis for a disease or medical condition (see Vanda memo), (3) applying the judicial exception with, or by use of, a particular machine (see MPEP 2106.05(b)), (4) effecting a transformation or reduction of a particular article to a different state or thing (see MPEP 2106.05(c)), or (5) applying or using the judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment, such that the claim as a whole is more than a drafting effort designed to monopolize the exception (see MPEP 2106.05(e) and Vanda memo).
Rather, the limitations merely add the words “apply it” (or an equivalent) with the judicial exception, or mere instructions to implement an abstract idea on one or more computers, or merely uses computers as a tool to perform an abstract idea (see MPEP 2106.05(f)), or generally link the use of the judicial exception to a particular technological environment or field of use (see MPEP 2106.05(h)).
Thus, the claim is “directed to” an abstract idea (i.e. “PEG” Revised Step 2A Prong Two=Yes)
When considering Step 2B of the Alice/Mayo test, the claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the claims do not amount to significantly more than the abstract idea.
More specifically, as discussed above with respect to integration of the abstract idea into a practical application, the additional elements of using a computer system comprising a data store (e.g., general-purpose computer with generic computer components) to perform the claimed functions amounts to no more than mere instructions to apply the exception using one or more general-purpose computers and one or more generic computer component.
“Generic computer implementation” is insufficient to transform a patent-ineligible abstract idea into a patent-eligible invention (See Affinity Labs, _F.3d_, 120 U.S.P.Q.2d 1201 (Fed. Cir. 2016), citing Alice, 134 S. Ct. at 2352, 2357) and more generally, “simply appending conventional steps specified at a high level of generality” to an abstract idea does not make that idea patentable (See Affinity Labs, _F.3d_, 120 U.S.P.Q.2d 1201 (Fed. Cir. 2016), citing Mayo, 132 S. Ct. at 1300). Moreover, “the use of generic computer elements like a microprocessor or user interface do not alone transform an otherwise abstract idea into patent-eligible subject matter (See FairWarning, 120 U.S.P.Q.2d. 1293, citing DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1256 (Fed. Cir. 2014)). As such, the additional elements of the claim do not add a meaningful limitation to the abstract idea because they would be generic computer functions in any computer implementation. Thus, taken alone, the additional elements do not amount to significantly more than the above-identified judicial exception (the abstract idea). Looking at the limitations as an ordered combination adds nothing that is not already present when looking at the elements taken individually. There is no indication that the combination of elements improves the functioning of the computer or improves any other technology. Their collective functions merely provide generic computer implementation.
The Examiner notes simply implementing an abstract concept on one or more computers, without meaningful limitations to that concept, does not transform a patent-ineligible claim into a patent-eligible one (See Accenture, 728 F.3d 1336, 108 U.S.P.Q.2d 1173 (Fed. Cir. 2013), citing Bancorp, 687 F.3d at 1280), limiting the application of an abstract idea to one field of use does not necessarily guard against preempting all uses of the abstract idea (See Accenture, 728 F.3d 1336, 108 U.S.P.Q.2d 1173 (Fed. Cir. 2013), citing Bilski, 130 S. Ct. at 3231), and further the prohibition against patenting an abstract principle “cannot be circumvented by attempting to limit the use of the [principle] to a particular technological environment” (See Accenture, 728 F.3d 1336, 108 U.S.P.Q.2d 1173 (Fed. Cir. 2013), citing Flook, 437 U.S. at 584), and finally merely limiting the field of use of the abstract idea to a particular existing technological environment does not render the claims any less abstract (See Affinity Labs, _F.3d_, 120 U.S.P.Q.2d 1201 (Fed. Cir. 2016), citing Alice, 134 S. Ct. at 2358; Mayo, 132 S. Ct. at 1294; Bilski v. Kappos, 561 U.S. 593, 612 (2010); Content Extraction & Transmission LLC v. Wells Fargo Bank, Nat’l Ass’n, 776 F.3d 1343, 1348 (Fed. Cir. 2014); buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355 (Fed. Cir. 2014).
Applicant herein only requires one or more general-purpose computer and generic computer components (as evidenced from paragraphs 178-179 and figure 9 of the applicant’s specification); therefore, there does not appear to be any alteration or modification to the generic activities indicated, and they are also therefore recognized as insignificant activity with respect to eligibility. Finally, the following limitations, if removed from the abstract idea and considered additional elements, would be considered insignificant extra solution activity as they are directed to merely receiving, storing, displaying and/or transmitting data (see MPEP 2016.05(d)(II) and MPEP 2106.05(g)):
receiving, by a computer system and from each of one or more client-side computing devices, a request to access a website, wherein the website is associated with a website owner (receiving data);
transmitting, by the computer system and in response to receiving the request, website code and an include link that corresponds to the website to each of the one or more client-side computing devices, wherein the include link is configured to import tracking code into the website code for the website that is launched at each of the one or more client-side computing devices, wherein the one or more client-side computing devices is configured to load, in respective sessions and in respective graphical user interface (GUI) displays, the website based on the transmitted website code and the include link, and wherein the one or more client-side computing devices is configured to (i) request the tracking code based on the include link, (ii) receive the tracking code, and (iii) load the tracking code with the website to generate bits of code on a crawl script in response to detecting when the respective user perform actions with the loaded website in the respective sessions (transmitting data);
receiving, by the computer system and in response to the client-side computing device loading the website and the tracking code with the website, tracking data that is generated at each of the plurality of client-side computing devices when the respective users at the client-side computing devices perform, during the respective sessions, perform the actions in the website (receiving data);
transmitting, by the computer system and to a computing device of the website owner, the identified events for presentation in a graphical user interface (GUI) display at the computing device of the website owner (transmitting data);
receiving, by the computer system and from the computing device of the website owner, input indicating (i) selection of a subset of the identified events to be tracked and (ii) a score value assignment for each event in the subset of events (receiving data);
storing, by the computer system and in a data store, the scoring framework in association with at least one of an identifier uniquely associated with the website owner or an identifier uniquely associated with the website (storing data);
returning, by the computer system and for presentation in the GUI display at the computing device of the website owner, the scoring framework (transmitting data);
retrieving, by the computer system and from the data store, the scoring framework associated with the website that was previously generated based at least in part on user inputs from the website owner (receiving data); and
transmitting, by the computer system and to the computing device of the website owner, output for the average visitor engagement score included in the circular graphical element, and instructions for presenting the output for the average visitor engagement score, thereby enabling presentation of the average visitor engagement score in the GUI display at the computing device of the website owner (transmitting data).
Thus, taken individually and in combination, the additional elements do not amount to significantly more than the above-identified judicial exception (the abstract idea) (i.e., “PEG” Step 2B=No).
The dependent claims 2-7, 11-15, and 17-19 appear to merely further limit the abstract idea by further limiting the sessions which is considered part of the abstract idea (Claims 2-4, and 17); further limiting the average visitor engagement score which is considered part of the abstract idea (Claims 5 and 18); further limiting the output generated and/or the transmission of the output which are both considered part of the abstract idea (Claims 6-7, 11-14, and 19); and further limiting the events which is considered part of the abstract idea (Claim 15), and therefore only further limit the abstract idea (i.e. “PEG” Revised Step 2A Prong One=Yes), does/do not include any new additional elements that are sufficient to amount to significantly more than the judicial exception, and as such are “directed to” said abstract idea (i.e. “PEG” Step 2A Prong Two=Yes); and do not add significantly more than the idea (i.e. “PEG” Step 2B=No)..
Thus, based on the detailed analysis above, claims 1-20 are not patent eligible.
Possible Allowable Subject Matter
Claims 1-20 would be allowable over the prior art if the applicant were to be able to overcome the 35 USC 101 rejections identified above.
The following is a statement of reasons for the indication of allowable subject matter: The most relevant prior the examiner has found is:
Paulsen et al. (PGPUB: 2021/0248129) which in summary discloses receiving, by a computer system and from a plurality of client-side computing device, tracking data that is recorded at each of the plurality of client-side computing devices when respective users perform actions, during respective sessions, in a website associated with a website owner.
Yap et al. (PGPUB: 2021/0034206) which in summary discloses identifying tracked user interaction events associated with DOM elements of the website to generate, in a graphical user interface, replays and/or heatmaps of interactions that users made on the website.
Razvi et al. (PGPUB 2014/0052502) which is summary discloses determining a visitor engagement score for a website, wherein an objective score, such as an average of measured scores, can be calculated. The measured scores are web analytics or calculated from web analytics. Scores can be calculated for current and historic sessions.
Mishra, (Visitor Engagement Score in Adobe Analytics, February 21, 2023, https://www.linkedin.com/pulse/visitor-engagement-score-adobe-analytics-subhramanyu-mishra, pages 1-8) which in summary discloses establishing visitor engagement scores in Adobe Analytics where user assigned values are input to different engagements events and these values are used to generate a visitor engagement score based on tracked event data that is received.
When combined the prior art of Paulsen, Yap, Razvi, and Mishra disclose a method for designating and applying a scoring framework to score a website based on visitor engagement, a method for designating a scoring framework for scoring a website based on visitor engagement, and a method for determining a visitor engagement score for a website using a scoring framework comprising:
receiving, by a computer system and from a plurality of client-side computing device, tracking data that is recorded at each of the plurality of client-side computing devices when respective users perform actions, during respective sessions, in a website associated with a website owner;
identifying, by the computer system, events in the tracking data, wherein at least a portion of the events are related to specific DOM elements on the website;
transmitting, by the computer system and to a computing device of the website owner, the identified events for presentation in a graphical user interface (GUI) display at the computing device of the website owner, wherein the identified events can be used to replay user session and/or display heatmaps of events related to specific DOM elements on the website, wherein the user graphical use interface is also able to present a selectable list of a plurality of possible website events that can be tracked and a field associated with each of the plurality of possible website events that a user can edit to assign a score value to each of the plurality of possible website events;
receiving, by the computer system and from the computing device of the website owner, input indicating (i) selection of a subset of possible website events to be tracked and (ii) a score value assignment for each event in the subset of events;
designating, by the computer system, a scoring framework based on the received input, wherein the scoring framework comprises the selected events to be tracked and the corresponding score value assignments for the website;
storing, by the computer system and in a data store, the scoring framework in association with at least one of an identifier uniquely associated with the website owner or an identifier uniquely associated with the website;
retrieving, by the computer system and from the data store, the scoring framework associated with the website.
automatically applying, by the computer system, the scoring framework to the tracking data, wherein applying the scoring framework comprises:
identifying, in the tracking data, presence of one or more of the selected events from the scoring framework, and
assigning, to each of the identified one or more of the selected events, the corresponding score value;
generating, by the computer system, output indicating an average visitor engagement score for the website based on applying the scoring framework; and
transmitting, by the computer system to the computing device of the website owner, the output with instructions for presentation in the GUI display at the computing device of the website owner.
As combined, the prior art of Paulsen, Yap, Razvi, and Mishra allow a website owner to select a subset of all possible website events to be tracked and an input a score value assignment for each event in the subset of events.
In contrast, the instant claims only present the website owner with only the identified events that are within the received tracking data that was recorded at each of the plurality of client-side computing devices when respective users perform actions. According to the claims, the website owner is only able to select and assign scores to a subset of the identified event that are within the received tracking data that was recorded at each of the plurality of client-side computing devices when respective users perform actions. Thus, the invention is only able to receive website owner input selections and scores for a subset of the events that were identified in the tracking data that was recorded at each of the plurality of client-side computing devices when respective users perform actions. It is this specific subset of events and scores that are used to designate the scoring framework which is applied to the tracking data.
While, it might be obvious perhaps even expected, for a website owner using the invention of Paulsen, Yap, Razvi, and Mishra, to select and assign scores to only a subset of those identified events that are in the tracking data if they want to generate an average visitor engagement score for the tracked data, they are not limited to this specific set of the plurality of possible website events.
Therefore, Paulsen, Yap, Razvi, and Mishra do not teach the limitations of independent claim 1, 8, and 16. The examiner has been unable to find prior art that would be able to be combined with the prior art which discloses:
transmitting for display in the GUI only those website events that were identified within the received tracking data;
allowing users to select and assign scores to only a subset of those website events that were within the received tracking data;
receiving website owner input indicating only the selected subset events that were identified within the received tracking data;
designating a scoring framework based on the received website owner input indicating only the selected subset events that were identified within the received tracking data;
applying this specific scoring framework to the tracking data; and
generating an average visitor engagement score for the website based on this specific framework.
Even if the examiner were to find prior art that disclosed the above limitation, it would not have been obvious to one or ordinary skill in the art to combine such a reference with the prior art of Paulsen, Yap, Razvi, and Mishra without the use of impermissible hindsight, by using the applicant’s claims as a roadmap.
As such, claims 1-20 would be allowable over the prior art if the applicant were to be able to overcome the 35 USC 101 rejections identified above.
Response to Arguments
Applicant's arguments filed February 9, 2026 have been fully considered but they are not persuasive.
The applicant’s arguments, with respect to the 35 USC 112(b) rejections, are moot as the claim amendment has overcome the rejections.
The applicant argues, with respect to the 35 USC 101 rejection, that the currently pending claims do not recite a judicial exception based on the USPTO Memo on Reminders. The examiner strongly disagrees.
The applicant has apparently misconstrued the USPTO Memo on Reminders. First, the USPTO Memo on Reminders did not change, in any way, the manner in which claims are analyzed with regards to 35 USC 101. As clearly explained in MPEP 2106.04(II)(A)(1), an examiner must determine whether the claims “set forth” an abstract idea, “describe” an abstract idea, or merely “involve” an abstract idea. An example of a claim that merely “involve” an abstract idea is a claim for a physical object such as a teetertotter. While the teetertotter when operated would “involve” the principle of that force equals mass times acceleration (F=ma), the physical object of the teetertotter itself does not “set forth” or “describe” such an abstract idea because it is not required to operate. However, a claim directed to a method of operating a teetertotter would likely either “set forth” or “describe” the principle of that force equals mass times acceleration (F=ma). If such a method actually stated the formula F=ma, it would “set forth” the abstract idea F=ma. If such a method merely described how the teetertotter moves when mass is applied to one end or the other it would be “describing” the abstract idea F=ma. Second, the USPTO Memo on Reminders was specific to abstract ideas that fall within the “Mental Process” category of abstract idea and the “Mathematical Concept” category of abstract ideas. With regards to claims that recite a “Mental Process”, examiners were reminded that, in the “Mental Process” category, only claim limitations that can be performed in the human mind or by pen and paper, for example, observations, evaluations, judgements, or opinions can properly be included as part of the abstract idea itself. All other limitations should be considered “additional elements” and considered under Step 2a, Prong 2 and/or Step 2b. Likewise, with regards to claims that recite a “Mathematical Concepts”, examiners were reminded that, in the “Mathematical Concepts” category, only claim limitations that “set forth” or “describe” mathematical concepts, such as mathematical formulas or equations, mathematical calculations, and mathematical relationships, can properly be included as part of the abstract idea itself. All other limitations should be considered “additional elements” and considered under Step 2a, Prong 2 and/or Step 2b. However, the instant claims fall within the “Certain Methods of Organizing Human Activity” category and the USPTO Memo on Reminders did not provide any reminders with regards to the “Certain Methods of Organizing Human Activity” category. This is probably because the “Certain Methods of Organizing Human Activity” category does not have any specific limitations as to what is included as part of the abstract idea itself. The courts have found that gathering data, analyzing data, determining results, generating tailored content, transmitting the tailored content, and displaying the tailored content are all properly considered part of the abstract idea itself when the claim recites an abstract idea that fall within the “Certain Methods of Organizing Human Activity” category.
The applicant appears to also be confusing the requirements under Step 2a, Prong 2 and/or Step 2b with the requirements under Step 2a, Prong 1. Step 2a, Prong 1 does not require any consideration regarding the claims as a whole. Under Step 2a, Prong 1, an examiner is to identify which, if any, limitations of the claim recite an abstract idea; identify those limitation; and identify the category and subcategory of abstract idea those limitations recite. There is no requirement under Step 2a, Prong 1 to consider the claim as a whole. In fact, it requires the opposite because the “additional elements” of the claim cannot be considered under Step 2a, Prong 1. The consideration of the “additional elements” of the claim can only occur under Step 2a, Prong 2 and/or Step 2b. As such, the applicant’s arguments with regard to the claims as a whole not reciting an abstract idea under Step 2a, Prong 1 are not convincing and the rejections have been maintained.
Assuming the applicant is, instead, intending to argue that the claims as a whole transform the abstract idea into a practical application under Step 2a, Prong 2 because it recites a improvement in technological telemetry and an improved analytics mechanism, the examiner disagrees. In order for a claim to overcome a rejection under Step 2a, Prong 2, the purported improvement must be rooted in the “additional elements” of the claim in a manner other than merely applying the abstract idea using a general-purpose computer with generic computer components. “Additional elements” are defined as those elements of a claim that are not part of the abstract idea itself. The only “additional elements” in the claims are a computer system comprising a data store which is a general-purpose computer with generic computer components that is used as a tool to merely apply the abstract idea. As such, the “additional elements” of the claim, whether considered individually or as a whole, are incapable of transforming the abstract idea into a practical application under Step 2a, Prong 2. The argued limitations that purportedly result in the argued improvement are all part of the abstract idea itself which is merely applied using the general-purpose computer with generic computer components. Improvements of this nature are improvements rooted solely in the abstract idea itself and are considered an improvement to an abstract idea which is an improvement in ineligible subject matter (see MPEP 2106.05(a) - “It is important to note, the judicial exception alone cannot provide the improvement”; and MPEP 2106.05(a)(II) - “However, it is important to keep in mind that an improvement in the abstract idea itself (e.g. a recited fundamental economic concept) is not an improvement in technology”; and the SAP v Investpic decision - Page 2, line 22 through Page 3, line 13 - Even assuming that the algorithms claimed are groundbreaking, innovative or even brilliant, the claims are ineligible because their innovation is an innovation in ineligible subject matter because they are nothing but a series of mathematical algorithms based on selected information and the presentation of the results of those algorithms. Thus, the advance lies entirely in the realm of abstract ideas, with no plausible alleged innovation in the non-abstract application realm. An advance of this nature is ineligible for patenting; and Page 10, lines 18-24 - Even if a process of collecting and analyzing information is limited to particular content, or a particular source, that limitations does not make the collection and analysis other than abstract.). As such, the applicant’s argument is not convincing and the rejections have been maintained.
The applicant argues that the claims cannot be performed in the human mind and, as such overcome the 101 rejections under Step 2a, Prong 1. The examiner strongly disagrees. It is immaterial whether or not the claims of the instant invention can be performed in the human mind. The only abstract idea category which requires the identified parts of the abstract idea be capable of being performed in the human mind are claims the recite a “Mental Process”. The instant claim limitations have not been identified as falling within the “Mental Process” category of abstract idea. Instead, the instant claims have been identified as falling within the “Certain Methods of Organizing Human Activity” category which has no such restriction. As such, the applicant’s argument is not convincing and the rejections have been maintained.
The applicant argues that the claims overcome the 35 USC 101 rejection under Step 2a, Prong 2 because they improve the functioning of a computer or another technology. The examiner disagrees. Nothing in the claims changes the normal functioning of the general-purpose computer or the datastore. They still operate in the same manner that they always have. As such, the functioning of the computer is not changed by the claims. Likewise, the claims are incapable of improving a technology. As clearly stated in MPEP 2106.05(a)(II): “However, it is important to keep in mind that an improvement in the abstract idea itself (e.g. a recited fundamental economic concept) is not an improvement in technology”. The collection, curating, scoring, and surfacing of website telemetry data are all part of the abstract idea itself which is merely applied by the general-purpose computer with generic computer components. This means it is an improvement in the abstract idea itself which is not an improvement in technology. Instead, improvements to the abstract idea itself are improvement in ineligible subject matter (see MPEP 2106.05(a); and MPEP 2106.05(a)(II); and the SAP v Investpic decision as cited in the response to argument above). As such, the applicant’s arguments are not convincing and the rejections have been maintained.
The applicant argues that the claims overcome the 35 USC 101 rejection under Step 2b because they are similar to the claims in the Bascom decision. The examiner disagrees. In the Bascom decision, the scope of the claims comprised both the client device and its functions and the remote ISP server and its functions. Thus, the scope of the claims included a specific arrangement of devices, each performing at least one significant step which resulted in an improvement that was considered “significantly more” than an abstract idea under Step 2b. In Bascom, the court found that: if all of the steps were performed by the client device, they would merely recite an abstract idea; if the remote ISP server merely performed filtering the claim would not have overcome the 101 rejections; and that is was the ability of the remote ISP server to customize the filtering for each different user of the client device that resulted in an improvement that overcame the 101 rejection under Step 2b. In contrast, the scope of the instant claim includes only a single computer with a memory. While the instant claims mention other devices such as one or more client-side computing device with GUI displays, and suggest the functions they are expected to perform, these devices are currently outside the scope of the claimed method. Every active step positively recited as being performed by the claimed method is being perform by the computer system. As such, the scope of the method is limited to the computer system itself and its functions. Therefore, it is clear that instant claims do not recite an arrangement of devices within the scope of the claim. Thus, the instant claims are in no way similar to the claims in the Bascom decision. Instead, the claims describe the order operations of an abstract idea which is merely applied using a general-purpose computer with generic computer component which is incapable of overcoming a 101 rejection under Step 2b. Under Step 2b, it is the “additional elements” of the claim, whether considered individually or as an ordered combination, that must be considered “significantly more” than the abstract idea. Neither MPEP 2106, the Bascom decision, or the USPTO Memo on Reminders suggest that the abstract idea itself, considered individually or as a whole, is capable of overcoming a 101 rejection under Step 2b. The only time any consideration is given to the abstract idea itself, when analyzing the claim under Step 2b, is when a claims scope includes two or more computing devices, and each performs at least one significant step of the abstract idea. In this case, one looks at which parts of the abstract idea are being performed by each of the known “additional elements” of the claim, because it is possible to obtain an improvement that is “significantly more” than the abstract idea, by requiring each of the different computing devices to perform different significant functions of the abstract, as the claims in the Bascom decision did. However, the instant claims only recite a single computer device which is used to merely apply the abstract idea. As such, the abstract idea itself is not even considered under Step 2b because the claims do not recite an arrangement of devices. Instead, the claim merely apply the abstract idea using a general-purpose computer which is not capable of being considered “significantly more” under Step 2. Thus, the applicant’s arguments are not convincing and the rejections have been maintained.
The applicant asserts that if it is a close call as to whether a claim is eligible, they should make a rejection when it is more likely than not (i.e., more than 50%) that the claim is ineligible. The examiner agrees that this is the process an examiner should use when determining whether or not to make a 101 rejection. However, in the instant case: the claims clearly recite and abstract idea under Step 2a, Prong 1; the “additional elements” of the claims, whether considered individually or as a whole, are incapable of transforming the abstract idea into a practical application under Step 2a, Prong 2; and the “additional elements” of the claims, whether considered individually or as an ordered combination, are incapable of being considered significantly more under Step 2b. Thus, the examiner does not consider the instant claims a close call. Thus, the applicant’s arguments are not convincing and the rejections have been maintained.
Examiner note: If the applicant desires the method claim to recite an arrangement of devices, they should amend the claims to recite something like: A method for designating and applying a scoring framework to score a website based on visitor engagement, the method comprising:
transmitting, by each of a plurality of client-side computing devices and to a computer system, a request to access a website, wherein the website is associated with a website owner;
receiving, by the computer system and from each of the plurality of client-side computing devices, the request to access the website;
transmitting, by the computer system and in response to receiving the request, website code and an include link that corresponds to the website to each of the plurality of client-side computing devices, wherein the include link is configured to import tracking code, comprising a crawl script, into the website code for the website
loading, by each of the plurality of client-side computing devices in respective sessions and in respective graphical user interface (GUI) displays, the website based on the transmitted website code and the include link;
requesting, by each of the plurality of client-side devices, the tracking code from the computer system based on the include link;
receiving, by each of the plurality of client-side devices, the tracking code from the computer system;
loading, by each of the plurality of client-side devices, the tracking code with the website;
detecting, by each of the plurality of client-side devices, when respective user perform actions with the loaded website in the respective sessions
generating, by each of the plurality of client-side devices, tracking data using the crawl script in response to detecting when the respective user perform actions within the loaded website in the respective sessions;
transmitting, by each of the plurality of client-side devices and to the computer system, the tracking data;
receiving, by the computer system and from each of the plurality of client-side devices, the tracking data;
identifying, by the computer system, events in the tracking data, wherein at least a portion of the events are related to specific document object model (DOM) elements on the web site;
transmitting, by the computer system and to a computing device of the website owner, the identified events for presentation in a GUI display at the computing device of the website owner;
displaying, by the computing device of the website owner, the identified event in the GUI display of the computing device;
obtaining, by the computing device of the website owner, input indicating (i) selection of a subset of the identified events to be tracked and (ii) a score value assignment for each event in the subset of events;
transmitting, by the computing device of the website owner and to the computer system, the input
receiving, by the computer system and from the computing device of the website owner, the input;
designating, by the computer system, a scoring framework based on the input, wherein the scoring framework comprises the selected events to be tracked and the corresponding score value assignments for the website;
applying, by the computer system, the scoring framework to the tracking data, wherein applying the scoring framework comprises: identifying, in the tracking data, presence of one or more of the selected events from the scoring framework, and assigning, to each of the identified one or more of the selected events, the corresponding score value;
generating, by the computer system, an average visitor engagement score for the website based on applying the scoring framework;
returning, by the computer system and to the computing device of the website owner, the average visitor engagement score; and
displaying, by the computing device of the website owner, the average visitor engagement score in the GUI display of the computing device of the website owner.
Amending the claims in this manner would result in the method comprising a computer system (Engagement Scoring System 102), each of a plurality of client-side computing devices (104), and a computing device of a website owner (116). Although, the tracking code and its functions would still be outside the scope of the applicant’s invention. If the applicant desires the tracking code and its functions to be within the scope of the claim the applicant would need to add additional limitations that positively recite the Tracking System 108 and its functions. While, the above amendment would recite an arrangement of devices, it may not be enough to overcome the 101 rejections. If the a plurality of client-side computing devices (104), and a computing device of a website owner (116) perform only insignificant extra-solution activity, the arrangement of devices would not be capable of resulting in an improvement that can transform the abstract idea into a practical application under Step 2a, Prong 2 and/or not be capable of being considered significantly more under Step 2b, because every significant step of the abstract idea would be being performed by the computer system (Engagement Scoring System 102). In order to overcome the 101 rejections in a manner similar to the claims of the Bascom decision, each device would need to perform at least one significant step of the abstract idea for the improvement to be rooted in the “additional elements” of the claim.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Coulthard (Top 10 Custom Event Tracking Tools in 2023, September 24, 2023, https://web.archive.org/web/20230924235858/https://www.twipla.com/en/blog/custom-event-tracking-tools, pages 1-26) which discloses the state of the art of customizable event tracking tools and their features such as Google Analytics, TWIPLA, Plerdy, Smartlook, Fullstory, Mixpanel, Adobe Analytics, Clicky, Kissmetrics, and Flurry.
Usermaven (Event-based web analytics: Everything you need to know, August 2, 2023, https://usermaven.com/blog/event-based-web-analytics, pages 1-13) which discloses an event-based analytics tool for websites in which custom events can be created and tracked.
Rudderstack (Benefits and Limitations of Google Analytics 4 (GA4), December 6, 2023, https://web.archive.org/web/20231206105054/https://www.rudderstack. com/ learn/GA4/benefits-and-limitations-of-google-analytics-4-ga4/, pages 1-11) which discloses Google Analytics 4 which is a web analytics tool that allows website owner to customize and track event-based interactions by user’s on a website and/or application, where events are highly customizable and can contain custom parameters that go beyond the simple Category, Action, Value, and Label parameters available to events in Universal Analytics.
Sweeney et al. (PGPUB 2019/0286756) which discloses tracking engagement of website elements by a user, scoring the engagement, and then dynamically changing the website code and presentation in order to increase the engagement.
Error (PGPUB: 2006/0277212) which discloses generating a user interface for summarizing tracked user data from a web analytics tool.
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 JOHN W VAN BRAMER whose telephone number is (571)272-8198. The examiner can normally be reached Monday-Thursday 5:30 am - 4 pm EST.
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, Spar Ilana 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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/John Van Bramer/Primary Examiner, Art Unit 3622
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