DETAILED ACTION
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 .
Status of Claims
This office action is in response to the amendment filed on 7/21/2026.
Claims 1, 16, and 20 have been amended.
Claim 14 was canceled.
Claims 1-13 and 15-20 are pending and have been examined.
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 1-13 and 15-20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
Step 1: Claims 1-13 and 15 are directed to a method. Claims 16-19 are directed to a computer system. Claim 20 is directed to a non-transitory computer-readable medium. Thus, on their face they fall within the four statutory categories of patentable subject matter.
Step 2A prong 1:
Claims 1, 16, and 20 recite virtually identical limitations. 1 will be used as representative. Each claims additional elements will be addressed individually. The following limitations, when considered individually and as an ordered combination, are merely descriptive of abstract concepts:
Claims 1, 16, and 20:
during a listening session provided by a media providing service:
determining one or more characteristics of the listening session, including measuring latency for transferring data between the content provider and a user of the listening session;
selecting, via a selection process, a first time, relative to a media placement opportunity associated with a first media content item, for requesting a second media content item based on the one or more characteristics of the listening session, including the measured latency for transferring data between the content provider and the user of the listening session, wherein the first time is selected so as to provide sufficient time, with a predefined probability, for retrieving the second media content item;
while providing the first media content item, at the first time within the first media content item, transmitting a request, to a content provider, for the second media content item; and
retrieving, from the content provider, the second media content item.
The following dependent claim limitations, when considered individually and as an ordered combination, are merely further descriptive of abstract concepts:
Claims 2, 17
further including, in accordance with a determination that the second media content item is not retrieved before the media placement opportunity associated with the first media content item, updating the selection process, wherein the updated selection process is used for selecting a respective time relative to a media placement opportunity associated with a respective media content item, for requesting an additional media content item based on the one or more characteristics of the listening session.
Claims 3, 18
wherein the updated selection process comprises using a model to determine a minimum amount of time before the media placement opportunity associated with the respective media content item to transmit the request.
Claims 4, 19
wherein the updated selection process increases an amount of time corresponding to the respective time measured relative to the media placement opportunity associated with the respective media content item compared to an amount of time corresponding to the first time measured relative to the media placement opportunity associated with the first media content item.
Claim 5
wherein the updated selection process decreases an amount of time corresponding to the respective time measured relative to the media placement opportunity associated with the respective media content item compared to an amount of time corresponding to the first time measured relative to the media placement opportunity associated with the first media content item.
Claim 6
further including, in accordance with a determination that the second media content item is not retrieved before the media placement opportunity associated with the first media content item: providing a third media content item that was previously fetched.
Claim 7
wherein the request, transmitted to the content provider, for the second media content item includes one or more constraints.
Claim 8
further comprising, playing back the second media content item after the first media content item.
Claim 9
wherein the first media content item is in a queue of media content items, and a third media content item from the queue is played after playing back the second media content item.
Claim 10
wherein the predefined probability is greater than 98%.
Claim 11
wherein the one or more characteristics of the listening session include a region associated with a playback entity that plays back the first media content item.
Claim 12
wherein the one or more characteristics of the listening session include a playback speed of the first media content item.
Claim 13
wherein the one or more characteristics of the listening session include one or more of an indication of one or more previously presented media content items within the listening session, a length of an upcoming media placement opportunity within the listening session, a current state of a playback entity of the listening session, and/or user interaction data for the listening session.
Claim 15
wherein the media placement opportunity associated with the first media content item occurs at an end of the first media content item.
The claims provide a manner of receiving characteristics of a listening session, selecting a time relative to a media placement opportunity (ad slot – [0006]) associated with a first media content item for requesting a second media content item (advertisement – [0006]), wherein the time is selected to provide enough time with a certain probability for retrieving the second media content item, requesting the second media content item when the first time occurs, and retrieving the second content item. Thus, when considered individually and as an ordered combination, the claims embody certain methods of organizing human activity. Specifically, such activity is in the form of commercial interactions (in the form of advertising, marketing or sales activities or behaviors).
Step 2A prong 2: This judicial exception is not integrated into a practical application. The claims recite the following additional elements: server system (claim 1, 7, 14, 16, 20); streaming (claims 1, 16, 20); machine learning (claims 3, 18); playback device (claims 1, 11, 13, 14, 16, 20); one or more processors; and memory storing one or more programs, the one or more programs including instructions (claim 16); A non-transitory computer-readable storage medium storing one or more programs for execution by a computer system with one or more processors (claim 20);
The server system, playback device, one or more processors and memory storing one or more programs, the one or more programs including instructions, non-transitory computer-readable storage medium storing one or more programs for execution by a computer system with one or more processors, and machine learning are recited at a high level of generality and merely “apply it” (the abstract idea) using generic computing components ([0026], [0027]). The computing devices merely send and receive data (transmitting, retrieving, providing) or process data (determining, selecting, updating, playing). The playback device merely represents the user on the other end. Nothing in the claims improves upon technology, computers themselves, machine learning, or a technical field (See MPEP 2106.05(f)).
The occurring during “streaming” merely provides a particular technological environment (i.e. streaming) in which the abstract idea takes place. Nothing in the claims improves streaming technology or a technical field (See MPEP 2106.05(h)).
Accordingly, when considered both individually and as an ordered combination, the additional elements do not impose any meaningful limits on practicing the abstract idea.
Step 2B: The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception. Similarly, as above with regard to practical application, the additional elements when considered both individually and as an ordered combination, do not provide an inventive concept as they merely provide generic computing components used as a tool to implement the abstract idea and a particular technological environment in which it takes place.
As a result, the claims are not patent eligible.
Regarding prior art:
The examiner was unable to find a reasonable combination of references to teach each and every limitation in the context of the claimed invention. Specifically, the examiner was unable to find the following:
“selecting, via a selection process, a first time, relative to a media placement opportunity associated with a first media content item, for requesting a second media content item based on the one or more characteristics of the listening session, wherein the first time is selected so as to provide sufficient time, with a predefined probability, for retrieving the second media content item;”
More particularly, the examiner was unable to find selecting the time with a predefined probability for providing sufficient time for retrieving the second media content item, for example, requesting the time within 5 seconds of the ad break having a 99% chance of arriving in time.
The closest prior art found is Wen et al (US 9,420,351). Wen teaches pre-fetching online content items, such as advertisements, for insertion into ad breaks. Wen adjusts the pre-fetch point (i.e, the time for requesting the content) based on determined network latency. While Wen does teach selecting a time based on characteristics of a listening session, Wen does not teach selecting the time (pre-fetch point) within a predetermined probability for retrieving the content within sufficient time. The examiner was unable to find any reference that considered selecting time with any consideration as to the probability it would arrive in sufficient time for the placement opportunity.
Ma et al (US 2014/0150019) teaches client side pre fetching of advertisements upon detecting upcoming ad placement opportunities in streaming content. Metadata in the stream signals the upcoming break so the client can pre fetch content.
Einarsson et al (US 2017/0048565) teaches client side ad insertion in live streaming where the client detects an ad break indicator and determines whether there is enough time to pre-fetch, prep, and play one or more replacement advertisements before the end of the current ad period. It factors in latency, encoding speed, and duration to determine pre-fetching feasibility.
Parks (US 2020/0128284) teaches providing a minimum lead time for retrieving digital content for a video stream. Ad tags are provided in the stream and the minimum lead time is used to ensure that the content can be delivered in a timely manner.
Yang et al (US 8,566,867) teaches determining a lead time for requesting or prefetching ads in a live streaming session. The prefetching of ads is staggered for various client requests as not to overburden servers and thus ensure the ads are ready in time for seamless insertion.
Hutchinson et al (US 10,547,522) teaches modeling service calls with decision logic to select when to pre-start services so they are ready when needed.
Response to Arguments
With regard to arguments under 35 USC 101 the examiner respectfully disagrees. The invention is directed to delivering advertisements in enough time that they can be played without disruption. Thus, the claims are directed to commercial interactions in the form of advertising and marketing. This is not necessarily a technical problem nor is it a technical solution. This is merely the concept of determining how long it takes to send someone something and making sure it gets there before it is needed. Applicant is merely performing this in a streaming environment. This problem exists is a wide variety of areas including any that require lead time such as manufacturing, healthcare, construction, etc. This even exists in other advertising areas, for example obtaining content to place on a billboard prior to the date in which it is to be put up. Further, the solution is not a technical solution. Applicant merely determines how long it generally takes to send the information, assigns a probability to it arriving on time, and then sends it such that it will likely arrive on time. Applicant argues this is not a business rule governing advertisement, however, the examiner finds that is precisely what it is. Applicant is merely performing this activity in a streaming environment. Applicant provides no specific technique or meaningful details as to how the latency is measured. This could literally be a simple as someone counting out loud how long it takes to arrive.
With regard to practical application, the examiner respectfully disagrees. The alleged improvement is to the business idea itself, not under lying technology. As a result, such rejection has been maintained.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHRISTOPHER STROUD whose telephone number is (571)272-7930. The examiner can normally be reached Mon. - Fri. 9AM-5PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Waseem Ashraff can be reached at (571) 270-3948. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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CHRISTOPHER STROUD
Primary Examiner
Art Unit 3621
/CHRISTOPHER STROUD/Primary Examiner, Art Unit 3621
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