DETAILED ACTION
Status of the Application
In response filed on January 26, 2026, the Applicant amended claims 1-8, 10-18, and 20-25. Claims 1-25 are pending and currently under consideration for patentability.
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 Amendments and Arguments
v Applicant has amended the claims to correct informalities identified in the previous action. These objections have been withdrawn accordingly.
v Amendments to the Drawings and Specification were received on January 26, 2026. These amendments are acceptable.
v Applicant’s arguments, with respect to the rejection of claims 1-25 under 35 U.S.C. 101 have been fully considered and are not persuasive. The rejections of claims 1-25 under 35 U.S.C. 101 have been maintained accordingly.
Applicant specifically argues that
1) “the specification defines a technological solution to a technological problem… The technological problem is defined in the specification as filed and as amended in the first paragraph of the text describing Figure 11: "Optimal design for such testing is complicated by the enormous number of permutations of comparable places in any significant geographical area. This is further complicated by audience movement between locations." See page 14, lines 3-6 of the present application. The technological nature of the solution is further supported by the specification as filed and as amended in the last paragraph of the text for Figure 14: "By clustering 904 and then allocating 905, permutations are reduced so that a computer system such as the one shown in Figure 4 can be used to perform allocation." See page 18, lines 1-13-15 of the present application. To the skilled practitioner, this unambiguously defines a technological solution to a well-known class of problems in data analysis, which is that certain solutions may be impractical due to the amount of processing required. Thus, in order to provide a computer system capable of being operated in certain advantageous ways, it is necessary to define the instructions that are executed by it. The specification clearly describes methods, apparatuses and non-volatile computer-readable media that make a general-purpose computer - such as a cloud server - operate more efficiently, at reduced cost, power consumption, complexity and environmental impact… Therefore, under Enfish, independent amended claim 1 does not recite an abstract idea. The same argument applies to independent amended claims 11 and 21, and all dependent claims… clearly describe a process designed to avoid combinatorial explosion, which would otherwise render a general-purpose computer - such as a cloud server - either incapable of performing the desired process, or, at best, requiring more time or increased numbers or instances of cloud servers to achieve a comparable result… : "By clustering 904 and then allocating 905, permutations are reduced so that a computer system such as the one shown in Figure 4 can be used to perform allocation."
Examiner respectfully disagrees with Applicant’s first argument.
First, the Examiner disagrees that the claims are directed to a solution to a technological or technology-based problem. Nor are they directed to an improvement to computer functionality/capabilities, an improvement to a computer-related technology or technological environment. The alleged problem being addressed is that of “combinatorial explosion”, which refers to the “enormous number of permutations of comparable places in any significant geographical area” ([0066]) that “would arise from an attempt to decrease the size of geographical entities to improve the accuracy of a statistical analysis used to determine audience uplift, thereby increasing the number of geographical entities… so that A/B testing may be more accurately performed” (from Applicant’s arguments). However, the problem of having a large number of possible permutations (i.e., possible ways to match/pair geographical regions to create test and control groups having similar characteristics) when designing or conducting an advertising A/B lift test is not a technological problem. The underlying process is designing and/or conducting an advertising A/B lift to measure marketing effectiveness. This is not a technological process, even though computers may be used to implement this process. A/B lift testing existed prior to the rise of modern computing technology, the analysis/process encompassed by the instant invention is one that a human could be capable of performing (albeit, less efficiently) without computers, and perceived relative inaccuracy of these lift tests (e.g., overcome by curating the control and test groups in different ways, such as by increasing granularity by decreasing geographical region size and increasing the number of geographical regions involved in the test) is a subjective business problem. The problem of having an “enormous number of permutations” is i) a problem of Applicant’s own design and ii) is a statistical/mathematical problem rather than a technical problem. The problem is only a problem because advertiser’s desire to increase the accuracy of their statistical analysis (e.g., more accurate measure of advertisement uplift). The problem only affects computers (e.g., would require a lot of computer resources to execute) due to Applicant’s desire to use computers to perform the analysis. Problems in data analysis do not become problems in technology merely because technology is selected for use to perform the analysis. As such, this is not a technical problem, even if computers may be used to perform the statistical analysis. This is in contrast to the types of technological or technology-based problems discussed in the MPEP. Enfish deals with improvements over conventional logical models for computer databases. Computer database design is clearly a computer-related technology, and the invention in Enfish was directed to an improved computer database logical model that functioned differently than conventional computer dataset structures and that resulted in increased flexibility, faster search times, and smaller memory requirements. Logical models for computer databases are computer-related technology, whereas advertising A/B lifts (and/or matching/pairing geographical regions into control/target groups) are not. Relatedly, problems with flexibility, search times, and memory requirements associated with local models for computer databases are technological or technology-based problems, whereas having a large number of possible permutations (i.e., possible ways to match/pair geographical regions) when designing or conducting an advertising A/B lift test because there is a desire to use a high number of small geographical regions is not. McRO is concerned with improvements in computer-specific animation techniques. Computer-specific animation techniques is computer-related technology, whereas advertising A/B lifts are not. In Ex Parte Desjardins, the claimed invention is directed to an improvement to machine learning technology (e.g., they was a machine learning model is trained). Machine learning technology/training is computer-related technology, whereas advertising A/B lifts (and/or matching/pairing geographical regions into control/target groups) are not. In Finjan Inc. v. Blue Coat Systems, the claimed invention was directed to an improvement to virus scanning techniques. Virus scanning techniques is computer-related technology, whereas advertising A/B lifts (and/or matching/pairing geographical regions into control/target groups) are not.
Second, the alleged “problem” is not necessarily one addressed by claimed invention. As discussed above, the alleged problem is “combinatorial explosion” that “would arise from an attempt to decrease the size of geographical entities to improve the accuracy of a statistical analysis used to determine audience uplift, thereby increasing the number of geographical entities… so that A/B testing may be more accurately performed” (from Applicant’s arguments). However, there is no requirement that the claimed uplift test or process actually has some exorbitantly large number of geographic areas, and therefore it is not clear that the problem of “combinatorial explosion” actually exists and/or is being addressed by the claimed invention. The claimed invention only requires clustering “a plurality of geographical entities” to define “a plurality of geographical entity clusters”. It is possible for there to be only a small number (e.g., 4, 6, etc.,) geographical entities. This would not amount to “combinatorial explosion” that would render a general-purpose computer incapable of performing the desired process. As such, the scope of the claimed inventions encompasses embodiments where the alleged problem does not exist, and therefore is not being addressed/solved by the claim process.
Third, the alleged solution is simply a mathematical/statistical process, as opposed to logical software structures. Furthermore, the instant claims are recited at a level of generality that does not amount to a “particular solution”. Applicant’s arguments repeatedly refer to Figures 9, 11, 13, and 14. These flow charts depict a solution that involves identification of dominant places, use of distance matrices, use of cross-pollination matrix, sorting by population size, and use of various specific preconfigured thresholds. The instant claims merely require clustering (using unspecified means), selection of geographical entities “in response to their respective populations” (e.g., somehow based on population), repeated allocating involving matching based on quantified similarity (somehow, and similarity is quantified using unspecified means) and “conditionally” based on some unknown condition.
Applicant specifically argues that
2) “Further, claim 1 has been amended to recite the last step of "optimally configuring (907) audience devices for subsequent measurement of audience uplift by transmitting content signals to audience devices for audience members in the group (208) to which content will be provided." In such case, sufficient structure is now recited in the claims in regard to the steps that are performed..”
Examiner respectfully disagrees with Applicant’s second argument.
Transmitting the content to the audience members in the group is part of the abstract. The requirement for the transmitting to be via transmitting “content signals to audience devices for audience members” serves merely to limit the application of the abstract idea to computing environments, such as distributed computing environments and/or the internet, where information is represented digitally and exchanged between computers over a network, as opposed to physical forms of information distribution (e.g., in-person marketing, physical mailers, etc.). This reasoning was demonstrated in Intellectual Ventures I LLC v. Capital One Bank (Fed. Cir. 2015), where the court determined "an abstract idea does not become nonabstract by limiting the invention to a particular field of use or technological environment, such as the Internet [or] a computer"). This/these limitation(s) do/does not impose any meaningful limits on practicing the abstract idea, and therefore do/does not integrate the abstract idea into a practical application (see MPEP 2106.05(g)). This does not amount to “sufficient structure” to integrate the abstract idea into a practical application. The client devices are not “optimally configured” in any technical sense. Instead, the audience group that has been created to be the test group is “optimally configured” (e.g., to reduce bias), and the content/advertisements happens to be sent digitally to their electronic devices. Furthermore, even if analyzed as an “additional” element, the entire element of “optimally configuring (907) audience devices for subsequent measurement of audience uplift by transmitting content signals to audience devices for audience members in the group (208) to which content will be provided” is insignificant post-solution activity, and amounts to well-understood, routine, and conventional activity in the field of marketing and/or lift analysis.
v Applicant’s amendments and arguments, with respect to the rejection of amended claims 1, 11, and 21 (as well as each of the dependent claims) under 35 U.S.C. §103 have been considered, and are persuasive. The Examiner is not persuaded by Applicant’s argument that the amended claims are non-obvious because they involve reduction in permutations or minimizing combinatorial explosion, or computational cost. These are alleged advantages of the claimed process rather than features/requirements of the claimed process. The Examiner is also not persuaded that the prior art fails to disclose “optimally configuring (907) audience devices for subsequent measurement of audience uplift by transmitting content signals to audience devices for audience members in the group (208) to which content will be provided”. The prior art (e.g., Kitts) discloses a great number of ways of formulating test and control groups used to conduct lift testing experiments, and further disclose transmitting ads to the users/devices allocated to the test group. Although these prior art systems may allocate users/devices to test and control groups using a different process (and therefore, the test and control groups may comprise different users/devices), the test and control groups are still “optimally configured” as they are configured according to the preferences/desires of the entity creating the lift test. However, the Examiner is persuaded that the particular process for allocating geographical entities to the test and control groups (i.e., the “group (208) to which content will be provided” and the “group (207) from which content will be withheld” respectively) required by the claim language is novel and non-obvious. See the Examiner’s indication of novel and non-obvious subject matter at the end of this 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.
v Claim(s) 1-25 is/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.
Step 1:
Claim(s) 1-10 is/are drawn to methods (i.e., a process), claim(s) 11-20 is/are drawn to apparatus (i.e., a machine/manufacture), and claim(s) 21-25 is/are drawn to non-volatile computer-readable media (i.e., a machine/manufacture – Examiner notes that a broadest reasonable interpretation of “non-volatile computer-readable media” does not encompass carrier waves or other forms of transitory/signal-based or otherwise non-statutory forms of storage media, consistent with the plane meaning of the phase and as would be interpreted by one of ordinary skill in the art (one skilled in the art would understand “non-volatile computer-readable media” does not encompass carrier waves or other forms of transitory/signal-based forms of storage media). Examiner further notes that Applicant’s specification states that the non-volatile computer-readable media is solid-state memory ([0040] of the published disclosure). As such, claims 1-25 is/are drawn to one of the statutory categories of invention (Step 1: YES).
Step 2A - Prong One:
In prong one of step 2A, the claim(s) is/are analyzed to evaluate whether it/they recite(s) a judicial exception.
Claim 1 (representative of independent claim(s) 11 and 21) recites/describes the following steps;
clustering (904) the geographical entities by processing the audience movement signals (110) with the audience area data to define a plurality of geographical entity clusters;
initializing (1302) a first candidate group by selecting geographical entities from the plurality of geographical entity clusters in response to their respective populations;
initializing (1303) a second candidate group by selecting geographical entities from the plurality of geographical entity clusters in response to their respective populations;
repeatedly performing allocating steps comprising: a) matching (1310) a geographical entity from the first candidate group with a geographical entity from the second candidate group in response to their quantified audience similarity, to form a pair of matched geographical entities;
b) adding (1408) a first of the pair of the matched geographical entities to a group (207) from which content will be withheld and removing the first of the pair of the matched geographical entities from the first candidate group;
c) conditionally adding (1307) a geographical entity from the plurality of geographical entity clusters to the first candidate group in response (1305) to the removal (1408) of a geographical entity from the first candidate group;
d) adding (1409) a second of the pair of the matched geographical entities to a group (208) to which content will be provided and removing the second of the pair of the matched geographical entities from the second candidate group;
e) conditionally adding (1407) a geographical entity from the plurality of geographical entity clusters to the second candidate group in response (1405) to the removal (1409) of a geographical entity from the second candidate group;
optimally configuring (907) audience…for subsequent measurement of audience uplift by transmitting content…to…audience members in the group (208) to which content will be provided
These steps, under its broadest reasonable interpretation, describe or set-forth a process for designing and implementing a holdout test to measure audience uplift responsive to transmitted content (e.g., advertisements). More specifically, the process comprises clustering entities (e.g., geographic areas, such as zip codes) by processing audience movement signals (indications of audience movement) with audience area data to define a plurality of entity clusters, initializing (1302) a first candidate group by selecting geographical entities from the plurality of geographical entity clusters in response to their respective populations; initializing (1303) a second candidate group by selecting geographical entities from the plurality of geographical entity clusters in response to their respective populations; repeatedly performing allocating steps comprising: a) matching (1310) a geographical entity from the first candidate group with a geographical entity from the second candidate group in response to their quantified audience similarity, to form a pair of matched geographical entities; b) adding (1408) a first of the pair of the matched geographical entities to a group (207) from which content will be withheld and removing the first of the pair of the matched geographical entities from the first candidate group; c) conditionally adding (1307) a geographical entity from the plurality of geographical entity clusters to the first candidate group in response (1305) to the removal (1408) of a geographical entity from the first candidate group; d) adding (1409) a second of the pair of the matched geographical entities to a group (208) to which content will be provided and removing the second of the pair of the matched geographical entities from the second candidate group; e) conditionally adding (1407) a geographical entity from the plurality of geographical entity clusters to the second candidate group in response (1405) to the removal (1409) of a geographical entity from the second candidate group; and optimally configuring (907) audience…for subsequent measurement of audience uplift by transmitting content…to…audience members in the group (208) to which content will be provided. This process for designing and implementing a holdout test to measure audience uplift amounts to a fundamental economic principle or practice (including hedging, insurance, mitigating risk); and/or a commercial or legal interactions (specifically, an advertising, marketing or sales activity or behavior). These limitations therefore fall within the “certain methods of organizing human activity” subject matter grouping of abstract ideas.
Additionally, and/or alternatively, each of the above-recited steps/functions, under their broadest reasonable interpretation, encompass a human manually (e.g., in their mind, or using paper and pen) performing one or more concepts performed in the human mind, such as one or more observations, evaluations, judgments, opinions, but for the recitation of generic computer components. Each of the steps of clustering, initializing, repeatedly performing, adding, and conditionally adding amount to data analysis and therefore amount to observations, evaluations, and/or judgments. If one or more claim limitations, under their broadest reasonable interpretation, covers performance of the limitation(s) in the mind but for the recitation of generic computer components, then it falls within the “mental processes” subject matter grouping of abstract ideas.
As such, the Examiner concludes that claim 1 recites an abstract idea (Step 2A – Prong One: YES).
Independent claim(s) 11 and 21 recite/describe nearly identical steps (and therefore also recite limitations that fall within this subject matter grouping of abstract ideas), and this/these claim(s) is/are therefore determined to recite an abstract idea under the same analysis.
Each of the depending claims likewise recite/describe these steps (by incorporation - and therefore also recite limitations that fall within this subject matter grouping of abstract ideas), and this/these claim(s) is/are therefore determined to recite an abstract idea under the same analysis. Any element(s) recited in a dependent claim that are not specifically identified/addressed by the Examiner under step 2A (prong two) or step 2B of this analysis shall be understood to be an additional part of the abstract idea recited by that particular claim. The same reasoning is similarly applicable to the limitations in the remaining dependent claims, and their respective limitations are not reproduced here for the sake of brevity.
Step 2A - Prong Two:
In prong two of step 2A, an evaluation is made whether a claim recites any additional element, or combination of additional elements, that integrate the exception into a practical application of that exception. An “addition element” is an element that is recited in the claim in addition to (beyond) the judicial exception (i.e., an element/limitation that sets forth an abstract idea is not an additional element). The phrase “integration into a practical application” is defined as requiring an additional element or a combination of additional elements in the claim to apply, rely on, or use the judicial exception in a manner that imposes a meaningful limit on the judicial exception, such that it is more than a drafting effort designed to monopolize the exception.
The claim(s) recite the additional elements/limitations of
“performed by a processing system” (claim 1)
“apparatus for serving content…the apparatus comprising at least one processor configured to perform the steps of” (claim 11)
“a non-volatile computer-readable medium having instructions stored upon it wherein said instructions configure a computer system for…by performing steps of” (claim 21)
“configuring audience devices…by transmitting content signals to audience devices for audience members in the group (208)” (claims 1, 11, and 21)
“to audience devices on a network” (claims 11 and 21)
“wherein the at least one processor is further configured” (claims 12-20)
“further including instructions” (claims 22-25)
The requirement to execute the claimed steps/functions “performed by a processing system” (claim 1) or by an “apparatus for serving content…the apparatus comprising at least one processor configured to perform the steps of” (claim 11) or by “a non-volatile computer-readable medium having instructions stored upon it wherein said instructions configure a computer system for…by performing steps of” (claim 21) and/or the recitation of “wherein the at least one processor is further configured” (claims 12-20) and/or the recitation of “further including instructions to” (claims 22-25) is equivalent to adding the words “apply it” on a generic computer and/or mere instructions to implement the abstract idea on a generic computer. Applicant’s own disclosure explains that these “additional” elements may be embodied as a general-purpose computer (e.g., the published specification at paragraphs [0048]-[0050] “is a computer system...located in a server farm…physical server…CPU…network interface…”). This/these limitation(s) do/does not impose any meaningful limits on practicing the abstract idea, and therefore do/does not integrate the abstract idea into a practical application (see MPEP 2106.05(f)).
The recited additional element(s) of “configuring audience devices…by transmitting content signals to audience devices for audience members in the group (208)” (claims 1, 11, and 21) and/or “to audience devices on a network” (claims 11 and 21) serves merely to generally link the use of the judicial exception to a particular technological environment or field of use. Specifically, it/they serve(s) to limit the application of the abstract idea to computing environments, such as distributed computing environments and/or the internet, where information is represented digitally, exchanged between computers over a network, as opposed to physical forms of information distribution (e.g., in-person marketing, physical mailers, etc.). This reasoning was demonstrated in Intellectual Ventures I LLC v. Capital One Bank (Fed. Cir. 2015), where the court determined "an abstract idea does not become nonabstract by limiting the invention to a particular field of use or technological environment, such as the Internet [or] a computer"). This/these limitation(s) do/does not impose any meaningful limits on practicing the abstract idea, and therefore do/does not integrate the abstract idea into a practical application (see MPEP 2106.05(g)).
The recited element(s) of “optimally configuring (907) audience devices for subsequent measurement of audience uplift by transmitting content signals to audience devices for audience members in the group (208) to which content will be provided” (claims 1, 11, and 21), even if considered to be an “additional” element for the purpose of the eligibility analysis, would simply append insignificant extra-solution activity to the judicial exception, (e.g., mere post-solution activity in conjunction with an abstract idea). The term “extra-solution activity” is understood as activities incidental to the primary process or product that are merely a nominal or tangential addition to the claim. The recited additional element(s) do are deemed “extra-solution” because such data outputting/transmission steps have long been held to be insignificant pre/post-solution activity (e.g., transmitting the ads to the target/preferred group based on the invention solution, which is a way of identifying the target/preferred group. Examiner notes the client devices are not “optimally configured” in any technical sense. Instead, the audience group that has been created to be the test group is “optimally configured” (e.g., to reduce bias), and the content/advertisements happens to be sent digitally to their electronic devices.). Examiner notes that each of the independent claims also comprise a preamble that suggests audience movement signals are received responsive to audience movement between a plurality of geographical entities. This descriptive material is recited in the preamble, therefore merits no patentable weight, and therefore is not an “additional” element. Furthermore, even if this descriptive material were given patentable weight, this step would simply append insignificant extra-solution activity to the judicial exception, (e.g., mere pre-solution activity, such as data gathering, in conjunction with an abstract idea). The recited additional element(s) do are deemed “extra-solution” because all uses of the recited judicial exceptions require such data gathering, and because such data gathering have long been held to be insignificant pre/post-solution activity. This/these limitation(s) do/does not impose any meaningful limits on practicing the abstract idea, and therefore do/does not integrate the abstract idea into a practical application (see MPEP 2106.05(h) and (g)).
Furthermore, although the claims recite a specific sequence of computer-implemented functions, and although the specification suggests certain functions may be advantageous for various reasons (e.g., business reasons), the Examiner has determined that the ordered combination of claim elements (i.e., the claims as a whole) are not directed to an improvement to computer functionality/capabilities, an improvement to a computer-related technology or technological environment, and do not amount to a technology-based solution to a technology-based problem. For example, Applicant’s published specification suggests that it is advantageous to implement the claimed business process because doing so can provide an effective mechanism for accurately measuring advertising effectiveness while preserving user privacy (see, for example, Applicant’s published disclosure at paragraphs [0003]-[0005], [0041], [0046], [0066]-[0067] & [0098]). These are non-technical business advantages/improvements. At most, the ordered combination of claim elements is directed to a non-technical improvement to an abstract idea itself (e.g., an improved process for designing and implementing an A/B or holdout test to measure campaign lift).
Dependent claims 2-10 fail to include any additional elements. In other words, each of the limitations/elements recited in respective dependent claims 2-10 is/are further part of the abstract idea as identified by the Examiner for each respective dependent claim (i.e. they are part of the abstract idea recited in each respective claim). For example, claim 2 recites “further including the step of measuring audience uplift in response to signals for a resulting audience behavior in the group (208) to which content will be provided with the signals for a corresponding audience behavior in the group (207) from which content will be withheld”. This is an abstract limitation which further sets forth the abstract idea encompassed by claim 2. This limitation is not an “additional element”, and therefore it is not subject to further analysis under Step 2A- Prong Two or Step 2B. The same logic applies to each of the other dependent claims, whose limitations are not being repeated here for the sake of brevity and clarity. With respect to the other dependent claims not specifically listed here - each of the limitations/elements recited in these dependent claims other than those identified as being “additional” elements above (at the beginning of the Prong One analysis), are further part of the abstract idea encompassed by each respective dependent claim (i.e. it should be understood that these limitations are part of the abstract idea recited in each respective claim).
The Examiner has therefore determined that the additional elements, or combination of additional elements, do not integrate the abstract idea into a practical application. Accordingly, the claim(s) is/are directed to an abstract idea (Step 2A – Prong two: NO).
Step 2B:
In step 2B, the claims are analyzed to determine whether any additional element, or combination of additional elements, is/are sufficient to ensure that the claims amount to significantly more than the judicial exception. This analysis is also termed a search for an "inventive concept." An "inventive concept" is furnished by an element or combination of elements that is recited in the claim in addition to (beyond) the judicial exception, and is sufficient to ensure that the claim as a whole amounts to significantly more than the judicial exception itself. Alice Corp., 134 S. Ct. at 2355, 110 USPQ2d at 1981 (citing Mayo, 566 U.S. at 72-73, 101 USPQ2d at 1966)
As discussed above in “Step 2A – Prong 2”, the requirement to execute the claimed steps/functions “performed by a processing system” (claim 1) or by an “apparatus for serving content…the apparatus comprising at least one processor configured to perform the steps of” (claim 11) or by “a non-volatile computer-readable medium having instructions stored upon it wherein said instructions configure a computer system for…by performing steps of” (claim 21) and/or the recitation of “wherein the at least one processor is further configured” (claims 12-20) and/or the recitation of “further including instructions to” (claims 22-25) is equivalent to adding the words “apply it” on a generic computer and/or mere instructions to implement the abstract idea on a generic computer. These limitations therefore do not qualify as “significantly more” (see MPEP 2106.05(f)).
As discussed above in “Step 2A – Prong 2”, the recited additional element(s) of “configuring audience devices…by transmitting content signals to audience devices for audience members in the group (208)” (claims 1, 11, and 21) and/or “to audience devices on a network” (claims 11 and 21) serves merely to generally link the use of the judicial exception to a particular technological environment or field of use. These limitations therefore do not qualify as “significantly more” (see MPEP 2106.05(g)).
As discussed above in “Step 2A – Prong 2”, the recited element(s) of “optimally configuring (907) audience devices for subsequent measurement of audience uplift by transmitting content signals to audience devices for audience members in the group (208) to which content will be provided” (claims 1, 11, and 21), and/or the suggestion in the preambles that audience movement signals are received responsive to audience movement between a plurality of geographical entities, even if considered to be an “additional” element for the purpose of the eligibility analysis, would simply append insignificant extra-solution activity to the judicial exception, (e.g., mere pre-solution activity, such as data gathering, in conjunction with an abstract idea; mere post-solution activity in conjunction with an abstract idea). These additional element(s), taken individually or in combination, additionally amount to well-understood, routine and conventional activities previously known to the industry, specified at a high level of generality, appended to the judicial exception. These additional elements, taken individually or in combination, are well-understood, routine and conventional to those in the field of marketing and advertising. These limitations therefore do not qualify as “significantly more”. (see MPEP 2106.05(d)). This conclusion is based on a factual determination. The determination that receiving data/messages over a network is well-understood, routine, and conventional is supported by Symantec, 838 F.3d at 1321, 120 USPQ2d at 1362; TLI Communications LLC v. AV Auto. LLC, 823 F.3d 607, 610, 118 USPQ2d 1744, 1745 (Fed. Cir. 2016); OIP Techs., Inc., v. Amazon.com, Inc., 788 F.3d 1359, 1363, 115 USPQ2d 1090, 1093 (Fed. Cir. 2015); buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355, 112 USPQ2d 1093, 1096 (Fed. Cir. 2014), and MPEP 2106.05(d)(II), which note the well-understood, routine, conventional nature of receiving data/messages over a network. Furthermore, Examiner takes Official Notice that these steps were well-understood, routine, and conventional at the effective filing date of the claimed invention. Furthermore, the lack of technical detail/description in Applicant’s own specification provides implicit evidence that these steps were well-understood, routine, and conventional.
Viewing the additional limitations in combination also shows that they fail to ensure the claims amount to significantly more than the abstract idea. When considered as an ordered combination, the additional components of the claims add nothing that is not already present when considered separately, and thus simply append the abstract idea with words equivalent to “apply it” on a generic computer and/or mere instructions to implement the abstract idea on a generic computer, generally link the abstract idea to a particular technological environment or field of use, append the abstract idea with insignificant extra solution activity associated with the implementation of the judicial exception, (e.g., mere data gathering, post-solution activity), and appended with well-understood, routine and conventional activities previously known to the industry.
Dependent claims 2-10 fail to include any additional elements. In other words, each of the limitations/elements recited in respective dependent claims 2-10 is/are further part of the abstract idea as identified by the Examiner for each respective dependent claim (i.e. they are part of the abstract idea identified by the Examiner to which each respective claim is directed).
The Examiner has therefore determined that no additional element, or combination of additional claims elements is/are sufficient to ensure the claim(s) amount to significantly more than the abstract idea identified above (Step 2B: NO).
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(B) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-25 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor, or for pre-AIA the applicant regards as the invention.
v Claims 1, 11, and 21 recite "repeatedly performing allocating steps comprising: a) matching (1310) a geographical entity from the first candidate group with a geographical entity from the second candidate group in response to their quantified audience similarity, to form a pair of matched geographical entities". There is insufficient antecedent basis for this limitation in the claim, as there is no previous recitation of quantified audience similarity or suggestion that a quantified audience similarity exists. For the purpose of examination, the phrase “repeatedly performing allocating steps comprising: a) matching (1310) a geographical entity from the first candidate group with a geographical entity from the second candidate group in response to their quantified audience similarity, to form a pair of matched geographical entities” will be interpreted as being “repeatedly performing allocating steps comprising: a) matching (1310) a geographical entity from the first candidate group with a geographical entity from the second candidate group in response to [[their]] a corresponding quantified audience similarity, to form a pair of matched geographical entities.”
Each of the dependent claims are similarly rejected by virtue of their dependency on one of these claims.
Indication of Novel and Non-Obvious Subject Matter
Independent claims 1, 11, and 21 recite novel and non-obvious subject matter. Each of the dependent claims similarly recite novel and non-obvious subject matter by virtue of their dependency on one of these claims.
The following is an examiner’s statement of reasons for indication of novel and non-obvious subject matter:
The closest prior art of record is Kitts et al. (U.S. PG Pub No. 2014/0100947, April 10, 2014 - hereinafter "Kitts”); Ames (U.S. PG Pub No. 2021/0158245, May 27, 2021 - hereinafter "Ames”); Shim et al. (U.S. PG Pub No. 2016/0048869 , February 18, 2016- hereinafter "Shim”); Cheng et al. (U.S. PG Pub No. 2020/0089786 March 19, 2020- hereinafter "Cheng”); Polhemus, Jr. et al. (U.S. PG Pub No. 2019/0295128, September 26, 2019); Maginnis (U.S. PG Pub No. 2016/0371722 December 22, 2016); Chalasani et al. (U.S. Patent No. 10,467,659, November 5, 2019); “How Wayfair Uses Geo Experiments to Measure Incrementality” (Jennings, Wiley; published online at https://www.aboutwayfair.com/careers/tech-blog/how-wayfair-uses-geo-experiments-to-measure-incrementality on April 26, 2023); and “GeoLift: A Comprehensive Solution for Lift Analysis at a Geo Level” (screen capture of https://www.neenopal.com/lift-analysis-at-geo-level.html from November 28, 2022 using Internet Wayback machine, retrieved on November 10, 2025)
Kitts discloses a process for designing and implementing a holdout test to measure audience uplift responsive to transmitted content (e.g., advertisements). The process involves iteratively allocating a plurality of defined entity clusters (e.g., DMAs, local market zones, or the “behaviorally distinct areas”) representing distinct marketing areas that are based on audience area data representing different geographical entities (e.g., zip codes and/or counties) to test and holdout groups based on quantified similarity.
Ames discloses a process for designing and implementing a holdout test to measure audience uplift responsive to transmitted content (e.g., advertisements). Ames discloses generating defined entity clusters representing distinct marketing areas based on actual audience movement data. Ames discloses receiving audience movement signals responsive to audience movement between a plurality of geographical entities and processing the movement signals with audience area data representing the plurality of geographical entities (recited in the preamble). Ames further discloses clustering the entities by processing the audience movement signals with the audience area data to define a plurality of entity clusters.
Shim discloses wherein the step of allocating further includes the step of allocating unallocated geographical entities to a group whose audience will be served the content and for which resulting audience behavior will not be measured.
Cheng discloses wherein the step of quantifying audience similarity includes the step of obtaining the similarity scores by calculating a cosine similarity between normalized audience characteristics for respective entities.
Polhemus, Jr. teaches analyzing mobile device movement signals to dynamically cluster sets of zip codes into a plurality of spheres of influence (i.e., marketing areas) for use when targeting marketing campaigns.
Maginnis teaches a system for analyzing audience/sales data to cluster geographical regions into a plurality of clusters for use in conducting promotional lift experiments.
Chalasani incremental lift analysis using clusters of geographic regions.
“How Wayfair Uses Geo Experiments to Measure Incrementality” discloses a process for clustering zip codes into a plurality of zip code clusters while accounting for cross-pollination and using the clusters to perform lift test analysis.
“GeoLift: A Comprehensive Solution for Lift Analysis at a Geo Level” discloses performing lift testing at a geo-level using optimal combinations of geographical test and control areas
As per claims 1, 11, and 21, the prior art discloses many different processes/strategies for creating geographical entities, and for allocating geographical entities into test and control groups (i.e., the “group (208) to which content will be provided” and the “group (207) from which content will be withheld” respectively) when designing and conducting lift testing. The prior art discloses a variety of geographic entity clustering techniques, discloses creating geographic entities using mobile device movement data so as to reduce cross-pollination effects, discloses allocating geographic entities based on quantified similarity, and discloses use of geographic buffers between test/control groups. However, the closest prior art of record taken either individually or in combination with other prior art of record fails to teach or suggest the particular iterative process for allocating geographical entities to the test and control groups required by the claim language, which requires clustering of the geographic entities by processing audience movement signals and the audience data, initializing first and second candidate groups by selecting geographic entities from the plurality of geographic entity clusters based on their respective populations, and repeatedly performing an allocation process involving matching geographic entities based on quantified similarity followed by allocating geographic entities from the first and second candidate groups to the test and control groups while removing each added geographic entity from the candidate group to which it had previously, and further the conditional adding of geographic entities from the plurality of geographical entity clusters to the first/second candidate groups in response to the removal of geographical entities from the first/second candidate groups. More specifically, the claim language requires
“clustering (904) the geographical entities by processing the audience movement signals (110) with the audience area data to define a plurality of geographical entity clusters;
initializing (1302) a first candidate group by selecting geographical entities from the plurality of geographical entity clusters in response to their respective populations;
initializing (1303) a second candidate group by selecting geographical entities from the plurality of geographical entity clusters in response to their respective populations;
repeatedly performing allocating steps comprising: a) matching (1310) a geographical entity from the first candidate group with a geographical entity from the second candidate group in response to their quantified audience similarity, to form a pair of matched geographical entities;
b) adding (1408) a first of the pair of the matched geographical entities to a group (207) from which content will be withheld and removing the first of the pair of the matched geographical entities from the first candidate group;
c) conditionally adding (1307) a geographical entity from the plurality of geographical entity clusters to the first candidate group in response (1305) to the removal (1408) of a geographical entity from the first candidate group;
d) adding (1409) a second of the pair of the matched geographical entities to a group (208) to which content will be provided and removing the second of the pair of the matched geographical entities from the second candidate group;
e) conditionally adding (1407) a geographical entity from the plurality of geographical entity clusters to the second candidate group in response (1405) to the removal (1409) of a geographical entity from the second candidate group;
optimally configuring (907) audience devices for subsequent measurement of audience uplift by transmitting content signals to audience devices for audience members in the group (208) to which content will be provided”
While various subsets of these individual features may be known per se, there is no teaching or suggestion absent applicants’ own disclosure to combine these features to arrive at the particular iterative process for allocating geographical entities to the test and control groups required by the claim language other than with impermissible hindsight.
Claims 2-10, 12-10, and 22-25 depend upon claims 1, 11, or 21 and have all the limitations of claims 1, 11, or 21, and therefore similarly recite novel and non-obvious subject matter.
Conclusion
No claim is allowed
THIS ACTION IS MADE FINAL. 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 extension fee 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 JAMES M DETWEILER whose telephone number is (571)272-4704. The examiner can normally be reached on Monday-Friday from 8 AM to 5 PM ET.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Waseem Ashraf can be reached at telephone number (571)-270-3948. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JAMES M DETWEILER/Primary Examiner, Art Unit 3621