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 .
DETAILED ACTION
Status of Claims
The following is a Final Office Action in response to Applicant’s amendment received 06/10/2026.
Claims 1-20 are currently pending.
Response to Amendment
No claims were amended, canceled, or added as new claims in the submission filed on 06/10/2026. The double patenting and 35 USC §101 and §103 rejections of claims 1-20 are maintained.
Response to Arguments
Response to §101 arguments: Applicant’s arguments (Remarks at pgs. 7-16) with respect to the §101 rejection of claims 1-20 have been considered, but are not persuasive.
Applicant first argues under Step 2A Prong One of the eligibility inquiry that the rejection fails under Prong One because the office action fails to show the claims “recite” an abstract idea, alleging that the rejection “constitutes legal error” (Remarks at pg. 10). And that the rejection “fails to provide a stable and identifiable basis for the Prong One analysis” (Remarks at pg. 11). The Examiner respectfully disagrees.
In response, the Examiner maintains that the Step 2A Prong One eligibility analysis strictly adheres to the step-by-step guidance set forth in MPEP 2106, including MPEP 2106.04(a), which under Step 2A Prong One first requires Examiners to “Identify the specific limitation(s) in the claim under examination (individually or in combination) that the examiner believes recites an abstract idea” and to determine “whether the identified limitation(s) fall within at least one of the groupings of abstract ideas.” The analysis provided under Step 2A Prong One of the §101 rejection in this instance plainly identifies the specific limitations (via bold text) reciting the abstract idea, and further identifies the specific abstract idea groupings. Applicant’s remarks fail to acknowledge, discuss, or point out any supposed errors in the explicitly articulated analysis and findings set forth in the Step 2A Prong One analysis.
In response to applicant’s suggestion that the identification of the compilation of claim text is procedurally deficient for lack of clarity and specificity (Remarks at pg. 11), this argument lacks merit because it fails to acknowledge or identify any supposed errors in the step-by-step articulated findings mapped to each particular limitation clearly articulating the reasons why certain limitations are interpreted as setting forth or describing activity falling within a specific abstract idea grouping. Similarly, in response to applicant’s suggestion that the rejection is deficient on the basis that the “monitoring” step is evaluated as part of the abstract idea itself as well as insignificant extra-solution activity (Remarks at pg. 14), the Examiner emphasizes that this step was identified as reciting activity falling under the scope of the abstract idea, but plainly noted, for the sake of completeness or to address a less-probable but nevertheless plausible alternative interpretation of the step within the Step 2A analysis, that “this activity could be considered insignificant extra-solution activity” which (as an additional element), but would nevertheless be insufficient to integrate the abstract idea into a practical application or add significantly more to the claims.
Next, under Step 2A Prong Two, applicant’s remarks concern the “monitoring” step are addressed in the paragraph above and the Examiner further emphasizes that the “monitoring” is quite reasonably considered as being part of the abstract idea itself, notwithstanding the additional analysis in the alternative. In particular, limitation of “monitor consumption of online content created by a content creator by consumers through a computer system, the content creator offering levels of access to the online content, wherein the consumers consume the online content through computing platforms communicating with the computer system over a network” falls under the “certain methods of organizing human activity” abstract idea grouping by describing sales/marketing activity because the consumption monitoring is directly in support of providing recommendations related thereto, and falls under the “mental processes” abstract idea grouping because, but for the generic computer implementation (through a computer system), could be implemented as mental activity such as via human evaluation, judgment, or opinion. Notably, this step does not actually require online/network consumption or delivery of the content, but merely involves monitoring of consumption, e.g., a human observing subscriber data. Notably, the “wherein” statement reciting “wherein the consumers consume the online content through computing platforms communicating with the computer system over a network” does not represent a separate or additional step, but instead merely describes the source of the consumption.
Response to §101 arguments: Applicant’s arguments (Remarks at pgs. 16-23) with respect to the §103 rejection of claims 1-20 have been considered, but are not persuasive.
Applicant first argues against the §103 rejection of claim 1 by suggesting that the cited prior art does not teach “…the content creator offering levels of access” and “the recommendation indicating creator consideration in exchange for different ones of the levels of access” (Remarks at pg. 17). The Examiner respectfully disagrees.
In response, the Examiner maintains that the primary reference, Lewis, teaches the content creator offering levels of access to the online content, wherein the consumers consume the online content through computing platforms communicating with the computer system over a network (pars. 15, 18, 20, 36-38, 43, and 57) by describing, for example, that “content/channel collection creator 80 may be an individual (e.g., a recording artist), a group of individuals, or an organization (e.g., a movie studio that produces trailers for upcoming movies)” and that “subscriber may subscribe to a channel collection, which provides the subscriber access to multiple channels” and allows the subscriber to receive automatic updates to the channel collection as channels are added and deleted from the channel collection [i.e., different levels of access represented as channel collections],” and that “the viewer may elect to subscribe to only a subset of channels in a channel collection [which is a level of access to the channels within that collection,” and wherein “FIG. 3B illustrates an example media device that enables subscriptions to channel collections,” and “Channel collections may make subscriptions easier to manage for both subscribers and for content/channel collection creators,” and “subscribe to, for example, all the recording artists in the top 40 [also a level of access].” Accordingly, Lewis’s different subscription features enabling users to subscribe to different content/channel collections fairly teaches “levels of access” to content provided by the content creator, wherein the content creator may be an individual, organization, recording artist, or the like. Similarly, Lewis teaches the step of claim 1 directed to generate a recommendation based on analysis of the content creator, the analysis of the content creator determining impact of characteristics of the content creator and the online content on the consumption of the online content, the recommendation indicating creator consideration in exchange for different ones of the levels of access (pars. 27 and 51: suggest to a creator of the channel collection, channel changes to improve the affinity score of the channel collection; system 300 may provide prompts or suggestions to content/channel collection creators to add channels to channel collections), wherein the added content/channels represent additional access levels to new/added content, such that the changes to content/channels (i.e., adding new levels of content/channels) as well as the expected improvement are considerations for the creator in exchange for access to the changed or added content/channels suggested.
In response to applicant’s argument that the cited portions of Lewis fail to teach the different levels of access “in exchange for different subscriber commitments” (Remarks at pg. 18), this argument is confusing and lacking merit because the claim does not recite or require “different subscriber commitments” and the basis of the argument is lacking substance because it appears to rely on a limitation not required by the claim. Therefore, Applicant’s argument’s is unpersuasive because it relies on applying a narrower/different interpretation than the claim language requires by seeking to import limitations from the specification or at least limitations not required by the claim, which is impermissible. See Superguide Corp. v. DirecTV Enterprises, Inc., 358 F.3d 870, 875, 69 USPQ2d 1865, 1868 (Fed. Cir. 2004). See also, CollegeNet, Inc. v. Apply Yourself Inc., 418 F.3d 1225, 1231 (Fed. Cir. 2005) (while the specification can be examined for proper context of a claim term, limitations from the specification will not be imported into the claims).
The Examiner further notes that the secondary reference duplicates Lewis’s teaching of the different levels of access recited in claim 1 by teaching, the content creator offering levels of access to the online content, wherein the consumers consume the online content through computing platforms communicating with the computer system over a network by teaching streaming features allowing users to select, listen to and download single tracks of music, noting that “Users have the opportunity to listen to or view fresh, exciting and challenging new movies, television content, music or internet content; Users may engage in activities and consume content provided by any of the parties participating in the shared network,” wherein granting of access to any of the listed content represents a level of access provided to consumers by a creator (Bell at pars. 18, 33, 38, 190, and Figs. 1 and 5). Accordingly, the prior art teaches the disputed limitations.
Lastly, in response to applicant’s suggestion that the §103 rejection lacks a rational underpinning to combine the references and that the assertions “are entirely devoid of objective reasoning,” while suggesting a lack of motivation as best understood by the Examiner (Remarks at pgs. 21-22), this argument lacks merit first because motivation is not required to support the combination of references in support of a §103 rejection. Notably, the United States Court of Appeals for the Federal Circuit (CAFC) affirmed a decision of the Patent Trial and Appeals Board (PTAB) holding that an obvious rejection is proper even when there is no explicit teaching, suggestion, or motivation to combine prior art references in In re Ethicon, Inc., No. 2015-1696. Ethicon appealed to the CAFC arguing that the PTAB’s decision does not provide any motivation for one of ordinary skill in the art to combine the prior art references. The CAFC affirmed the PTAB stating: “KSR directs that an explicit teaching, suggestion, or motivation in the references is not necessary to support a conclusion of obviousness.” 550 U.S. at 415–16. The Supreme Court has instructed that “a court must ask whether the improvement is more than the predictable use of prior art elements according to their established functions,” id. at 417, and apply “an expansive and flexible approach” to obviousness, id. at 415. Accordingly, Applicant’s suggestion that the §103 rejection is based on a lack of motivation is not persuasive.
Nevertheless, the Examiner maintains that the §103 rejection plainly sets forth a rational underpinning for combining the teachings of Lewis/Bell/Curtis to render the claimed invention as obvious, including a motivation-based rationale further bolstered by a non-motivation-based KSR rationale (i.e., predictable result from the combination of old elements). In particular, the Examiner maintains that Lewis, Bell, and Curtis are analogous references since each is directed to computer aided features for managing electronic content subscriptions, which is within Applicant’s field of endeavor of generating subscription recommendations for online content, and because modifying Lewis to incorporate Bell’s feature for monitoring consumption, as claimed, would serve the motivation to better understand subscriber affinity for content of interest, which would aid in providing suggestions related thereto in order to improve affinity for content or a channel collection of content (Lewis at par. 27); and further obvious because the claimed invention is merely a combination of old elements, and in the combination each element merely would have performed the same function as it did separately, and one of ordinary skill in the art would have recognized that the results of the combination were predictable. Moreover, a further modification to Lewis/Bell with Curtis’s selectable option within a user interface for a content creator to manage levels of access, as claimed, would provide a content creator with the ability to make subscription related changes in pursuit of improving an affinity score related to content or a channel collection of content (Lewis at par. 27), or perhaps to enable a creator to restrict/grant access to content in order to manage dissemination of exclusive content, to increase exposure, or to provide free trials of content; and further obvious because the claimed invention is merely a combination of old elements, and in the combination each element merely would have performed the same function as it did separately, and one of ordinary skill in the art would have recognized that the results of the combination were predictable.
In response to applicant’s argument that the rationale for combining the references represents a “hindsight-drive reconstruction” (Remarks at pg. 22), the Examiner respectfully disagrees. It must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971). Furthermore, it is noted that no “exact arrangement” of the references, as alleged by applicant, is relied upon in the §103 rejection nor is any such exact arrangement required to support the ultimate conclusion of obviousness. The test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981).
In this instance, the Examiner emphasizes that the §103 rejection of claim 1 expressly provides an articulated line of reasoning and rational underpinning to support the conclusion of obviousness. The obviousness rejection plainly articulates a rational underpinning for combining the references gleaned from the knowledge of one skilled in the art and including citations to the references in support thereof, and therefore such rationale cannot reasonably be considered as impermissible hindsight.
For the reasons above, applicant’s arguments are not persuasive and the §103 rejection is therefore maintained.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory obviousness-type double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); and In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on a nonstatutory double patenting ground provided the conflicting application or patent either is shown to be commonly owned with this application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement.
Effective January 1, 1994, a registered attorney or agent of record may sign a terminal disclaimer. A terminal disclaimer signed by the assignee must fully comply with 37 CFR 3.73(b).
Claims 1-20 are rejected on the ground of nonstatutory double patenting over claims 1-20 of U.S. Patent No. 12,073,421 since the claims, if allowed, would improperly extend the "right to exclude" already granted in the patent.
Claims of instant App.
(as filed on 12/20/2024)
Claims of U.S. Pat. No. 12,073,421
(issued on 8/27/2024)
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The chart above maps claims 1-20 of the instant application to corresponding claim of U.S. Patent 12,073,421 that are patentably indistinct, though not identical. For example, the chart below maps the limitations of exemplary claim 1 of the instant application to corresponding limitations of independent claim 1 of the ‘421 Patent deemed as being identical, functionally equivalent, or patentably indistinct:
Limitations of claim 1 of
the instant application
Corresponding limitations of
claim 1 of U.S. Pat. No. 12,073,421
one or more physical processors configured by machine-readable instructions
one or more physical processors configured by machine-readable instructions
monitor consumption of online content created by a content creator by consumers through a computer system, the content creator offering levels of access to the online content, wherein the consumers consume the online content through computing platforms communicating with the computer system over a network
monitor a server managing online content created by a content creator, the content creator offering levels of subscribership, wherein subscribers access the online content [i.e., content consumption] through computing platforms communicating with the server over a network; analyze the content creator to determine impact of characteristics of the content creator and the online content on subscriptions to the content creator;
generate a recommendation based on analysis of the content creator, the analysis of the content creator determining impact of characteristics of the content creator and the online content on the consumption of the online content, the recommendation indicating creator consideration in exchange for different ones of the levels of access
generate a recommendation based on analysis of the content creator to determine the impact of the characteristics of the content creator and the online content on the subscriptions to the content creator, the recommendation indicating creator consideration in exchange for individual levels of the subscribership [i.e., levels of access]
deliver the recommendation to a computing platform associated with the content creator to cause the computing platform to present the recommendation as a selectable option within a user interface of a web-based application through which the content creator manages the levels of access.
deliver the recommendation over a communications network to a computing platform of the content creator to cause the computing platform to present the recommendation as an option within a drop-down menu [i.e. a selectable option] on a user interface that is part of a webpage associated with the content creator.
One of ordinary skill in the art would have recognized the slight differences between the claim language/limitations of claims 1-20 of the instant application and claims 1-20 of the ‘421 Patent as being directed towards intention, non-functional and non-structural field-of-use language, slight variations in terminology, and/or obvious variants of claim elements, and therefore these claims are not patentably distinct from one another despite these slight differences.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-patentable subject matter. The claims are directed to an abstract idea without significantly more.
Claims 1-20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more. The judicial exception is not integrated into a practical application. The claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception. The eligibility analysis in support of these findings is provided below, in accordance with the subject matter eligibility guidance set forth in MPEP 2106.
With respect to Step 1 of the eligibility inquiry (as explained in MPEP 2106.03), it is first noted that the claimed system (claims 1-10) and method (claims 11-20) are each directed to a potentially eligible category of subject matter (i.e., machine and process, respectively). Accordingly, claims 1-20 satisfy Step 1 of the eligibility inquiry.
With respect to Step 2A Prong One of the eligibility inquiry (as explained in MPEP 2106.04), it is next noted that the claims recite an abstract idea that falls under the “Certain methods of organizing human activity” abstract idea grouping by reciting limitations describing commercial or legal interactions, such as marketing or sales activities (consumer subscription recommendations – see par. [0003] of Spec.) or managing personal behavior or relationships or interactions (monitoring consumer consumption behavior, generate recommendations based thereon) and steps that, but for the generic computer implementation, could be implemented as “Mental Processes” (e.g., observation, evaluation, judgment, or opinion). The limitations reciting the abstract idea, as set forth in independent claim 1 are identified in bold text below, whereas the additional elements are presented in plain text and are separately evaluated under Step 2A Prong Two and Step 2B:
one or more physical processors configured by machine-readable instructions (This is an additional element evaluated under Step 2A2 and 2B) to:
monitor consumption of online content created by a content creator by consumers through a computer system, the content creator offering levels of access to the online content, wherein the consumers consume the online content through computing platforms communicating with the computer system over a network (This step describes sales/marketing activity because the consumption monitoring is directly in support of providing recommendations related thereto, and but for the generic computer implementation, could be implemented as mental activity such as via human evaluation, judgment, or opinion. Notably, this step does not actually require online/network consumption or delivery of the content, but merely involves monitoring of consumption, e.g., a human viewing subscriber data. In addition, this activity could be considered insignificant extra-solution activity, which is not enough to amount to a practical application (MPEP 2106.05(g)), and such extra-solution data gathering activity has also been recognized as well-understood, routine, and conventional, and thus insufficient to add significantly more to the abstract idea. See MPEP 2106.05(d) - Receiving or transmitting data over a network, e.g., using the Internet to gather data, Symantec, 838 F.3d at 1321, 120 USPQ2d at 1362 (utilizing an intermediary computer to forward information); TLI Communications LLC v. AV Auto. LLC, 823 F.3d 607, 610, 118 USPQ2d 1744, 1745 (Fed. Cir. 2016) (using a telephone for image transmission); OIP Techs., Inc., v. Amazon.com, Inc., 788 F.3d 1359, 1363, 115 USPQ2d 1090, 1093 (Fed. Cir. 2015) (sending messages over a network); buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355, 112 USPQ2d 1093, 1096 (Fed. Cir. 2014) (computer receives and sends information over a network));
generate a recommendation based on analysis of the content creator, the analysis of the content creator determining impact of characteristics of the content creator and the online content on the consumption of the online content, the recommendation indicating creator consideration in exchange for different ones of the levels of access (This step describes sales/marketing activity because the generation of a recommendation is directly in support of recommending or delivering content to consumers/subscribers, and but for the generic computer implementation, could be implemented as mental activity such as via human evaluation, judgment, or opinion); and
deliver the recommendation to a computing platform associated with the content creator to cause the computing platform to present the recommendation as a selectable option within a user interface of a web-based application through which the content creator manages the levels of access (This step describes sales/marketing activity because the delivery of a recommendation is directly in support of recommending or delivering content to consumers/subscribers, and but for the generic computer implementation, could be implemented as mental activity such as via human evaluation, judgment, or opinion, such as with the aid of pen and paper to deliver the recommendation).
Claim 11 is directed to a method that recites substantially similar limitations as those set forth in claim 1 and discussed above, and has therefore been determined to recite the same abstract idea as claim 1.
With respect to Step 2A Prong Two of the eligibility inquiry (as explained in MPEP 2106.04(d)), the judicial exception is not integrated into a practical application. Independent claims 1 and 11 include additional elements directed to one or more physical processors configured by machine-readable instructions, a computer system, computing platform, cause the computing platform to present the recommendation as a selectable option within a user interface of a web-based application. The additional elements have been evaluated, but fail to integrate the abstract idea into a practical application because they amount to using generic computing elements or instructions (software) to perform the abstract idea, similar to adding the words “apply it” (or an equivalent), which merely serves to link the use of the judicial exception to a particular technological environment (generic computing environment). See MPEP 2106.05(f) and 2106.05(h). The step directed to present the recommendation as a selectable option within a user interface of a web-based application at most amounts to insignificant extra-solution output activity, which is not indicative of a practical application, as noted in MPEP 2106.05(g). In addition, these limitations fail to provide an improvement to the functioning of a computer or to any other technology or technical field, fail to apply the exception with a particular machine, fail to apply the judicial exception to effect a particular treatment or prophylaxis for a disease or medical condition, fail to effect a transformation of a particular article to a different state or thing, and fail to apply/use the abstract idea in a meaningful way beyond generally linking the use of the judicial exception to a particular technological environment.
Accordingly, because the Step 2A Prong One and Prong Two analysis resulted in the conclusion that the claims are directed to an abstract idea, additional analysis under Step 2B of the eligibility inquiry must be conducted in order to determine whether any claim element or combination of elements amount to significantly more than the judicial exception.
With respect to Step 2B of the eligibility inquiry (as explained in MPEP 2106.05), it has been determined that the claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception. Independent claims 1 and 11 include additional elements directed to one or more physical processors configured by machine-readable instructions, a computer system, computing platform, cause the computing platform to present the recommendation as a selectable option within a user interface of a web-based application. The additional elements have been evaluated, but fail to add significantly more to the claims because they amount to using generic computing elements or instructions/software to perform the abstract idea. See, e.g., Spec. at par. [0038], describing a litany of computing devices for implementing the invention, which encompasses virtually any computing device under the sun, e.g., “Computing component 32 may represent, for example, computing or processing capabilities found within a desktop, laptop, notebook, and tablet computers; hand-held computing devices (tablets, PDA’s, smart phones, cell phones, palmtops, etc.); workstations or other devices with displays; servers; or any other type of special-purpose or general-purpose computing devices as may be desirable or appropriate for a given application or environment,” which merely serves to tie the abstract idea to a particular technological environment (generic computing environment), similar to adding the words “apply it” (or an equivalent), which does not amount to significantly more than the abstract idea itself. See, e.g., Alice Corp., 134 S. Ct. 2347, 110 USPQ2d 1976; Versata Dev. Group, Inc. v. SAP Am., Inc., 793 F.3d 1306, 1334, 115 USPQ2d 1681, 1701 (Fed. Cir. 2015).
With respect to the step of present the recommendation as a selectable option within a user interface of a web-based application, this activity at most amounts to insignificant extra-solution activity using an interface of a generic computer, which has been recognized as well-understood, routine, and conventional, and thus insufficient to add significantly more to the abstract idea. See MPEP 2106.05(d) - Receiving or transmitting data over a network, e.g., using the Internet to gather data, Symantec, 838 F.3d at 1321, 120 USPQ2d at 1362 (utilizing an intermediary computer to forward information); TLI Communications LLC v. AV Auto. LLC, 823 F.3d 607, 610, 118 USPQ2d 1744, 1745 (Fed. Cir. 2016) (using a telephone for image transmission); OIP Techs., Inc., v. Amazon.com, Inc., 788 F.3d 1359, 1363, 115 USPQ2d 1090, 1093 (Fed. Cir. 2015) (sending messages over a network); buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355, 112 USPQ2d 1093, 1096 (Fed. Cir. 2014) (computer receives and sends information over a network). See also, Affinity Labs of Texas LLC v. DirecTV LLC, 838 F.3d 1253, 1257-1258 (Fed. Cir. 2016) (mere recitation of a GUI does not make a claim patent-eligible); Intellectual Ventures I LLC v. Capital One Bank, 792 F.3d 1363, 1370 (Fed. Cir. 2015) (“the interactive interface limitation is a generic computer element”).
In addition, when taken as an ordered combination, the ordered combination adds nothing that is not already present as when the elements are taken individually. There is no indication that the combination of elements integrate the abstract idea into a practical application. Their collective functions merely provide generic computer implementation. Therefore, when viewed as a whole, these additional claim elements do not provide meaningful limitations to transform the abstract idea into a practical application of the abstract idea or that, as an ordered combination, amount to significantly more than the abstract idea itself.
Dependent claims 2-10 and 12-20 recite the same abstract idea as recited in the independent claims, and have been determined to recite further details/activities falling under the “Certain methods of organizing human activity” abstract idea grouping by reciting further details considered marketing or sales activities (consumer subscription recommendations – see par. [0003] of Spec.) or managing personal behavior or relationships or interactions (monitoring consumer consumption behavior, generate recommendations based thereon) and steps that, but for the generic computer implementation, could be implemented as “Mental Processes” (e.g., observation, evaluation, judgment, or opinion). Dependent claims 2-10 and 12-20 do not include additional elements beyond the abstract idea itself, with the exception of execution by the same one or more physical processors (claims 6-7) as relied on to perform the limitations as claim 1, which merely involves applying the abstract idea with a generic computer and which, when evaluated under Step 2A Prong Two and Step 2B, is insufficient to integrate the abstract idea into a practical application or add significantly more based on substantially the same rationale as set forth above in the discussion of independent claims 1/11 (which is adopted herein to address claims 6-7 as well).
The ordered combination of elements in the dependent claims (including the limitations inherited from the parent claim(s)) add nothing that is not already present as when the elements are taken individually. There is no indication that the combination of elements improves the functioning of a computer or improves any other technology. Their collective functions merely provide generic computer implementation. Accordingly, the subject matter encompassed by the dependent claims fails to amount to a practical application or significantly more than the abstract idea itself.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
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 of this title, 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 1-9 and 11-19 are rejected under 35 U.S.C. §103 as unpatentable over Lewis et al. (US 2015/0007235, hereinafter “Lewis”) in view of Bell et al. (US 2002/0120501, hereinafter “Bell”) in view of Curtis et al. (US 20150262266, hereinafter “Curtis”).
Claims 1/11: As per claim 1, Lewis teaches a system configured to generate a recommendation (pars. 5, 22, 51, 84, and Figs. 3A: system for generating and maintaining subscribable channel collections; system 300 may provide prompts or suggestions to content/channel collection creators; providing channel collection subscription suggestions to individuals), the system comprising:
one or more physical processors configured by machine-readable instructions (pars. 48-49, 84, and Fig. 3A: system 300 may include processor 310, memory 320; can be implemented in digital electronic circuitry, or in computer software, firmware, or hardware, including the herein disclosed structures and their equivalents. Some embodiments can be implemented as one or more computer programs, i.e., one or more modules of computer program instructions, encoded on computer storage medium for execution by one or more processors) to:
the content creator offering levels of access to the online content, wherein the consumers consume the online content through computing platforms communicating with the computer system over a network (pars. 15, 18, 20, 36-38, 43, and 57: content/channel collection creator 80 may be an individual (e.g., a recording artist), a group of individuals, or an organization (e.g., a movie studio that produces trailers for upcoming movies); content/channel collection creator 80 provides primary content (content items/media objects), in the form, for example, of videos 84, which may be displayed on the Web pages 32 and viewed, heard, or otherwise perceived by the viewer 66 using the media devices; subscriber may subscribe to a channel collection, which provides the subscriber access to multiple channels, and allows the subscriber to receive automatic updates to the channel collection as channels are added and deleted from the channel collection; provides access to media objects using the Internet; viewer 66 may elect to subscribe to an entire channel collection. Alternately, the viewer may elect to subscribe to only a subset of channels in a channel collection; FIG. 3B illustrates an example media device that enables subscriptions to channel collections; Channel collections may make subscriptions easier to manage for both subscribers and for content/channel collection creators. On the one hand, if an individual wants to subscribe to, for example, all the recording artists in the top 40);
generate a recommendation based on analysis of the content creator, the analysis of the content creator determining impact of characteristics of the content creator and the online content on the consumption of the online content, the recommendation indicating creator consideration in exchange for different ones of the levels of access (pars. 27 and 51: suggest to a creator of the channel collection, channel changes to improve the affinity score of the channel collection; system 300 may provide prompts or suggestions to content/channel collection creators to add channels to channel collections [Examiner’s Note: wherein the affinity score is indicative of characteristics of the creator and content, the added content/channels represent additional access levels to new/added content, and the changes to content/channels or adding content/channels as well as the expected improvement are considerations for the creator in exchange for access to the changed or added content/channels suggested]); and
deliver the recommendation to a computing platform associated with the content creator to cause the computing platform to present the recommendation (pars. 27 and 51: system 300 [which is a computing platform] may provide prompts or suggestions to content/ channel collection creators to add channels to channel collections).
Lewis does not explicitly teach:
monitor consumption of online content created by a content creator by consumers through a computer system;
as a selectable option within a user interface of a web-based application through which the content creator manages the levels of access.
Bell teaches:
monitor consumption of online content created by a content creator by consumers through a computer system (pars. 36, 183, 185, 235: e.g., capture activity information relating to activities such as consumption of digital media including streaming audio/video, downloading audio/video; For example, if total downloads for the quarter equal 2,000,000 and total artist downloads equal 4,000 in the above-referenced example; Artists can also obtain feedback on key metrics such as radio airplay statistics, number of CDs sold, number of downloads, streams, and impressions and other information reflecting performance), and although Lewis teaches the following limitation (as discussed above), Bell similarly teaches the content creator offering levels of access to the online content, wherein the consumers consume the online content through computing platforms communicating with the computer system over a network (pars. 18, 33, 38, 190, and Figs. 1 and 5: streaming standards allowed users to select, listen to and download single tracks of music; Users have the opportunity to listen to or view fresh, exciting and challenging new movies, television content, music or internet content; Users may engage in activities and consume content provided by any of the parties participating in the shared network).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine Lewis with Bell because the references are analogous since they are each directed to computer aided features for managing electronic content subscriptions, which is within Applicant’s field of endeavor of generating subscription recommendations for online content, and because modifying Lewis to incorporate Bell’s feature for monitoring consumption, as claimed, would serve the motivation to better understand subscriber affinity for content of interest, which would aid in providing suggestions related thereto in order to improve affinity for content or a channel collection of content (Lewis at par. 27); and further obvious because the claimed invention is merely a combination of old elements, and in the combination each element merely would have performed the same function as it did separately, and one of ordinary skill in the art would have recognized that the results of the combination were predictable.
Lewis and Bell do not explicitly teach:
as a selectable option within a user interface of a web-based application through which the content creator manages the levels of access.
Curtis teaches:
as a selectable option within a user interface of a web-based application through which the content creator manages the levels of access (pars. 17-18: As an example, a channel manager may select content via a content selection webpage and may select a submit button to submit the content to subscribers; channel manager may select which subscription level to provide content to. As an example, a channel manager may opt to provide a content that costs 1 dollar to a user that has subscription value of 10 dollars and may opt to send a 12 dollar item to a user that has a subscription value of 20 dollars).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine Lewis/Bell with Curtis because the references are analogous since they are each directed to computer aided features for managing electronic content subscriptions, which is within Applicant’s field of endeavor of generating subscription recommendations for online content, and because modifying Lewis/Bell to incorporate Curtis’s selectable option within a user interface for a content creator to manage levels of access, as claimed, would provide a content creator with the ability to make subscription related changes in pursuit of improving an affinity score related to content or a channel collection of content (Lewis at par. 27), or perhaps to enable a creator to restrict/grant access to content in order to manage dissemination of exclusive content, to increase exposure, or to provide free trials of content; and further obvious because the claimed invention is merely a combination of old elements, and in the combination each element merely would have performed the same function as it did separately, and one of ordinary skill in the art would have recognized that the results of the combination were predictable.
Claim 11 is directed to a method for performing substantially similar limitations as those recited in claim 1 and addressed above. Lewis, in view of Bell/Curtis teaches a method for performing the limitations discussed above (Lewis at par. 3: method, executed on a processor; See also, Bell at Abstract: system and method; See also, Curtis at par. 30: computer-implemented processes and apparatuses), and claim 11 is therefore rejected using the same references and for substantially the same reasons as set forth above.
Claims 2/12: Lewis further teaches wherein the creator consideration comprises an amount of content provided at a level of access (pars. 27 and 51: describing creator consideration in the form of adding content and/or channels to a channels subscriber – e.g., suggest to a creator of the channel collection, channel changes to improve the affinity score of the channel collection; system 300 may provide prompts or suggestions to content/channel collection creators to add channels to channel collections).
Claims 3/13: Lewis further teaches wherein the creator consideration comprises a frequency at which the online content is made available to the consumers through the computer system (pars. 17 and 74: describing frequency based considerations for the content being made available – e.g., Individuals may subscribe to one or more channels, and using this channel structure may view videos of interest. Individuals who subscribe to specific video channels may watch more videos than viewers who only randomly view videos. Individuals who are subscribed to channels (i.e., subscribers) may watch more videos and may visit a video delivery system's Web site more frequently than individuals who are not subscribed. This more frequent video viewing behavior provides monetization opportunities for the video delivery system; For example, the channel collection could be for the current (e.g., weekly) top-40 music video channels, and as each week passes the population of the channel collection may change).
Claims 4/14: Lewis teaches wherein the creator consideration comprises…content created by the content creator (pars. 27 and 51: suggest to a creator of the channel collection, channel changes to improve the affinity score of the channel collection; system 300 may provide prompts or suggestions to content/channel collection creators to add channels to channel collections), but does not specifically teach a type of content.
Curtis teaches a consideration in relation to a type of content (par. 22: user may select a preference category along with a subscription to a channel. The preference category may define any applicable category such as a type of game (e.g., first person, numerical, point gathering, maturity rating, etc.), type of media (e.g., genre of music or videos, maturity rating, etc.)).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the combination of Lewis/Bell/Curtis such that the consideration includes a type of content, as claimed, in pursuit of improving an affinity score related to content or a channel collection of content (Lewis at par. 27), or perhaps to enable a creator to self-promote their own content such as to increase exposure and/or increase royalties; and further obvious because the claimed invention is merely a combination of old elements, and in the combination each element merely would have performed the same function as it did separately, and one of ordinary skill in the art would have recognized that the results of the combination were predictable.
Claims 5/15: Lewis teaches wherein the recommendation is further generated based on analysis (pars. 27 and 51: suggest to a creator of the channel collection, channel changes to improve the affinity score of the channel collection; system 300 may provide prompts or suggestions to content/channel collection creators to add channels to channel collections) and also teaches second content creator…created by the second content creator (claim 11: receiving a channel addition to the original channel collection, the channel addition provided by a second channel creator), but does not teach analysis of a second content creator and consumption of second online content created by the second content creator.
However, Bell teaches analysis of a second content creator and consumption of second online content created by the second content creator (pars. 172 and 250: e.g., Psychocomps showing linkage between particular categories of users' response to certain artists or tracks compared to their response to other artists and/or tracks; radio station programmer may be awarded more points or more valuable points for listening to a track by a first artist, and fewer points for listening to a track by a second artist; or the programmer may be awarded more points or more valuable points for downloading a track or predicting its likelihood of success, than for merely streaming it. Such systems thereby provide the users the opportunity to be exposed to content in order to make predictions about which content will be popular).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the combination of Lewis/Bell/Curtis such that the analysis is performed with respect to second content and consumption of second online content created by a second creator, as claimed, in pursuit of providing the ability to provide business intelligence (e.g., competitive analytics, benchmarking) to aid with decision making related to the provision of content in pursuit of goals such as to increase exposure, maximize revenue, increase royalties, or target certain consumers with content based on their preferences (e.g., to recommend similar types of content); and further obvious because the claimed invention is merely a combination of old elements, and in the combination each element merely would have performed the same function as it did separately, and one of ordinary skill in the art would have recognized that the results of the combination were predictable.
Claims 6/16: Each of Lewis and Curtis further teaches wherein the one or more physical processors is further configured by the machine-readable instructions to: customize the recommendation based on a set of preferred access levels (Lewis at par. 27: describing providing a recommendation/suggestion based on inputs including, e.g., declining subscription base [which corresponds to access level] - e.g., Channels that drop off in quality or stop publishing new content may be removed and new channels that publish content of interest to a large number of potential or existing subscribers may provide an affinity score of the channel collection based on subscriber inputs (like/dislike signals, keywords harvested from comments, declining subscription base, for example) and suggest to a creator of the channel collection, channel changes to improve the affinity score of the channel collection; See also, Curtis at pars. 13 and 17: e.g., channel manager may be a trusted source such that users that subscribe to the channel manager's channel to receive content that they consider applicable to their preferences. For example, a user that prefers to play first person action games may subscribe to a channel for which the channel manager tests and suggests entertaining first person action games).
Claims 7/17: Lewis further teaches wherein the one or more physical processors is further configured by the machine-readable instructions to: customize the recommendation based on activity preferences of the content creator (par. 27: describing recommendation customized to address affinity score, which is understood as an preference of a content creator, i.e., actions in pursuit of increasing affinity score of content/channel collection – e.g., Channels that drop off in quality or stop publishing new content may be removed and new channels that publish content of interest to a large number of potential or existing subscribers may provide an affinity score of the channel collection based on subscriber inputs (like/dislike signals, keywords harvested from comments, declining subscription base, for example) and suggest to a creator of the channel collection, channel changes to improve the affinity score of the channel collection).
Claims 8/18: Lewis does not teach the limitation of claims 8/18.
However, Bell further wherein the activity preferences comprise one or more of preferred amounts of activity, preferred frequencies at which the activity is to be engaged in, or preferred types of activity (par. 249-251: Radio station programmers typically assess their play lists on a weekly basis to determine whether to add new tracks to the program play list and how many tracks should be added; Questions may include how many new tracks the radio station programmer expects to add that week, whether a particular track fits the sound of the station and other questions).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the combination of Lewis/Bell/Curtis such that the activity preferences include one or more of amount, frequency, or type of activity, as taught by Bell, because information about creator preferences is valuable when making content provisioning decisions (See, e.g., Bell at par. 12: information regarding radio station programmer preferences is very valuable to the record promoters who are trying to obtain one of the coveted adds to the radio station play list); and further obvious because the claimed invention is merely a combination of old elements, and in the combination each element merely would have performed the same function as it did separately, and one of ordinary skill in the art would have recognized that the results of the combination were predictable.
Claims 9/19: Lewis further teaches wherein the recommendation indicates an adjustment to at least one of the levels of access (pars. 27 and 51: suggest to a creator of the channel collection, channel changes to improve the affinity score of the channel collection; system 300 may provide prompts or suggestions to content/channel collection creators to add channels to channel collections [Examiner’s Note: wherein the suggestion to change or add content/channels represents an adjustment to a level of access to consumers because different channels/content represents different access to content, e.g., adding content means that access level to content has increased]).
Claims 10 and 20 are rejected under 35 U.S.C. §103 as unpatentable over Lewis et al. (US 2015/0007235, hereinafter “Lewis”) in view of Bell et al. (US 2002/0120501, hereinafter “Bell”) in view of Curtis et al. (US 20150262266, hereinafter “Curtis”), as applied to claims 9 and 19 above, and further in view of Patterson et al. (US 2011/0321072, hereinafter “Patterson”).
Claims 10/20: Lewis, in view of Bell/Curtis, teaches the limitations of claims 9 and 19 as set forth above, but does not teach the limitations of claims 10/20.
Patterson teaches wherein the adjustment is determined based on a churn rate and/or a cycling trend associated with the consumers (par. 91: determine what changes need to be made to increase a channel's ranking For example, lower subscriber churn will usually result in a higher channel ranking A provider whose channels have high subscriber churn can view this data through the content provider evaluation module 230. The provider can then make changes that will hopefully decrease subscriber churn in future, and as a result increase their channel's ranking and revenue).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine Lewis/Bell/Curtis with Patterson because the references are analogous since they are each directed to computer aided features for managing electronic content subscriptions, which is within Applicant’s field of endeavor of generating subscription recommendations for online content, and because modifying Lewis/Bell/Curtis such that the adjustment is determined based on a churn rate, as claimed, with the motivation of increasing a ranking of the content/channels or the revenue obtained from subscriptions thereto (Patterson at par. 91); and further obvious because the claimed invention is merely a combination of old elements, and in the combination each element merely would have performed the same function as it did separately, and one of ordinary skill in the art would have recognized that the results of the combination were predictable.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure:
Zhang (US 2009/0125420): discloses subscription based delivery of electronic information, including publisher controlled format and schedule for publication of content (par. 29).
Thomas et al. (US Patent No. 8,850,490): discloses features for managing the consumption of media in an internet-based content platform.
J. Bockstedt, R. J. Kauffman and F. J. Riggins, "The Move to Artist-Led Online Music Distribution: Explaining Structural Changes in the Digital Music Market," Proceedings of the 38th Annual Hawaii International Conference on System Sciences, Big Island, HI, USA, 2005: discloses the evolving market structure related to digital music distribution, including the role of digital music retailers and services offered by recommender systems and subscription based services.
S. M. Lui, K. R. Lang and S. H. Kwok, "Participation incentive mechanisms in peer-to-peer subscription systems," Proceedings of the 35th Annual Hawaii International Conference on System Sciences, Big Island, HI, USA, 2002, pp. 3925-3931: discloses proposed features for enhancing P2P subscription model for a P2P digital content subscription community.
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 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 date of this final action.
Any inquiry of a general nature or relating to the status of this application or concerning this communication or earlier communications from the Examiner should be directed to Timothy A. Padot whose telephone number is 571.270.1252. The Examiner can normally be reached on Monday-Friday, 8:30 - 5:30. If attempts to reach the examiner by telephone are unsuccessful, the Examiner’s supervisor, Brian Epstein can be reached at 571.270.5389. The fax phone number for the organization where this application or proceeding is assigned is 571- 273-8300.
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/TIMOTHY PADOT/
Primary Examiner, Art Unit 3625
06/24/2026
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