DETAILED ACTION
This Office Action is in response to Applicant's response to restriction on 27 February 2026. Currently, claims 1-20 are pending. The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Election/Restrictions
Applicant's election with traverse of claims 1-10, 17-20 in the reply filed on 2/27/26 is acknowledged. The traversal is on the ground(s) that that searching for all of the alleged inventions simultaneously would not place undue burden on the Examiner because the allegedly distinct inventions recite related features and/or functionalities such that searching for all of the alleged inventions simultaneously would not place undue burden on the Examiner. This is not found persuasive because the analysis for 101 is an extra burden and because search and considering “generating a recommendation based upon one or more correlations between indicia characterizing successful realization of support of the content creator and characteristics of the content creator and/or the online content created by the content creator, the recommendation describing one or more ways to enhance an ability of the content creator to create the online content and/or increase the support” is an undue burden that would require significant additional examination by the examiner.
The requirement is still deemed proper and is therefore made FINAL.
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 1-10, 17-20 are clearly drawn to at least one of the four categories of patent eligible subject matter recited in 35 U.S.C. 101 (system and method). Claims 1-10, 17-20 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. Claims 1 and 17 recite the abstract idea of generating a recommendation by monitoring subscribership of a content creator and generating a recommendation based on analysis of results of one or more interactions between the content creator and one or more of the consumers, the analysis of the results indicating how a future interaction will impact the subscribership of the content creator, wherein the recommendation is to either perform the future interaction if the future interaction is determined to have a positive impact on the subscribership, or to avoid the future interaction if the future interaction is determined to have a negative impact on the subscribership. The claims are directed to a type of recommending actions to engage with consumers. Under prong 1 of Step 2A, these claims are considered abstract because the claims are certain methods of organizing human activity such as certain methods of organizing human activity such as commercial actions (business relations and marketing and sales). Applicant’s claims show organizing human activity because the generated recommendations are interactions (human activity) that is associated with sales, business and marketing. Under prong 2 of Step 2A, the judicial exception is not integrated into a practical application because the claims (the judicial exception and any additional elements individually or in combination such as one or more physical processors configured by machine-readable instructions to perform steps and the subscribership being managed a server maintaining online content created by the content creator, wherein consumers access the online content through consumer computing platforms accessing the server over a network and delivering the recommendation over the network to a computing platform of the content creator to cause the computing platform to present the recommendation within a dashboard of a webpage associated with the content creator are not an improvement to a computer or a technology, the claims do not apply the judicial exception with a particular machine, the claims do not effect a transformation or reduction of a particular article to a different state or thing nor do the claims apply the judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment such that the claims as a whole is more than a drafting effort designed to monopolize the exception. These limitations at best are merely implementing an abstract idea on a computer, or merely uses a computer as a tool to perform an abstract idea - see MPEP 2106.05(f). Under Step 2B, the claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the additional elements individually or in combination such one or more physical processors configured by machine-readable instructions to perform steps and the subscribership being managed a server maintaining online content created by the content creator, wherein consumers access the online content through consumer computing platforms accessing the server over a network and delivering the recommendation over the network to a computing platform of the content creator to cause the computing platform to present the recommendation within a dashboard of a webpage associated with the content creator (as evidenced by para [0031], [0035]-[0039], [0042]-[0050], [0081] of applicant’s own specification) are well understood, routine and conventional in the field. Dependent claims 2-9, 18-20 also do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the additional elements either individually or in combination are merely an extension of the abstract idea itself by further showing wherein the subscribership is characterized by revenue-related performance and wherein the subscribership is characterized by one or more of a new subscription creation rate, a subscriber retention rate, or a subscriber churn rate and determine a first impact on the subscribership from a first interaction, and a second impact on the subscribership from a second interaction and wherein the first interaction is characterized by historical instances of the first interaction and wherein the first interaction is a creator initiated interaction and determine one or more factors present in the first interaction contributing to the first impact and wherein a factor is related to a timing of the first interaction and classify the one or more factors as one or more triggers to perform the future interaction and codify the first impact, the one or more factors, and the one more triggers into one or more rules.
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 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); 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 nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-10, 17-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. U.S. Patent N. 12,026,652 view of Brandstetter et al. (US 2011/0191246 A1). The claims of the patent do not explicitly recite, but Brandstetter teaches, in a similar environment: the content creator offering subscribership to the consumers, (para. 128, a participant 301 can offer one or more licensing packages 204 to an audience member 306 (e.g., a audience). In this example, participants 301 can include a content provider such as anyone offering a license for content (e.g., a filmmaker or a distributor), or anyone participating in the creation of the content (e.g., actors, writers, or directors)); and to cause the computing platform to present the recommendation within a dashboard of a webpage associated with the content creator, (para. 117, If the users want to obtain even information about the item, they can click on a designated link on the posted page or ad, which link will take the user to a web page that interfaces with server 101. Or, alternatively, the users may the users may interact with server 101 via a dedicated website created by the content creator that is "powered by" server 101. That is, server 101 can market and distribute media content to users via content creator-defined interfaces).
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
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.
Claims 1-10, 17-20 are rejected under 35 U.S.C. 103 as being unpatentable over Smith et al. (US 2008/0250035 A1).
Claims 1 and 17:
Smith, as shown, discloses the following limitations of claims 1 and 17:
A system configured to generate and deliver a recommendation, the system comprising: one or more physical processors configured by machine-readable instructions (see para [0191], showing equivalent computing components and functionality) to: monitor subscribership of a content creator (Fig. 1, showing analytics for subscriber that can be accessed via user interface with the content management platform),
the subscribership being managed a server maintaining online content created by the content creator, wherein consumers access the online content through consumer computing platforms accessing the server over a network (see para [0052]-[0053], "Referring to FIG. 1, a content management platform 102 may comprise a feed engine 104, content transformation technologies 108, content publishing 110, editorial creation and management 112, and content delivery 114. A feed engine 104 may receive and process feeds for content delivery 114 to a plurality of channels. Feeds may be national, such as and without limitation, a weather feed from The Weather Channel, a sports feed from Stats, Inc. or TSN, a lifestyle feed from HGTV, and the like. Feed formats may be an RSS feed, an XML feed, an Atom feed, and the like. Feeds may be processed for delivery to mobile devices. For example, to retrieve a text-only feed on a cellular phone, content may be transformed from XML to xHTML, WAP, or the like. In an embodiment, the content management platform 102 may use a feed engine 104 to provide control of the content being provided to the plurality of channels. The feed engine 104 may utilize a content publication service to organize content received from content contributors, provide edited content version control, distribute the content to the appropriate channel, or the like. In an embodiment, the content publication service may provide import and creation of content material, identification of all key contributors and their content roles, assignment of roles and responsibilities to different content contributors, definition of the content workflow tasks, tracking and management of multiple versions of a single content, publication of content to a repository to support access to the content, textual aspect information of content, or the like. In an embodiment, the content may be published to users as SMS text, premium-rated short messages (PSMS), binary, or the like. In the case of binary, the content may be transmitted as binary to take advantage of the transmission speed of binary and the user's mobile device may convert the binary to textual content." and see para [0187], " Referring now to FIG. 2, a system for mobile media services may comprise inbound content 202, customer acquisition 218, content management 230, subscription management 240, connectivity 252, and mobile subscribers 264. Inbound content 202 may be provided by content providers 204, managed content 208 developed over a CMS user interface 210, and user generated content 212 developed over a user generated content gateway 214. Content management 230 may be facilitated by feed processing 232, content management 234, and content transformation 238. Customer acquisition may be online 220 through a dynamic advertising platform 222 or via a mobile 224 process, such as an SMPP gateway 228. Subscription management 240 may comprise subscriber management 242, content targeting 244, ad integration 248, and billing 250. Content management 230 is associated with subscription management 240. Subscription management 240 is associated with mobile connectivity 252. Connectivity 252 comprises command interpreter 254, SMS/MMS 258, SMTP/WAP 260, and IVR 262. Mobile subscribers 264 interact with the system through connectivity 252." and Fig 2.); and
generate a recommendation based on analysis of results of one or more interactions between the content creator and one or more of the consumers (see para [0153], "Analytics 158 may be associated with subscription management 140. For example, user interaction with content and footers may be tracked on a channel-by-channel basis. Information obtained from these analytics 158 may be used to refine content and ad targeting.", where ad targeting can be considered a recommendation given broadest reasonable interpretation and see para [0163], "In an embodiment, the server-side management facility 160 may track user interaction information to provide for a customized user experience, measure user activity, predict user activity, or the like. The user experience may be customized by analysis of the user's activities to determine the type of content the user may be accessing the most. With this information, the user may be provided with content that may more consistently interest the user. The information may also be used to predict the user's future content access activity; the predicted activity may provide information to set advertisement rates, determine which content to provide, determine which content to eliminate, or the like. This information may be used to make suggestions to users. For example, the information may be used to suggest other venues to a user or other users with similar user profiles."), the analysis of the results indicating how a future interaction will impact the subscribership of the content creator, wherein the recommendation is to either perform the future interaction if the future interaction is determined to have a positive impact on the subscribership, or to avoid the future interaction if the future interaction is determined to have a negative impact on the subscribership (see para [0163], "In an embodiment, the server-side management facility 160 may track user interaction information to provide for a customized user experience, measure user activity, predict user activity, or the like. The user experience may be customized by analysis of the user's activities to determine the type of content the user may be accessing the most. With this information, the user may be provided with content that may more consistently interest the user. The information may also be used to predict the user's future content access activity; the predicted activity may provide information to set advertisement rates, determine which content to provide, determine which content to eliminate, or the like. This information may be used to make suggestions to users. For example, the information may be used to suggest other venues to a user or other users with similar user profiles." where it is obvious to one of ordinary skill in the art that providing content that is of interest to the user is a positive impact and determining content to eliminate shows interactions to avoid); and
deliver the recommendation over the network to a computing platform of the content creator to cause the computing platform to present the recommendation within a dashboard of a webpage associated with the content creator (see para [0137], "Content targeting 148 may comprise querying a user profile or a database of past interactions, subscriptions, transactions, and the like for behavior and information that may facilitate content targeting 148. For example, if a user may have a high score in trivia 132 related to science, a Discovery Channel feed may be suggested to the user. The suggestion may be via an SMS, phone call, voicemail, e-mail, page, and the like." and see para [0168]-[0169], "In an embodiment, the social networking channels to which the user connects may modify the user profile. Depending on the social channels (e.g. trivia, sports, hobbies) for which the user receives content, the user may receive suggestions on new channels to which to connect. If a user selects to view the suggested channel, a user profile may be modified to reflect the selection. In an embodiment, the profile facility may aggregate the social networking channel information for user profiles to determine user profile modification suggestions. In an embodiment, a user location or behavior may modify a user profile. In an embodiment, if a user location may be determined (e.g. GPS phone), the user location may be recorded and aggregated to determine suggested changes to a user profile. For example, if it is determined that a user frequently visits a certain restaurant or restaurant type the profile facility may send the user content suggesting channel content related to similar restaurants. If the user selects the suggested channel content, the user's profile may be modified to reflect the new selected content. Profile creation and management 162 may facilitate real time user generated content. For example, users may `thumbs up` their current location for the evening and others may see popular venues or events for the evening based on these real time ratings.").
Claim 2:
Further, Smith discloses the following limitations
wherein the subscribership is characterized by revenue-related performance (see para [0186], " In an embodiment, there may be a web-based analytics facility that may provide the host with aggregated information such as type of content provided, advertisements provided, revenue stream from advertisements, revenue stream from subscriptions, content publishing routing, or the like. The analytics may be provided to the host in real time, as historical information, or the like. For example, the content publishing routing may be provided to the host in real time and the host may be able to revise publishing routes to resolve slow transmission routes.")
Claim 3:
Further, Smith discloses the following limitations:
wherein the subscribership is characterized by one or more of a new subscription creation rate, a subscriber retention rate, or a subscriber churn rate (see para [0065], "The content management platform may also include an affiliate program where content providers are provided with revenue to produce content. The user may be provided revenue by the type of content, the amount of content (e.g. page or word count), as a fixed amount, or the like. Additionally, content providers may receive revenue based on new subscribers signing up for content publishing. Upon signup, the new subscriber may be tracked to a particular channel, a particular content provider, or the like and increased revenue may be provided to the content provider when new subscribers are associated with the content provider's channel.")
Claims 4, 7 and 18:
Further, Smith discloses the following limitations:
wherein the one or more physical processors are further configured by the machine-readable instructions to determine a first impact on the subscribership from a first interaction, and a second impact on the subscribership from a second interaction (see para [0096], "In an embodiment, the content publication service may advertise for users using mobile pay-for-performance where advertisements are paid at a rate in which they attract users to subscribe to the content publication service. Additionally, the content publication service may use hybrid analytics to allow placement of advertisement in locations that match user website visitations with user profiles to provide more directed advertisements." where it is obvious that the different advertisements and interactions have different impacts and thus have different rates)
wherein the one or more physical processors are further configured by the machine-readable instructions to determine one or more factors present in the first interaction contributing to the first impact (see para [0163], where the user activities can be considered the factors present)
Claim 5:
Further, Smith discloses the following limitations:
wherein the first interaction is characterized by historical instances of the first interaction (see para [0114], " Additionally, the subscription management system may be able to track routing information of content to a user. In an embodiment, the subscription management system may aggregate historical routing information for certain periods of the day, provide real time routing information, provide information regarding routing rates by mobile device provider, provide information regarding routing rates by user, or the like. In an embodiment, the routing information may be used to make long term adjustments to the publishing of content to the user or real time adjustments in the routing.").
Claim 6:
Further, Smith discloses the following limitations:
wherein the first interaction is a creator-initiated interaction (see para [0053], "the content management platform 102 may use a feed engine 104 to provide control of the content being provided to the plurality of channels. The feed engine 104 may utilize a content publication service to organize content received from content contributors, provide edited content version control, distribute the content to the appropriate channel, or the like. In an embodiment, the content publication service may provide import and creation of content material, identification of all key contributors and their content roles, assignment of roles and responsibilities to different content contributors, definition of the content workflow tasks, tracking and management of multiple versions of a single content, publication of content to a repository to support access to the content, textual aspect information of content, or the like. In an embodiment, the content may be published to users as SMS text, premium-rated short messages (PSMS), binary, or the like. In the case of binary, the content may be transmitted as binary to take advantage of the transmission speed of binary and the user's mobile device may convert the binary to textual content.").
Claims 8 and 20:
Further, Smith discloses the following limitations:
wherein a factor is related to a timing of the first interaction (see para [0169], where the frequency of the visits can be considered a timing factor given broadest reasonable interpretation).
Claims 9-10 and 19:
Further, Smith discloses the following limitations:
wherein the one or more physical processors are further configured by the machine-readable instructions to classify the one or more factors as one or more triggers to perform the future interaction (see para [0062], "Another example of content publishing may be information publishing such as weather information, as in FIG. 8. The user may receive or request weather information; the user may be sent default information such as current conditions, the weekend weather, the five day forecast, the boating forecast, severe weather forecast, or the like. Similar to the other described published content; the user may be presented with user inputs allowing the user to select the type and frequency of information to receive. With the structured narrative approach, content may comprise a response element as pushed messages are designed to begin conversations and extend in directions that the user specifies. For example, referring now to FIG. 8, a weather forecast may be delivered daily 812. The weather forecast may include a sentence requesting a response, such as "Reply `C` for current conditions". If the user replies with `C`, a message with current conditions may be delivered to the user. If no reply is sent, no further messages may be delivered.")
wherein the one or more physical processors are further configured by the machine-readable instructions to codify the first impact, the one or more factors, and the one more triggers into one or more rules (see para [0067], " User ranking of content may also influence publishing of content. In an embodiment, when content is published to a user, the user may also be sent input options to rank the content. The received user rankings of the content may be stored in a database, table, file, spreadsheet, or the like to allow for aggregating of the ranking information for the different content channels, individual contents, or the like. The ranking the content may receive from the users may influence the future content, future transmission of the content, the format of the content, the revenue provided to the content provider, or the like." and see para [0137], "Content targeting 148 may comprise querying a user profile or a database of past interactions, subscriptions, transactions, and the like for behavior and information that may facilitate content targeting 148. For example, if a user may have a high score in trivia 132 related to science, a Discovery Channel feed may be suggested to the user. The suggestion may be via an SMS, phone call, voicemail, e-mail, page, and the like." and see para [01555], "In an embodiment, there may be a table, database, file, or the like to record the transmitted content with the user and to track the user transmitted responses to map the user responses to the transmitted content. Using the response map, the proper next content may be transmitted to the user.")
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Shackleton et al. (US 2018/0220167 A1), a system for tracking activities following a view of a sponsored video content item that includes determining that a user has been presented a sponsored video content item; tracking specific activities after the presentation including identifying activities of the user in a channel associated with the sponsored video content item in a specified time period and attributing the specific activities to the presentation of the sponsored video content item; and surfacing the specific activities to a sponsor of the sponsored video content item
Oren et al. (DE 112016002225 T5), method for estimating the active participation of audience members in content or distinguishing between users consuming content and users who have been distracted or have left the room and where user presence or attention can be estimated based on user interaction with content or skipping content and user interactions are either compared with high-quality participation data from small audience measurement panels or extrapolated on the basis of a temporal investment curve
Wu "YouTube Marketing: Legality of Sponsorship and Endorsement in Advertising", a paper discussing an urgent need to increase transparency for YouTube endorsement marketing and that YouTube should promote a uniform standard of disclosure and contrary to the argument that disclosures would undermine the effectiveness of marketing, the paper argues that proper disclosure will not only foster viewers’ trust in content creators but will also promote consumer goodwill
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SUJAY KONERU whose telephone number is 571-270-3409. The examiner can normally be reached on Monday-Friday, 9 am to 5 pm.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Patricia Munson can be reached on 571- 270-5396. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/SUJAY KONERU/
Primary Examiner, Art Unit 3624