12:01 Tuesday

Walmart's Old Mother Hubbard Patent

"And when she got there, the cupboard was bare..."

I didn’t grow up with Walmart.  As I wrote six years ago (to the day!), Meijer was more than enough Big Box for us.  In fact, the full Walmart still isn’t allowed in Chicago, though there is an urban “Walmart Express” a few blocks from my house.  But everyone knows that Walmart has been the nation’s (and world’s) largest retailer for years.  Its annual U.S. revenues ($334B in 2014) are over three times as large as second-place Kroger.  Stories about Walmart’s efficiency are legendary, and fill volumes of business school case study texts.

Ironically, Walmart’s operations have been viewed as actually being too lean. In-store merchandise hasn’t been getting replenished because, even though Walmart is the world's largest private employer, it “doesn’t have enough bodies to restock the shelves.” As a result, customers have been leaving.

Looking at today's patent issuance, perhaps Walmart is considering a new approach to address this problem: crowdsourcing. 

U.S. Patent No. 8,9996,413 Techniques for detecting depleted stock Assignee: Wal-Mart Stores Inc. Filed: December 28, 2012 Issued: March 31, 2015 1. A computer-implemented method comprising: receiving, by a processing device of a commerce server, a video signal from a head mountable unit worn by a human customer shopping in a retail store; identifying, by the processing device within one or more images corresponding to the video signal, an area of depleted stock in the retail store; and a geometric figure positioned so that the geometric figure is exposed to view as a stock of a particular product sold within the retail store is depleted; transmitting, by the processing device, a restock signal in response to said identifying step.

Commentary: So Walmart wants its customers (a/k/a, the People of Walmart) to wear special glasses while they shop.  When the customer looks at an empty shelf, the glasses see a bar code or QR code (that’s the exposed “geometric figure”), and send a “restock signal” for the item.  

The patent doesn’t say anything about incentives for customers to participate, though.  Maybe it’s a discount at the register?  Loyalty points?  Or some other promotion that costs it less than its famed non-union wages?  (On a related note, maybe Walmart should consider paying customers to return shopping carts from the parking lots, to save labor costs and avoid potentially dangerous situations.) 

As for the validity of the claims, I’ll avoid commenting on possible obviousness regarding things like hand scanners and barcodes for inventory control.  It’s the Alice question that is of interest here.  After an initial rejection, the examiner added a 101 rejection in July 2014 citing Alice, finding the claims:

    a) were directed to an abstract idea; and
    b) included “no meaningful limitations…that transform the abstract idea into a patent eligible application such that the claims amount to significantly more than the abstract idea itself.”

In response, Walmart amended the claim element as shown above, from:

• “Identifying…an area of depleted stock in the retail store”

to 

• “identifying…a geometric figure positioned so that the geometric figure is exposed to view as a stock of a particular product sold within the retail store is depleted.” 

Walmart argued this single change to the claim “highlight[s] features that render the recited invention significantly more than an abstract idea.”  The Examiner then agreed without additional comment, and allowed the claim.

It’s not entirely clear if the allowance was under the first or second prong of Alice.  Did Walmart’s response give up that the invention was actually directed to an abstract idea?  Regardless, it was apparently clear to this Examiner that the use of a “head mountable unit” that sends a video signal wasn’t enough to get past Alice here, yet adding a simple barcode sticker on a shelf did the trick. 

Old Mother Hubbard may have pre-dated Lewis Carroll by a few decades, but she seems to be at home in the Wonderland of 101 now.

Alice Flyover

Alice Lesson #14: If possible, add an airplane to your claims.

U.S. Patent No. 8,965,812 Evaluating commodity conditions using aerial image data Assignee: Archer Daniels Midland Co. Issued: February 24, 2015 1. A method for evaluating the condition of an agricultural commodity and forecasting the production thereof in a geographical region of interest, the method comprising: identifying one or more geographical regions of interest, wherein the geographical region of interest comprises a plurality of different locations that historically have been sites for production of the agricultural commodity; obtaining an aircraft equipped with an image data acquisition system capable of collecting data; tasking an aircraft to fly along a travel route that is developed so that the aircraft travels across the regions of interest wherein the travel route is based on the consideration of historical data regarding production of a specified crop in one or more of the regions of interest; tasking the aircraft to fly along the travel route over the plurality of different locations and having the aircraft collect a plurality of sequential image data over the plurality of different locations crossed over by the travel route; using an image processing device to analyze the collected image data to determine at least one of a type and a condition of one or more commodities in the geographical region of interest; and forecasting the production of the agricultural commodity in the geographical region of interest based on the determined type and condition.

Commentary: "Enough is enough! I have had it with these m--------ing claims on these m--------ing planes!" Following a post-Alice rejection in September 2014, ADM added the bold language, which persuaded the examiner.  Here is the successful argument:

Figure 3 of the patent illustrates the winning formula: 

 

My suggestion to those trying to patent hedging algorithms, insurance calculators, automated bingo games, or any other 'business method' that has fallen victim to Alice: do it in the air. Remember - we've seen some success up there before.

Wonderland

IBM and the Art of Arbitrary Application of Abstractness

Quiz: Which of the two following IBM claims do you think is more “abstract”? Which one do you think the BPAI sua sponte rejected under Section 101?

A. A computer-implemented method of responding to a problem condition, comprising: automatically detecting availability of a first candidate to respond to a problem condition; responsive to the detecting: automatically assigning responsibility for the problem condition to the first candidate; and receiving a confirmation from the first candidate indicating acceptance of responsibility for the problem condition.

B. A method for integrating file system events into a database management system (DBMS), comprising: designating a file of interest; detecting a file state change event associated with the file of interest; updating a file events table of a database upon a detection of the file state change event; generating a database trigger upon a change in the file events table; and updating the database with data from the file of interest upon receipt of the database trigger.

Commentary: On the surface, claim (A)’s “computer-implemented” preamble pays some lip-service to concreteness, but otherwise includes only apparently abstract concepts of “candidates,” “problems” and “responsibilities.” Meanwhile, claim (B) includes a somewhat 'particular' “DBMS,” a “database” and “file events.” Easy, right?

But as you might expect with non-precedential decisions (as all but a handful of BPAI cases are), outcomes can be very panel-specific and leave you scratching your head. Here, the Board said nothing regarding the patentability of claim (A)'s subject matter, while reversing a 102 rejection. Ex parte Herbeck.

Only two weeks earlier, in Ex parte Vishnubholta, a different three-member panel affirmed a 102 rejection for claim (B), but added a new rejection under 101. In particularly strong language, the Board found

"[T]he claim fails to recite a machine or transformation of an article of manufacture…Rather, [the claim elements and limitations] are merely abstract ideas that comport with the teachings of Bilski."

Adding insult to injury, the Board went even further, finding that

"[T]here is not even a machine or transformation recited in independent claim 1 that would have qualified as 'insignificant extra-solution activity.'"

In the NFL, this behavior might warrant a 15-yard penalty for taunting the sacked quarterback.

Perhaps the Board was trying to demonstrate the breadth of 101 rejections: in addition to the Bilski rejection for abstractness, the panel also rejected a Beauregard claim under Nuijten for including "signal waves", and affirmed the rejection of a system claim as "software per se" under Warmerdam. Three claim types; three demises under 101.

While another precedential BPAI decision on abstractness could be immensely helpful in the wake of Bilski, if that decision is anything like Vishnubholta, it could signal a tough road for many software patents.

Bull in Bilski's China Shop: B of A's Financial Instrument

In the previous blog post, we examined a claim to a "financial instrument" by Excel Ventures that appeared to slip through to issuance.

With incredible timing, the Board of Patent Appeals and Interferences last week looked at a set of claims with an eerily similar feel:

Ex Parte Birle Application 10/064,745 Assignee: Bank of America [Merrill Lynch] 10. A financial instrument issued by a stock company and held by a holder, shares of stock of the company trading at a price, the instrument having a market price, the instrument comprising: a provision obligating the company to repay the principal according to a predetermined term; a provision making the instrument convertible into a predetermined number of shares of stock of the company at a predetermined conversion price; a provision obligating the company to make a payment to the holder with respect to passage of a time interval in the event the market price of the instrument is in a predetermined relationship to an accreted value thereof, the accreted value defined as the issue price of the instrument plus an economic accrual of a portion of a difference between the issue price and the principal amount at maturity.

Deja vu? Can one really make a distinction between this claim and Excel's with respect to the patentability of its subject matter?

Merrill's appeal brief, filed in 2007, argued by analogy to Beauregard claims:

For many years, Examiners routinely rejected claims direct to computer-readable media containing novel and unobvious content, but these refusals stopped after In re Lowry. Since that time, Examiners have been directed not to reject claims to such computer-readable media, as discussed for example at MPEP section [2106.01]: "When functional descriptive material is recorded on some computer-readable medium, it becomes structurally and functionally interrelated to the medium and will be statutory in most cases since use of technology permits the function of the descriptive material to be realized." By analogy, when functional descriptive material, such as the material set forth in the present rejected claims, is recorded on a "financial instrument" or an "offering document," it likewise "becomes structurally and functionally interrelated to the medium and will be statutory in most cases." Use of the financial instruments or offering documents "permits the function of the descriptive material to be realized."

The BPAI, armed with the Supreme Court's Bilski opinion, was unpersuaded:

We agree with the Appellants that the recitation of a “financial document” and an “offering document” does not automatically cause the claimed invention to be nonstatutory. However, with the exception of the recitation in the preamble of the claims of a “financial instrument” or “offering document,” all the elements of the claims relate to a mental concept or an abstract idea of how to make money. In this regard, the claims relate to an idea related to a financial arrangement between a stock company and a holder of shares of the stock. The claims recite various ways that a holder of shares of stock can make money by, for instance, receiving principal paid according to a predetermined term, receiving a share of stock of a company and receiving money in accordance with an accredited value. In this way, the claims recite a way of converting money paid to a company for value in terms of shares of stock, or accredited value. It is merely an abstract idea of how to make money. Moreover, the claims cover any known and unknown use of the concept. The steps could be performed by any machine, existing or futuredevised. Furthermore, the processes as claimed could be accomplished by human activity alone, including through mental processes. In the words of Gottschalk v. Benson, 409 U.S. 63, 72 (1972), the claimed processes “would wholly pre-empt the [payment to a holder with respect to passage of a time interval] and in practical effect would be a patent on the [concept] itself.” The recitation in the preamble of a “financial document” or an “offering document” does not convert the otherwise nonstatutory subject matter to statutory subject matter. First, as the recitations are in the preamble of the claims and do not appear in the body of the claim, the recitation of a “financial instrument” or an “offering document” is introductory language that does not breath life and meaning into the claims. Therefore, this introductory language does not limit the scope of the claims. In re Pearson, 494 F.2d 1399, 1403 (CCPA 1974); Gerber Garment Tech., Inc. v. Lectra Sys., Inc., 916 F.2d 683, 688 (Fed. Cir. 1990) quoting Perkin- Elmer Corp. v. Computervision Corp., 732 F.2d 888, 896 (Fed. Cir. 1984), cert. denied, 469 U.S. 857 (1984). Second, the recitation of a “financial instrument” and an “offering document” in the preamble fails to make the claims statutory subject matter because the prohibition against patenting abstract ideas “‘cannot be circumvented by attempting to limit the use of the formula to a particular technological environment’ or adding ‘insignificant postsolution activity.’” Bilski v. Kappos, 130 S. Ct. at 3230 (citing Diamond v. Diehr, 450 U.S. 175, 191-92 (1981)). Thus, limiting the implementation of what would otherwise be mental steps or abstract ideas to a “financial instrument” or an “offering document” is insufficient to place the claims into the realm of patentable subject matter under 35 U.S.C. § 101. We, therefore, affirm the Examiner’s rejection.

The story is not over, however; because the Board's rationale differed from the Examiner's, it denoted this as a new ground of rejection, thus reopening prosecution.

It will be interesting to see how B of A amends and argues to navigate through the china shop.

Poster Child

It's been a long time since we've seen one like this.

U.S. Patent No. 7,818,225 Financial instrument and related business method Assignee: Excel Ventures LLC, Schenectady, NY Issued: October 19, 2010 1. A financial instrument of an entity, said financial instrument comprising: a conventional investment instrument; a penalty feature added to the conventional investment instrument; and a dividend feature added to the conventional investment instrument, said penalty feature characterized by a penalty assessed against a holder of at least one share of the financial instrument who sells the at least one share on a date of sale that precedes an extinguish date associated with the financial instrument, said dividend feature characterized by a dividend adapted to be distributed, on a date subsequent to the date of sale, to all Holders of Record of the financial instrument on the date of sale, said dividend being derived from said penalty, said financial instrument adapted to be acquired by a plurality of investors.

Commentary: Not sure there's much to say, other than that this claim was rejected under Bilski in November 2009. Here's the argument that won over the Examiner:

"Applicants respectfully contend that the machine-or-transformation test set forth by the Federal Circuit in In re Bilski applies only to method claims and thus not to claims 1-20 which are not drawn to a method."

The Examiner then allowed the claim on June 14, 2010 -- two weeks before the Supreme Court reaffirmed "the unpatentability of abstract ideas."

Perhaps this is the financial "instrument" that is to be used to "physically transform" the "lumpy cash flows" in U.S. Patent No. 7,451,104.

Sign of the Times: Topps' Method of Trading Baseball Cards

The small pharmacy a mile from my childhood house was a frequent summer bicycle destination for me growing up. That's where my friends and I would go to buy packs and packs of Topps' baseball cards. I still remember opening a wrapper in 1978 to find a Pete Rose--while he was in the middle of his 44 game hitting streak. I hear that card in mint condition might fetch 20 dollars. (Mine--now bent and missing corners--maybe gets a buck.)

So it was nice to see a few weeks ago that Topps obtained its first utility patent in almost seven years (only its sixth utility patent in 30 years). Moreover, this is Topps' first patent that has nothing to do with chewing gum or candy -- it's...get this...a business method patent:

U.S. Patent No. 7,797,194 Method and apparatus for offering for sale collectibles on primary and secondary markets Assignee: The Topps Company, Inc. Issued: September 14, 2010 1. A method of facilitating an issuer of collectibles to manage an offering of collectibles for sale, each of the collectibles having a predetermined condition, said method comprising the steps of: a) initially offering for sale the collectibles to potential purchasers for a period of time set by the issuer; b) receiving orders from the ordering potential purchasers; c) allocating the offered collectibles among selected of the ordering potential purchasers; d) facilitating steps a), b) and c) by a programmed computer; and e) maintaining the condition of the collectibles during steps a), b) and c), whereby the allocated collectibles are of the predetermined condition and the issuer may guarantee the condition of the allocated collectibles, wherein step b) offers an initial offering of collectibles, and there is further included the step of offering for sale selected of the allocated collectibles on a secondary market at the direction of the purchasers of the allocated collectibles.

Commentary: Great. I suppose this means that my kids may not be trading actual baseball cards: instead, they'll be trading futures in baseball cards. Then again, if "personal seat licenses" are now the norm for ticket holders, then why not introduce children to similar concepts early on, right? At least it gets them to think of these cards as the investments they really are, rather than just things to put in your bike spokes so they will make cool ratchety noises. (Sorry, Pete.)

Of course, there's one immediate shortcoming, in my opinion. The patent talks about an "IPO" for a card ("Initial Player Offering") and buying multiple cards for players expected to increase in value (e.g., you may want to buy many Derek Jeter cards "if you believe that Derek Jeter will become the best shortstop of all time," says the patent). That's a great tool to teach kids about buying and holding stocks, but what about selling short? There's apparently nothing in Topp's system that allows me to sell you the Stephen Strasburg card I don't have.

No formal drawings. Even the figures look like they were drawn by 11-year olds.

Bilski. Does this even need mentioning? Actually, the Examiner did reject several claims for failing machine-or-transformation, but other claims somehow survived. Given the recent PTO's recent pronouncements on interpreting KSR, however, I'd think that step d) here might not overcome an obviousness rejection.

Seven Appeal Briefs, No BPAI Decision. The claims in Topps' patent application were given their first final rejection in 2001. But as hard as Topps tried to appeal those rejections, it just couldn't make it up to the Board. The first two attempts resulted in the examiner reopening prosecution with new grounds of rejection. Then there were two defective briefs. Then a substitute brief kicked by the Board because it was not considered by the Examiner. Then another defective brief. Then another brief that reopened prosecution with a new rejection -- which was overcome, resulting in allowance. I suspect the Examiner was simply worn out by this point. Or Topps' counsel takes lessons from the Swamp King.

Filed five months too early? Topps' application was filed in January 2000. Unfortunately, Patent Term Adjustment only is allowed for applications filed after May 29, 2000. With over ten years from application to issuance, that would have been over seven years of "B" delay, alone (assuming there was no applicant delay--you can check that for yourself). But here is is the real travesty of all those failed appeal attempts: under the older Patent Term Extension--which applied to this application--had Topps received a favorable appeal decision from the BPAI, then it would have received extra term dating back to the Notice of Appeal. But without any decision on the merits by the Board (even though the Examiner reconsidered his rejections several times), the term is a flat 20 years from filing.

Adding even more insult to injury, Topps had successfully petitioned to make the application special, resulting in an accelerated examination. Despite, these efforts, in hindsight Topps would have been better off dropping this app in favor of a continuation after the first final rejection in October 2001.

Derivatives. Anyone care to create an options exchange for Topps?

UPDATE 10/20/2010: I'm informed that Topps actually has a commercial service based on the teachings of this patent, called etopps.

Godot; Guffman; Bilski: USPTO Postpones Business Methods Meeting

Seems like we're not the only ones waiting for a decision. This morning I received the following e-mail from Jeff Smith, a supervisory examiner in the 3600 TC and coordinator of the annual Business Methods Partnership Meeting:

From: "Smith, Jeffrey A. (AU3625)" Date: June 11, 2010 6:37:36 AM CDT Subject: Notification of Postponement of the 2010 Business Methods Partnership Meeting Greetings, You were recently invited to attend this year's annual Business Method's Partnership Meeting to be held on July 15, 2010.  Regretfully, we must postpone this event.  We recognize and appreciate our community's profound interest in Bilski v. Kappos currently before the United States Supreme Court, and inasmuch as we still await a decision in this case, we find it best to postpone this meeting to a future time when more guidance will be in place for this decision. We apologize for any inconvenience the postponement of this meeting may have caused. We will provide notice to you once we determine the best possible date for the rescheduling of this event. Sincerely, Jeff Smith Supervisory Patent Examiner A.U. 3625 Knox, Rm 5D05

On the positive side, if you were planning on making the trip from out-of-town, you are now spared one dose of D.C. humidity this summer.

Posted on June 11, 2010 at 08:43 AM in Bilski | Permalink | Comments (2) | TrackBack (0)

Digg This | Save to del.icio.us

Seems like we're not the only ones waiting for a decision. This morning I received the following e-mail from Jeff Smith, a supervisory examiner in the 3600 TC and coordinator of the annual Business Methods Partnership Meeting:

From: "Smith, Jeffrey A. (AU3625)" Date: June 11, 2010 6:37:36 AM CDT Subject: Notification of Postponement of the 2010 Business Methods Partnership Meeting Greetings, You were recently invited to attend this year's annual Business Method's Partnership Meeting to be held on July 15, 2010.  Regretfully, we must postpone this event.  We recognize and appreciate our community's profound interest in Bilski v. Kappos currently before the United States Supreme Court, and inasmuch as we still await a decision in this case, we find it best to postpone this meeting to a future time when more guidance will be in place for this decision. We apologize for any inconvenience the postponement of this meeting may have caused. We will provide notice to you once we determine the best possible date for the rescheduling of this event. Sincerely, Jeff Smith Supervisory Patent Examiner A.U. 3625 Knox, Rm 5D05

On the positive side, if you were planning on making the trip from out-of-town, you are now spared one dose of D.C. humidity this summer.

Last week Yahoo! announced it was shuttering its answer to Google's AdSense, which was targeted at allowing smaller players -- blogs -- to make a few bucks through placement of ads. While that may be a front on which it has conceded defeat, judging by at least one of its recently issued patents, however, Yahoo! is keeping active in the bigger world of targeted online advertising. Consider this patent from a few weeks ago:

U.S. Patent No. 7,680,786 Optimization of targeted advertisements based on user profile information Assignee: Yahoo! Inc. Issued: March 16, 2010 1. A method of targeting based on user information, the method comprising:  identifying a set of keywords associated with content information requested by a user over a network;  retrieving advertising information corresponding to said set of keywords;  retrieving user profile information associated with said user, said user profile information comprising a user matrix, said user matrix comprises, for said set of keywords and said corresponding advertising information, click-through-rates associated with said user and a bid price for said advertising information;  filtering said advertising information to select advertisements based on said bid price for said advertising information and said corresponding click-through-rate associated with said user identified in said user matrix for said set of keywords; and  providing said advertising information selected to be displayed for said user in connection with said content information.

In other words, an advertiser pays more to present its online ad to you when it knows you historically have a higher rate of clicking-through to presented online ads. That, of course, can only happen if somebody is keeping track of your click-through rate. While this may not be so different from other forms of targeted advertising based on user profiles, something about it feels closer to the "evil" end of the Google-motto-scale. (The University of Chicago part of me sees this as a kind of double price discrimination: a) the advertiser willing to pay the most gets the slot; and b) the price is further determined based on traits of the specific users. Of course, the users here are the real "product" being sold to the advertisers, so it's not quite the same. But still interesting.)

From the patent prosecution angle, there are two additional things to note. First, there was no Bilski rejection.  Looks to me like the "network" is the only machine-like element explicitly mentioned.

Second, this patent is the first I've seen that went through the First-Action Interview Pilot Program. This program, which expired just last week, was set up for certain art units to allow applicants an opportunity to receive search results and interact with the examiner prior to a first action on the merits.  Here's how that played out for Yahoo!:

• 10/30/06 - Yahoo files application
• 6/4/08 - Yahoo enrolls in pilot program
• 9/10/08 - PTO gives a "Preinterview first office action"
• 10/10/08 - Yahoo proposes amended claims
• 11/18/08 - Yahoo and PTO have interview to discuss proposed amendment - no resolution
• 12/9/08 - PTO issues "First Action Interview Office Action" rejecting claims
• 1/9/09 - Yahoo amends claims
• 4/1/09 - PTO issues Non-Final, "first" action on the merits
• 7/7/09 - Yahoo amends
• 10/28/09 - Allowance

By participating in the pilot program, Yahoo got two extra bites at the apple (by proposing amended claims after the "Preinterview" action, and again amending after the "First Action Interview" action), PLUS the interview. And all before a true "first action on the merits." It also appears that the examiner may have accelerated the examination of this application (though this was not an advertised feature of the program).

The pilot was extended once, to 4/1/2010. But there's been nothing about it being extended again. If anyone has seen statistics relating to the program, please feel free to share.

For searching purposes, the USPTO classifies patent applications according to their general subject matter.  If you're the type to read the Patent Act cover-to-cover, you may already know that there is actually statutory authority for classification in 35 USC Section 8, which authorizes the Director to maintain a classification system "for the purpose of determining with readiness and accuracy the novelty of inventions for which applications for patent are filed."  Currently, there are over 400 classes, and you can find them on the PTO site if you really are curious (or really are bored...) See MPEP 900 et seq. for more information.

One class that is worth watching, and is part of my weekly scan, is class 705, titled, "DATA PROCESSING: FINANCIAL, BUSINESS PRACTICE, MANAGEMENT, OR COST/PRICE DETERMINATION." Class 705 contains most of the so-called "business method" patents.  Over the past couple years, a typical week would see about 45-65 patents issue from Class 705. Today that number jumped to 111.  And, as shown in the chart below, it appears to be the latest point in an upwards trend.

 
The trend is highlighted by focusing on the 60 patent mark. From January through July 2009, only three times did the number of weekly issuances from Class 705 exceed 60.  But from August 2009 through today, there have been only five weeks when the number was below 60.

This data runs counter to the CW that there would be a post-Bilski drop in the allowance of business method patents. (Potentially, anyway...it may be that there was a surge in non-business method applications from 705.)

Theories?  Could it simply be more examiners being hired in the Art Units that deal with 705-type applications?

Special Offer, Just For You: Yahoo's patent on targeted advertising

Last week Yahoo! announced it was shuttering its answer to Google's AdSense, which was targeted at allowing smaller players -- blogs -- to make a few bucks through placement of ads. While that may be a front on which it has conceded defeat, judging by at least one of its recently issued patents, however, Yahoo! is keeping active in the bigger world of targeted online advertising. Consider this patent from a few weeks ago:

U.S. Patent No. 7,680,786 Optimization of targeted advertisements based on user profile information Assignee: Yahoo! Inc. Issued: March 16, 2010 1. A method of targeting based on user information, the method comprising:  identifying a set of keywords associated with content information requested by a user over a network;  retrieving advertising information corresponding to said set of keywords;  retrieving user profile information associated with said user, said user profile information comprising a user matrix, said user matrix comprises, for said set of keywords and said corresponding advertising information, click-through-rates associated with said user and a bid price for said advertising information;  filtering said advertising information to select advertisements based on said bid price for said advertising information and said corresponding click-through-rate associated with said user identified in said user matrix for said set of keywords; and  providing said advertising information selected to be displayed for said user in connection with said content information.

In other words, an advertiser pays more to present its online ad to you when it knows you historically have a higher rate of clicking-through to presented online ads. That, of course, can only happen if somebody is keeping track of your click-through rate. While this may not be so different from other forms of targeted advertising based on user profiles, something about it feels closer to the "evil" end of the Google-motto-scale. (The University of Chicago part of me sees this as a kind of double price discrimination: a) the advertiser willing to pay the most gets the slot; and b) the price is further determined based on traits of the specific users. Of course, the users here are the real "product" being sold to the advertisers, so it's not quite the same. But still interesting.)

From the patent prosecution angle, there are two additional things to note. First, there was no Bilski rejection.  Looks to me like the "network" is the only machine-like element explicitly mentioned.

Second, this patent is the first I've seen that went through the First-Action Interview Pilot Program. This program, which expired just last week, was set up for certain art units to allow applicants an opportunity to receive search results and interact with the examiner prior to a first action on the merits.  Here's how that played out for Yahoo!:

• 10/30/06 - Yahoo files application
• 6/4/08 - Yahoo enrolls in pilot program
• 9/10/08 - PTO gives a "Preinterview first office action"
• 10/10/08 - Yahoo proposes amended claims
• 11/18/08 - Yahoo and PTO have interview to discuss proposed amendment - no resolution
• 12/9/08 - PTO issues "First Action Interview Office Action" rejecting claims
• 1/9/09 - Yahoo amends claims
• 4/1/09 - PTO issues Non-Final, "first" action on the merits
• 7/7/09 - Yahoo amends
• 10/28/09 - Allowance

By participating in the pilot program, Yahoo got two extra bites at the apple (by proposing amended claims after the "Preinterview" action, and again amending after the "First Action Interview" action), PLUS the interview. And all before a true "first action on the merits." It also appears that the examiner may have accelerated the examination of this application (though this was not an advertised feature of the program).

The pilot was extended once, to 4/1/2010. But there's been nothing about it being extended again. If anyone has seen statistics relating to the program, please feel free to share.

Class 705 Issuances Rising

For searching purposes, the USPTO classifies patent applications according to their general subject matter.  If you're the type to read the Patent Act cover-to-cover, you may already know that there is actually statutory authority for classification in 35 USC Section 8, which authorizes the Director to maintain a classification system "for the purpose of determining with readiness and accuracy the novelty of inventions for which applications for patent are filed."  Currently, there are over 400 classes, and you can find them on the PTO site if you really are curious (or really are bored...) See MPEP 900 et seq. for more information.

One class that is worth watching, and is part of my weekly scan, is class 705, titled, "DATA PROCESSING: FINANCIAL, BUSINESS PRACTICE, MANAGEMENT, OR COST/PRICE DETERMINATION." Class 705 contains most of the so-called "business method" patents.  Over the past couple years, a typical week would see about 45-65 patents issue from Class 705. Today that number jumped to 111.  And, as shown in the chart below, it appears to be the latest point in an upwards trend.

 
The trend is highlighted by focusing on the 60 patent mark. From January through July 2009, only three times did the number of weekly issuances from Class 705 exceed 60.  But from August 2009 through today, there have been only five weeks when the number was below 60.

This data runs counter to the CW that there would be a post-Bilski drop in the allowance of business method patents. (Potentially, anyway...it may be that there was a surge in non-business method applications from 705.)

Theories?  Could it simply be more examiners being hired in the Art Units that deal with 705-type applications?