DETAILED ACTION
This is in reference to communication received 28 January 2026. Cancellation of claim 22 is acknowledged. Claims 1, 3, 7 – 21 and 23 – 24 are pending for examination. The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
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, 3, 7 – 21 and 23 – 24 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 7, representative of claim 1, in part is directed toward a statutory category of invention, the claim appears to be directed toward a judicial exception namely an abstract idea. Claim 7 recites invention directed to providing an interface to a user for receiving user selection wherein the interface will enable the user to make their selection of a list of options made available on the user on the interface. Subsequent to receiving user selection(s), a n-dimensional (e.g., multi-dimensional) data structure is generated to represent user selections including schedule when to display or stop-displaying the advertisements. Sales data is collected and a metric of interest is generated to determine effect of periodically displaying of advertising in sales of advertised product and/or service (e.g., determine whether the presented advertising resulted in maintaining product awareness with consumers), which, pursuant to MPEP 2106.04, is aptly categorized as a method of organizing human activity (i.e. sales and marketing).
Represented claim 1, which do recite statutory categories (machine, product of manufacture, for example), the same analysis as above applies to these claims since the method steps are the same. However, the judicial exception is not integrated into a practical application. These claims add the generic computer components (additional elements) of a system comprising a network server (claim 1), an experiment generator for A/B testing, a scheduler, a scheduler to control devices to present creative content, and a tracker to receive information, which are recited at a high-level of generality such that they amount to no more than mere instructions to apply the exception using a generic computer component. Accordingly, these additional elements do not integrate the abstract idea into a practical application because they do not impose any meaningful limits on practicing the abstract idea. The claims are directed to an abstract idea.
The claims do 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 the processor, memory, and non-transitory machine-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. The claims are not patent eligible.
When taken as an ordered combination, nothing is added that is not already present when the elements are taken individually. When viewed as a whole, the marketing activities amount to instructions applied using generic computer components.
As for dependent claims 3, 8 – 10 and 11 – 21 and 23 – 24, these claims recite limitations that further define the same abstract idea of defining information gathering device, defining data content, defining how creative content can be transmitted, defining what type of devices will be used for presenting creative content, defining that sensors will be used to collect some of the data be tracker, defining that data will be represented as n-dimensional structure and defining that a report will be made available to the user, as drafted, is a process that, under its broadest reasonable interpretation, covers performance of organizing certain methods of human activity related to advertising, marketing or sales activities or behaviors but for the recitation of generic computer components. Accordingly, the claim recites an abstract idea.
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 1, 7, 9 – 10, 13, 15, 18 – 21 and 24 are rejected under 35 U.S.C. 103 as being unpatentable over Becus et al US Publication 2019/0385191 in view of ScienceDirect published article “Data Warehousing and Online Analytical Processing” hereinafter referred to as ScienceDirect and Eller et al. US Publication 2002/0116717.
Regarding claim 7 and representative claim 1, Becus teaches A computer implemented marketing analysis system and method (Becus, The one or more graphical user interfaces (e.g., one or more webpages) including graphical elements that allow a user of the merchant interface device 160 to interface with the server 100. The one or more graphical user interfaces may include, or be part of, a display screen that displays the market insights, the consumer insights, and the campaign reporting and analytics generated and output by the electronic processor 102 in performing the applied predictive technologies program 106.) [Becus, 0032] comprising:
rendering an interface, the interface comprising:
a plurality of selectable variables comprising a geographic location;"
a plurality of selectable items of creative content;"
a plurality of selectable metrics
(Becus, The one or more graphical user interfaces ( e.g., one or more webpages) including graphical elements that allow a user of the merchant interface device 160 to interface with the server 100. The one or more graphical user interfaces may include, or be part of, a display screen that displays the market insights, the consumer insights, and the campaign reporting and analytics generated and output by the electronic processor 102 in performing the applied predictive technologies program 106.) [Becus, 0032];
receiving from the server receiving one or more inputs associated with the selectable variables, selectable creative content, and / or selectable metrics (Becus, the server 100 may receive user input, provide user output, or both by communicating with an external device ( e.g., the merchant interface device 160 or a workstation (not shown)) over a wired or wireless connection.) [Becus, 0033];
Becus does not explicitly recite generating of n-dimensional (e.g., multi-dimensional) data-structure. However, ScienceDirect teaches A data cube allows data to be modeled and viewed in multiple dimensions. It is defined by dimensions and facts. In general terms, dimensions are the perspectives or entities with respect to which an organization wants to keep records. For example, AllElectronics (an entity) may create a sales data warehouse in order to keep records of the store’s sales with respect to the dimensions time, item, branch, and location. These dimensions allow the store to keep track of things like monthly sales of items and the branches and locations at which the items were sold. Each dimension may have a table associated with it, called a dimension table, which further describes the dimension. For example, a dimension table for item may contain the attributes item name, brand, and type. Dimension tables can be specified by users or experts, or automatically generated and adjusted based on data distributions [ScienceDirect, page 136].
Therefore, at the time of filing, it would have been obvious to one of ordinary skill in the art to modify Becus by adopting teachings of ScienceDirect and construct an n-dimensional data-structure to to process and analyze high-dimensional data quickly and efficiently.
Becus in view of ScienceDirect teaches system and method further comprising:
generating an n-dimensional data structure, wherein the n-dimensional data structure comprises a hyper-cuboid of repeated, alternating A/B tests to conduct, wherein the n-dimensional data structure specifies an A/B testing schedule (as responded to above) [ScienceDirect, page 136], and wherein each selectable variable of the plurality of selectable variable comprises:
an audio and / or visual device; and
an information gathering device;
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based on the n-dimensional data structure, identifying data associated with the selected creative content from a database (ScienceDirect, The dice operation defines a subcube by performing a selection on two or more dimensions. Figure 4.12 shows a dice operation on the central cube based on the following selection criteria that involve three dimensions: (location “Toronto” or “Vancouver”) and (time “Q1” or “Q2”) and (item “home entertainment” or “computer”).) [ScienceDirect, page 148];
Becus in view of ScienceDirect does not explicitly teach presenting the creative content according to schedule in the data structure. However, Becus teaches when you (e.g., advertiser) submit your campaign, we will review the campaign details and schedule the campaign [Becus, Fig. 11 and associated disclosure]. Eller teaches system and method wherein an advertiser can upload advertising data to a server operating a particular billboard via a remote computer. Once approved for content, the advertising data can then be transmitted to the billboard for display at a time and duration selected by the advertiser [Eller, 0005]. Eller further teaches the ad is scheduled by the billboard provider for downloading to the selected billboard system for display at the desired time and duration [Eller, 0029].
Therefore, at the time of filing, it would have been obvious to one of ordinary skill in the art to modify Becus in view of ScienceDirect by adopting teachings of Eller for permitting multiple ads to be displayed on an electronic billboard at any desired time and frequency, and make the transportation of the ads to a particular billboard using any type of electronic means.
Becus in view of ScienceDirect and Eller teaches system and method further comprising:
causing, the audio and / or visual device to present the creative content according to the n-dimensional data structure (Eller, the ad is scheduled by the billboard provider for downloading to the selected billboard system for display at the desired time and duration) [Eller, 0029];
receiving information from the information gathering device (e.g., POS) associated with each selectable variable (Becus, Performance Marketing is the only tool that tells you full story behind your campaign success by tracking real sales (in-store and online) [Becus, Fig. 6 and associated disclosure];
determining a metric of interest over time based on the received information; recording the metric of interest over time in a results database (Becus, Performance Marketing is the only tool that tells you full story behind your campaign success by tracking real sales (in-store and online) [Becus, Fig. 6 and associated disclosure];
accessing the A/B testing schedule specified by the n-dimensional data structure; generating a report comprising a statistical significance of an impact of at least one of: a selected variable of the plurality of selectable variables, or the selected creative content of the plurality of selectable items of creative content on a metric of the plurality of selectable metrics (Becus, The one or more graphical user interfaces ( e.g., one or more webpages) including graphical elements that allow a user of the merchant interface device 160 to interface with the server 100. The one or more graphical user interfaces may include, or be part of, a display screen that displays the market insights, the consumer insights, and the campaign reporting and analytics generated and output by the electronic processor 102 in performing the applied predictive technologies program 106.) [Becus, 0032]; and
causing display of the report (Becus, generate and output market insights, consumer insights, data visualization ( e.g., operation reporting and analytics, hereinafter referred to as "campaign reporting and analytics"), and operation recommendations (hereinafter referred to as "campaign recommendations").) [Becus, 0022].
Regarding claim 9 and representative claim 10, as combined and under the same rationale as above, Becus in view of ScienceDirect and Eller teaches system and method, wherein the creative content is either transmitted electronically to the audio/display device at the selectable locations or preloaded on a device located at the location (Eller, an advertiser can upload advertising data to a server operating a particular billboard via a remote computer. Once approved for content, the advertising data can then be transmitted to the billboard for display at a time and duration selected by the advertiser) [Eller, 0005].
Regarding claim 11, as combined and under the same rationale as above, Becus in view of ScienceDirect and Eller teaches system and method, wherein the selectable variables comprise one or more of time, geographic location and product [Becus, 0060, Fig.11 and associated disclosure].
Regarding claim 13, as combined and under the same rationale as above, Becus in view of ScienceDirect and Eller teaches system and method, wherein the tracker receives point of sale data (Becus, Performance Marketing is the only tool that tells you full story behind your campaign success by tracking real sales (in-store and online). Becus further teaches The campaign snapshot subsection 1404 includes total campaign sales, amount of budget invested in campaign (broken down between customer offer and campaign cost), and the total return on investment) [Becus, 0075, Fig. 6 and associated disclosure].
Regarding claim 15, as combined and under the same rationale as above, Becus in view of ScienceDirect and Eller teaches system and method, wherein the point-of-sale-metric comprises one or more of sales volume, sales variance, revenue, basket size, number of customers or customer retention (Becus further teaches The campaign snapshot subsection 1404 includes total campaign sales, amount of budget invested in campaign (broken down between customer offer and campaign cost), and the total return on investment) [Becus, 0075, Fig. 6, 8 and associated disclosure].
Regarding claim 18, as combined and under the same rationale as above, Becus in view of ScienceDirect and Eller teaches system and method, further comprising a reporter to make the report available to a user (Becus, The one or more graphical user interfaces ( e.g., one or more webpages) including graphical elements that allow a user of the merchant interface device 160 to interface with the server 100. The one or more graphical user interfaces may include, or be part of, a display screen that displays the market insights, the consumer insights, and the campaign reporting and analytics generated and output by the electronic processor 102 in performing the applied predictive technologies program 106.) [Becus, 0032].
Regarding claim 19, as combined and under the same rationale as above, Becus in view of ScienceDirect and Eller teaches system and method, wherein the reporter makes the report available to a user via one or more of a web interface, an email, or short message/messaging service (SMS) (Becus, The one or more graphical user interfaces ( e.g., one or more webpages) including graphical elements that allow a user of the merchant interface device 160 to interface with the server 100. The one or more graphical user interfaces may include, or be part of, a display screen that displays the market insights, the consumer insights, and the campaign reporting and analytics generated and output by the electronic processor 102 in performing the applied predictive technologies program 106.) [Becus, 0032].
Regarding claim 20, as combined and under the same rationale as above, Becus in view of ScienceDirect and Eller teaches system and method, wherein the plurality of selectable items of creative content comprise one or more of audio advertisement(s), visual advertisement(s), and music (Eller, Electronic billboards, such as the ones illustrated in FIGS. 2A and 2B, have the capability of displaying still or video images in a manner similar to a television or a computer display.) [Eller, 0022].
Regarding claim 21, as combined and under the same rationale as above, Becus in view of ScienceDirect and Eller teaches system and method, where the plurality of selectable metrics comprise one or more of sales volume, sales variance, revenue, basket size, number of customers and customer retention (Becus, Performance Marketing is the only tool that tells you full story behind your campaign success by tracking real sales (in-store and online) [Becus, Fig. 6, 8 and associated disclosure].
Regarding claim 24, as combined and under the same rationale as above, Becus in view of ScienceDirect and Eller teaches system and method, wherein the schedule receives hyper-cuboid data [ScienceDirect, see at least Fig. 4.5 on page 139] and retrieves data associated with the selected creative content from a database of music and audio ads, the scheduler in communication with the audio and / or visual devices so as to control such device(s) to present the creative content (Eller, Electronic billboards, such as the ones illustrated in FIGS. 2A and 2B, have the capability of displaying still or video images in a manner similar to a television or a computer display.) [Eller, 0022] according to the hyper-cuboid data wherein, if a cell for specific time, store and/or product contains the value is true the creative is played/displayed, otherwise it is not (Eller, once approved, the ad is scheduled by the billboard provider for downloading to the selected billboard system for display at the desired time and duration.) [Eller, 0028].
Claims 3, 8, 12, 14 and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Becus et al US Publication 2019/0385191 in view of ScienceDirect published article “Data Warehousing and Online Analytical Processing” hereinafter referred to as ScienceDirect and Eller et al. US Publication 2002/0116717 and Silva et al. US Publication 2018/0365734.
Regarding claim 3, as combined and under the same rationale as above, Becus in view of ScienceDirect and Eller teaches system and method, wherein the information gathering device is comprises:
one or more of a point-of-sale system to monitor a point-of-sale-metric (Becus, Performance Marketing is the only tool that tells you full story behind your campaign success by tracking real sales (in-store and online) [Becus, Fig. 6 and associated disclosure]; and
Becus in view of ScienceDirect and Eller does not teach using sensors to measure proxy metrics. However, Silva teaches message system with virtual sensors and telemetery. Silva teaches The camera may capture the age, gender, and the dwell time of the people who appear to be actually looking at the advertisements, and The BLUETOOTH and WI-FI scanners may capture the number of unique radio signals from people near the vending [Silva, 0030].
Therefore, at the time of filing, it would have been obvious to one of ordinary skill in the art to modify Becus in view of ScienceDirect and Eller by adopting teachings of Silva and use anonymous sensors and highly sophisticated computer algorithms to accurately count the potential and actual audiences for visual messages and merchandising.
as combined and under the same rationale as above, Becus in view of ScienceDirect, Eller and Silva teaches system and method further comprising:
a sensor to measure one or more proxy-metrics [Silva, 0030].
Regarding claim 12, as combined and under the same rationale as above, Becus in view of ScienceDirect, Eller and Silva teaches system and method, wherein each selectable geographic location comprises: an audio and / or visual device; a point of sale system to monitor a point-of-sale-metric; and one or more sensors (Silva, some embodiments may utilize sensors, virtual sensors, wireless sensors, people counting technology, and/or facial detection to collect data at a point of sale (POS) location) [Silva, 0026].
Regarding claim 8, The method according to claim 7, wherein the information gathering device comprises one or more of point of sale systems to monitor a point-of-sale-metric, one or more sensors to measure one or more proxy-metrics, or one or more point of sale systems to monitor a point-of-sale-metric and one or more sensors to measure one or more proxy-metrics (Silva, some embodiments may utilize sensors, virtual sensors, wireless sensors, people counting technology, and/or facial detection to collect data at a point of sale (POS) location) [Silva, 0026].
Regarding claim 14, as combined and under the same rationale as above, Becus in view of ScienceDirect and Eller teaches system and method, wherein the tracker receives sensor data (Silva, some embodiments may utilize sensors, virtual sensors, wireless sensors, people counting technology, and/or facial detection to collect data at a point of sale (POS) location) [Silva, 0026].
Regarding claim 16, as combined and under the same rationale as above, Becus in view of ScienceDirect and Eller teaches system and method, wherein the sensors measure one or more proxy-metrics such as in-store noise or foot-traffic (Silva, the camera may capture the age, gender, and the dwell time of the people who appear to be actually looking at the advertisements , and The BLUETOOTH and WI-FI scanners may capture the number of unique radio signals from people near the vending) [Silva, 0030].
Claims 17 and 23 are rejected under 35 U.S.C. 103 as being unpatentable over Becus et al US Publication 2019/030191 in view of ScienceDirect published article “Data Warehousing and Online Analytical Processing” hereinafter referred to as ScienceDirect and Eller et al. US Publication 2002/0116717 and Optimizely published article “What is A/B testing?” hereinafter referred to as Optimizely.
Regarding claim 17, Becus in view of ScienceDirect and Eller does not teach A/B testing. However, Optimizely teaches A/B-testing (also known as split-testing or bucket-testing) is a method of comparing two versions of a webpage or app against each other to determine which one performs better. A/B testing is essentially an experiment where two or more variants of a page are shown to users at random, and statistical analysis is used to determine which variation performs better for a given conversion goal [Optimizely, page 1].
Therefore, at the time of filing, it would have been obvious to one of ordinary skill in the art to modify Becus in view of ScienceDirect and Eller by adopting teachings of Optimizely and perform A/B testing to take the guesswork and enable data-informed decision.
as combined and under the same rationale as above, Becus in view of ScienceDirect, Eller and Optimizely teaches system and method, further comprising an evaluator servicer to retrieve the results stored in the results database and an A/B testing schedule specified by the data-structure [Optimizely, page 1] and compute a report (Becus, The one or more graphical user interfaces ( e.g., one or more webpages) including graphical elements that allow a user of the merchant interface device 160 to interface with the server 100. The one or more graphical user interfaces may include, or be part of, a display screen that displays the market insights, the consumer insights, and the campaign reporting and analytics generated and output by the electronic processor 102 in performing the applied predictive technologies program 106.) [Becus, 0032].
Regarding claim 23, as combined and under the same rationale as above, Becus in view of ScienceDirect, Eller and Optimizely teaches system and method, wherein an A/B test is the playing or not-playing of selected creative content at a selected time and/or location for a given product and the axes of the hyper-cuboid are the variables selected by the user, such as stores, weeks and/or products and wherein the cells of the hyper-cuboid comprise one or more of a list of advertisements to play or boolean flags, comprising True or False, which indicate whether an item of creative content is played/displayed or not for a specific week, store and/or product (Optimizely, A/B-testing (also known as split-testing or bucket-testing) is a method of comparing two versions of a webpage or app against each other to determine which one performs better. A/B testing is essentially an experiment where two or more variants of a page are shown to users at random, and statistical analysis is used to determine which variation performs better for a given conversion goal [Optimizely, page 1].
Response to Arguments
Applicant's argument that pending claimed amended invention is eligible for patent under 35 USC 101 because amended claimed invention are directed to a practical application and do not recite an abstract idea, and, they are significantly more than an abstract idea is acknowledged and considered.
However upon further review, it is deemed that the amended invention as currently claimed is not eligible for patent under 35 USC 101 and have been responded to in Rejection Under 35.USC.101 section.
Applicant's argument that pending claimed amended invention is eligible for patent because cited prior art does not teach or suggest at least “generating a report” and “causing display of the report, is acknowledged and considered.
However, applicants arguments for the amended claimed invention have been responded to in Rejection under 35.USC.103 section.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Cleve Moler’s published blog “Hypercubes and Graphs”
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 Naresh Vig whose telephone number is (571)272-6810. The examiner can normally be reached Mon-Fri 06:30a - 04:00p.
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/NARESH VIG/Primary Examiner, Art Unit 3622
April 23, 2026
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