DETAILED ACTION
The following is a Final Office action. In response to Non-Final communications received 12/18/2025, Applicant, on 2/26/2026, amended Claims 1, 5-6, 9, 12, 15-16, and 18, cancelled Claims 4 and 11, and added Claims 20-22. Claims 1-3, 5-10, and 12-22 are pending in this action, have been considered in full, and are rejected below.
Response to Arguments
Arguments regarding 35 USC §101 Alice – Applicant asserts that the claims are not directed at an abstract idea, by stating that they are not directed towards organizing human activity, and that they cannot be performed in a human mind, by reciting the limitations are computer-implemented. Examiner disagrees as the claims recite clear abstractions of both mental processes and certain methods of organizing human activity as per the rejection below. This is stated clearly by the office action, and receiving metrics and using a model to analyze the data for modeling is clearly organizing human activity. Further, this is a mere assertion that the claims are eligible under 101. Applicant does not state how or why these would not be considered abstract under Prong 1 other than saying this could not be practically done in the human mind as this could be done with a pen and paper.
Applicant states that the claims are integrated because the claims are similar to that of Example 37, arranging icons, and reciting that the claims “use the results of a machine-generated engagement model to control how later transmissions are actually performed”, “a computer-implemented optimization technique for controlling data transmission in successive batches using a model that separates intrinsic from extrinsic factors and then uses only isolated intrinsic factors to adjust later allocations”, and “requiring that future transmission proportions be adjusted using isolated intrinsic factors from a stored engagement model, rath than using undifferentiated performance data”. Examiner disagrees as first Example 37 has nothing to do with the fact patterns of the current Application. Further, the utilization of a computer does not make a claim eligible, and other than the recited use of the computer here, the optimization and optimization of factors are all part of the abstraction. The additional elements of these claims are recited at a high-level of generality (i.e., as a generic processor performing a generic computer function of storing, retrieving, sending, and processing data) such that they amount to no more than mere instructions to apply the exception using generic computer components. This is utilization of current technologies, “Applying It”, similar to that of Alice, and does not make these limitations eligible under 101, as there is no improvement to any additional element, alone or in combination. Any inventive concept would be contained wholly within the abstraction.
Applicant asserts that the additional elements and the ordered combination are a specific implementation of an iterative machine-controlled process, and that the claims are not conventional or routine. Examiner disagrees as per Applicant’s Specification there are no details of any of the additional elements, alone or in combination. The Specification shows this figure:
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Which is the only information about the computer or details that can be found in the Specification. Thus, these are highly generic and not a specific implementation of a computer.
Applicant argues that the Office Action states that the analysis is inconsistent with the claim language and that generating an engagement model along with the adjusting the second-batch performance factors and use of tokens is impossible to do in the mind and thus when claimed as a whole is eligible. Examiner disagrees as the utilization of a computer does not make a claim eligible, and the claim limitations were taken both individually and as a whole in the rejection below. The additional elements of these claims are recited at a high-level of generality (i.e., as a generic processor performing a generic computer function of storing, retrieving, sending, and processing data) such that they amount to no more than mere instructions to apply the exception using generic computer components. This is utilization of current technologies, “Applying It”, similar to that of Alice, and does not make these limitations eligible under 101, as there is no improvement to any additional element, alone or in combination. Any inventive concept would be contained wholly within the abstraction.
Applicant asserts the claims are integrated into a practical application as the result of the model-based analysis is not merely displayed, reported, or recommended but is used to control the composition and percentages of a later batch of transmitted data sent to target user computers. Examiner disagrees as there is no control of a later batch of transmitted data sent to target user computers as this is intended use, not positively claimed, and given little patentable weight, but even if it were claimed, send less information or performing something less does not necessarily make the claim eligible under 101.
Applicant has amended each of the dependent claims into independents and argued each one individually, and these are all originally part of the 101 analysis and have now been amended and argued individually. In Claims 1, 2, 6, 9, 12, 15, 16, and 18, Applicant argues that the claims are not a mental process and are not organizing human activity, and states that each of these are allowable over the art and thus should be eligible over 101. Applicant also specifically writes each of the additional portions from the allowable material and states that these are technical processes and thus the claim should be eligible. Examiner disagrees as “wherein the intrinsic parameters comprise a performance ratio between a content variant and the control for each variant”, “wherein the extrinsic parameters comprise a performance of the control variant for each batch of the first ordered sequence of distribution batches”, “wherein the intrinsic and extrinsic parameters are determined by an optimization algorithm selected from the group consisting of: least squares, gradient descent, and combinations thereof”, “wherein the repeated random sampling is used to bootstrap confidence intervals, quantify uncertainty and calculate champion probabilities”, “wherein each batch comprises a percentage of the total number of the plurality of user computers or is based on time windows of when content requests are received on a given day”, “wherein for each batch, the content variants in each of the first and second ordered sequences of distribution batches have a fixed proportion of deliveries”, and “wherein the plurality of content variants comprises an email subject line, and the performance metric is selected from the group consisting of: an open rate for the email, where the open rate is determined by the number of emails opened divided by the number of emails sent, a click rate for the email, and combinations thereof” are all part of the abstraction, and these are not part of a technological improvement. For instance, determining parameters from an optimization algorithm such as least squares can be performed in the mind, is part of one of the enumerated categories of Certain Methods of Organizing Human Activity, and can even be though of as a Mathematical Concept. Again, the claims recite multiple abstract ideas, which are not practically integrated as the additional elements of these claims are recited at a high-level of generality (i.e., as a generic processor performing a generic computer function of storing, retrieving, sending, and processing data) such that they amount to no more than mere instructions to apply the exception using generic computer components. This is utilization of current technologies, “Applying It”, similar to that of Alice, and does not make these limitations eligible under 101, as there is no improvement to any additional element, alone or in combination. Any inventive concept would be contained wholly within the abstraction.
Therefore, the arguments are non-persuasive, the Claims are ineligible as there is no inventive concept, and the rejection of the Claims and their dependents are maintained under 35 USC 101.
Arguments regarding 35 USC §103 – The rejection is hereby removed in light of Applicant’s amendments, for the reasons found in the “Allowable Subject Matter” section found below.
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.
Alice – Claims 1-3, 5-10, and 12-22 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
Claims 1, 6, 9, 12, 15, 16, and 18 recite the limitations of determining a plurality of user computers to receive the data (Analyzing and Collecting the Information, an observation and evaluation, a Mental Process; Commercial Interaction, i.e. Managing content advertisements; a Certain Method of Organizing Human Activity), selecting a plurality of content variants, which are saved (Analyzing the Information, an evaluation, a Mental Process; Commercial Interaction, i.e. Managing content advertisements; a Certain Method of Organizing Human Activity), selecting one of the generated content variants as a control variant (Analyzing the Information, an evaluation, a Mental Process; Commercial Interaction, i.e. Managing content advertisements; a Certain Method of Organizing Human Activity), generating a first batch of data wherein each content variant of the first batch is transmitted to a select percentage of users (Analyzing the Information, an evaluation, a Mental Process; Commercial Interaction, i.e. Managing content advertisements; a Certain Method of Organizing Human Activity), receiving with the system computer performance metrics for each of the content variants in the first batch of data (Collecting Information, an observation, a Mental Process; Commercial Interaction, i.e. Managing content advertisements; a Certain Method of Organizing Human Activity), generating an engagement model comprising intrinsic factors and extrinsic factors and saving the engagement model on the storage (Analyzing the Information, an evaluation, a Mental Process; Commercial Interaction, i.e. Managing content advertisements; a Certain Method of Organizing Human Activity), quantifying the intrinsic factors and extrinsic factors based on the performance metrics for each of the content variants in the first batch of data (Analyzing the Information, an evaluation, a Mental Process; Commercial Interaction, i.e. Managing content advertisements; a Certain Method of Organizing Human Activity), adjusting proportions of the content variants for inclusion in a second batch of data based solely on isolated intrinsic factors wherein each content variant of the second batch is transmitted to a select percentage of target user computers based on the adjusted proportions (Analyzing and Transmitting the Information, an evaluation and judgment, a Mental Process; Commercial Interaction, i.e. Managing content/advertisements; a Certain Method of Organizing Human Activity), which under their broadest reasonable interpretation, covers performance of the limitation in the mind for the purposes of managing work conversation, but for the recitation of generic computer components.
Additionally, Claim 1 recites the limitations of wherein the intrinsic parameters comprise a performance ratio between a content variant and the control for each variant (Analyzing the Information, an evaluation, a Mental Process; Commercial Interaction, i.e. Managing content/advertisements; a Certain Method of Organizing Human Activity), Claim 6 recites the limitations of wherein the extrinsic parameters comprise a performance of the control variant for each batch of the first ordered sequence of distribution batches (Analyzing the Information, an evaluation, a Mental Process; Commercial Interaction, i.e. Managing content/advertisements; a Certain Method of Organizing Human Activity), Claim 9 recites the limitations of wherein the intrinsic and extrinsic parameters are determined by an optimization algorithm selected from the group consisting of: least squares, gradient descent, and combinations thereof (Analyzing the Information, an evaluation, a Mental Process; Commercial Interaction, i.e. Managing content/advertisements; a Certain Method of Organizing Human Activity), Claim 12 recites the limitations of wherein the repeated random sampling is used to bootstrap confidence intervals, quantify uncertainty and calculate champion probabilities (Analyzing the Information, an evaluation, a Mental Process; Commercial Interaction, i.e. Managing content/advertisements; a Certain Method of Organizing Human Activity), Claim 15 recites the limitations of wherein each batch comprises a percentage of the total number of the plurality of user computers or is based on time windows of when content requests are received on a given day (Analyzing the Information, an evaluation, a Mental Process; Commercial Interaction, i.e. Managing content/advertisements; a Certain Method of Organizing Human Activity), Claim 16 recites the limitations of wherein for each batch, the content variants in each of the first and second ordered sequences of distribution batches have a fixed proportion of deliveries (Analyzing the Information, an evaluation, a Mental Process; Commercial Interaction, i.e. Managing content/advertisements; a Certain Method of Organizing Human Activity), and Claim 18 recites the limitations of wherein the plurality of content variants comprises an email subject line, and the performance metric is selected from the group consisting of: an open rate for the email, where the open rate is determined by the number of emails opened divided by the number of emails sent, a click rate for the email, and combinations thereof. (Analyzing the Information, an evaluation, a Mental Process; Commercial Interaction, i.e. Managing content/advertisements; a Certain Method of Organizing Human Activity), which under their broadest reasonable interpretation, covers performance of the limitation in the mind for the purposes of managing work conversation, but for the recitation of generic computer components. That is, other than reciting a system computer, a network to a plurality of user computers, and a storage, nothing in the claim element precludes the step from practically being performed or read into the mind for the purposes of a Commercial Interaction, i.e. Managing content advertisements. For example, selecting one of the generated content variants as a control variant encompasses a supervisor or data analyst looking at content and selecting one or a type or a style of content to be the control for a process, an observation, evaluation, and judgment. If a claim limitation, under its broadest reasonable interpretation, covers performance of the limitation in the mind but for the recitation of generic computer components, then it falls within the “Mental Processes” grouping of abstract ideas, an observation, evaluation, and judgment. Further, as described above, the claims recite limitations for Commercial Interaction, i.e. Managing content advertisements, a “Certain Method of Organizing Human Activity”. Accordingly, the claim recites an abstract idea.
This judicial exception is not integrated into a practical application. In particular, the claim recites the above stated additional elements to perform the abstract limitations as above. The system computer, network, user computers, and storage are recited at a high-level of generality (i.e., as a generic software/module performing a generic computer function of storing, retrieving, sending, and processing data) such that they amount to no more than mere instructions to apply the exception using generic computer components. Even if taken as an additional element, the receiving, storing (although not positively claimed), and transmission steps above are insignificant extra-solution activity as these are receiving, storing, and transmitting data as per the MPEP 2106.05(d). 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 claim is directed to an abstract idea.
The claim does not include additional elements that are sufficient to amount to significantly more than the judicial exception, when considered both individually and as an ordered combination. As discussed above with respect to integration of the abstract idea into a practical application, the additional element being used to perform the abstract limitations stated above amount to no more than mere instructions to apply the exception using generic computer components. Mere instructions to apply an exception using generic computer components cannot provide an inventive concept. The claim is not patent eligible. Applicant’s Specification is silent to the makeup of the computer or storage and is best shown here:
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Which states that any type of user computer can be used, with storage and connected to a network, such as any personal computer, laptop, mobile phone, tablet, etc., to perform the abstract limitations, and from this interpretation, one would reasonably deduce the aforementioned steps are all functions that can be done on generic components, and thus application of an abstract idea on a generic computer, as per the Alice decision and not requiring further analysis under Berkheimer, but for edification the Applicant’s specification has been used as above satisfying any such requirement. This is “Applying It” by utilizing current technologies. For the receiving, storing, and transmitting steps that were considered extra-solution activity in Step 2A above, if they were to be considered additional elements, they have been re-evaluated in Step 2B and determined to be well-understood, routine, conventional, activity in the field. The background does not provide any indication that the additional elements, such as the system computer, network, etc., nor the receiving, storing, and transmitting steps as above, are anything other than a generic, and the MPEP Section 2106.05(d) indicates that mere collection or receipt, storing, or transmission of data is a well‐understood, routine, and conventional function when it is claimed in a merely generic manner (as it is here). For these reasons, there is no inventive concept. The claim is not patent eligible.
Claims 2-3, 5, 7-8, 10, 13-14, 17, and 19 contain the identified abstract ideas, further narrowing them, with no new additional element to be considered as part of a practical application or under prong 2 of the Alice analysis of the MPEP, thus not integrated into a practical application, nor are they significantly more for the same reasons and rationale as above.
New Claims 20-22 contain the identified abstract ideas, further narrowing them such as by wherein the step of quantifying the intrinsic factors and extrinsic factors includes defining an objective function with the system computer and the parameter values are determined by minimizing the objective function using an optimization algorithm, wherein content variants are excluded from the second batch based solely on isolated intrinsic factors, wherein machine learning utilizes the intrinsic parameters as machine learning training data., with no new additional element to be considered as part of a practical application or under prong 2 of the Alice analysis of the MPEP, thus not integrated into a practical application, nor are they significantly more for the same reasons and rationale as above.
After considering all claim elements, both individually and in combination, Examiner has determined that the claims are directed to the above abstract ideas and do not amount to significantly more. Therefore, the claims and dependent claims are rejected under 35 U.S.C. 101 as being directed to non-statutory subject matter. See Alice Corporation Pty. Ltd. v. CLS Bank International, No. 13–298.
Allowable Subject Matter
Claims 1-3, 5-10, and 12-22 have overcome the prior art and would be allowable if amended to overcome the 35 USC 101 rejections.
The closest prior art of record are DeCharms (U.S. Publication No. 2025/009,4690 with priority to 9/16/2024 and 9/18/2023), Montero (U.S. Publication No. 2024/019,3637), and Patel (U.S. Publication No. 2016/006,6006). DeCharms, a selective visual display system and method, teaches a method for optimizing the transmission of data transmitted from a system computer via a network to a plurality of user computers, determining a plurality of user computers to receive the data, selecting a plurality of content variants, which are saved on the system computer, generating a first batch of data with the system computer, wherein each content variant of the first batch is transmitted to a select percentage of the plurality of user computers, receiving with the system computer performance metrics for each of the content variants in the first batch of data, the system computer generating an engagement model comprising intrinsic factors and extrinsic factors and saving the engagement model on the storage, quantifying the intrinsic factors and extrinsic factors based on the performance metrics for each of the content variants in the first batch of data, adjusting proportions of the content variants for inclusion in a second batch of data based solely on isolated intrinsic factors, wherein each content variant of the second batch is transmitted to a select percentage of target user computers based on the adjusted proportions, and use of and selecting generated content variants as above, but it does not explicitly state selecting one of the generated content variants as a control variant, nor does it teach an intrinsic variable. Montero, a system and method for intelligent promotion design with promotion scoring, teaches use of determined control variables, and also teaches intrinsic variables which are used to determine performance metrics. Neither Pinchuk nor Heyrani explicitly teaches gives priority to events. Cheung, a system and method to prioritize and schedule notifications with user behavior and contextual data analysis, teaches determining a priority of events and scheduling of notifications of behavior information. Neither Pinchuk nor Heyrani explicitly teaches using a loss function to calculate a value. Patel, an apparatus and method for multimedia coordination, teaches use of return on investment data, use of intrinsic data of consumers, transmitting data on advertising servers for either direct to a campaign or otherwise, and sending derived ROI data to servers for analysis, but not the specific manner of the intrinsic parameter comprising a performance ratio between a content variant and the control of each variant, wherein the extrinsic parameters comprise a performance of the control variant for each batch of the first ordered sequence of distribution batches, wherein the intrinsic and extrinsic parameters are determined by an optimization algorithm selected , wherein the repeated random sampling is used to bootstrap confidence intervals, quantify uncertainty and calculate champion probabilities, wherein each batch comprises a percentage of the total number of the plurality of user computers or is based on time windows of when content requests are received on a given day, wherein for each batch, the content variants in each of the first and second ordered sequences of distribution batches have a fixed proportion of deliveries, or wherein the plurality of content variants comprises an email subject line, and the performance metric is selected from the group consisting of: an open rate for the email, where the open rate is determined by the number of emails opened divided by the number of emails sent, a click rate for the email, and combinations thereof. None of the prior art explicitly teaches this the specific manner of the intrinsic parameter comprising a performance ratio between a content variant and the control of each variant, wherein the extrinsic parameters comprise a performance of the control variant for each batch of the first ordered sequence of distribution batches, wherein the intrinsic and extrinsic parameters are determined by an optimization algorithm selected , wherein the repeated random sampling is used to bootstrap confidence intervals, quantify uncertainty and calculate champion probabilities, wherein each batch comprises a percentage of the total number of the plurality of user computers or is based on time windows of when content requests are received on a given day, wherein for each batch, the content variants in each of the first and second ordered sequences of distribution batches have a fixed proportion of deliveries, or wherein the plurality of content variants comprises an email subject line, and the performance metric is selected from the group consisting of: an open rate for the email, where the open rate is determined by the number of emails opened divided by the number of emails sent, a click rate for the email, and combinations thereof, along with the other limitations of the claims, and these are the reasons which adequately reflect the Examiner's opinion as to why Claims 1, 6, 9, 12, 15-16, 18, and their dependents, are allowable over the prior art of record, and are objected to as provided above.
Conclusion
The prior art made of record is considered pertinent to applicant's disclosure.
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APPARATUS AND METHODS FOR MULTIMEDIA COORDINATION
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 JOSEPH M WAESCO whose telephone number is (571)272-9913. The examiner can normally be reached on 8 AM - 5 PM M-F.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, BETH BOSWELL can be reached on (571) 272-6737. The fax phone number for the organization where this application or proceeding is assigned is 571-273-1348.
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/JOSEPH M WAESCO/Primary Examiner, Art Unit 3625B 6/3/2026
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