EDVA: Targeted-ad methods too abstract for patents

Three patents for “high-tech snooping” processes used for online marketing were not enforceable. The internet context didn’t establish sufficient inventiveness over conventional, abstract concepts.

Background

This case involves technology that helps businesses pry into peoples’ personal preferences and privacy. Advertisers use targeted-marketing techniques to place advertisements in places likely to reach interested consumers. This time-tested technique has migrated to the internet, but public resistance to spying has led technology companies to look for new ways to look over internet users’ shoulders.

Plaintiff Bridge & Post Inc. says that Defendant Verizon Communications Inc. has infringed on three of its targeted-marketing patents. Verizon has moved to dismiss, arguing that the patents are directed toward abstract ideas and use conventional technology and methods that fall short of patentability.

Patent validity

Patent validity is determined by a two-step inquiry under Alice Corp Pty. v. CLS Bank Int’l, 134 S. Ct. 2347 (2014). First, a court analyzes whether the patent claim is “directed to” an abstract idea.  If not, step two is not necessary and the court may find the patent valid. If so, the patent may still be valid if it contains an “inventive concept” sufficient to “transform the nature of the claim into a patent-eligible application.”

Patent 1

Patent 1 – directed at the abstract idea of using persistent identifiers to implement targeted marketing – lacks a sufficiently innovative step to warrant patentability.

At Alice step one, targeted marketing, or “gathering information about one’s intended market and attempting to customize the information provided,” is an abstract idea. Similarly, the concept of using an unchangeable identifier – like someone’s name or social security number – to track consumers is an abstract idea. Applying these concepts to internet traffic does not take the patent outside the realm of an abstract idea.

Critically, Patent 1 doesn’t improve computer technology itself.  Instead, it mirrors the patent in Bascom Global Internet Servs. Inc. v. AT&T Mobility LLC, 827 F.3d 1341 (Fed. Cir. 2016), which claimed a software-based improvement to computer functioning. Similarly, Patent 1 claims to overcome a technical limitation by swapping a changeable identifier with an unchangeable one. As in Bascom, the patent is thus directed to an abstract idea, and the court moves to Alice step two.

Patent 1 fails at step two because the claims don’t contain an inventive concept that provides “significantly more” than the abstract idea of using a persistent, non-changeable identifier to implement targeted marketing over a computer network. Patent 1 neither invents a new technology nor arranges conventional pieces in a new, inventive way. Bridge & Post doesn’t claim to invent the persistent identifier; therefore, it fails to invent a new technology. Patent 1 uses an abstract, undefined persistent identifier to overcome technical shortfalls on the network; this claim does not invent a sufficiently new, non-conventional arrangement of known pieces to overcome a technical challenge.

Bascom teaches that overcoming a technical limitation of the internet may lead to patentability in theory, but the patent claims here lack the required specificity to survive Verizon’s motion to dismiss. As written, Bridge & Post’s claim includes all possible ways to track an internet-connected device that a user cannot change. This generic language does not provide the kind of additional features or specific configuration needed to bring the patent outside the realm of a drafting effort designed to monopolize the abstract idea itself. Patent 1 merely hijacks the idea of tracking customers based on unchangeable criteria and seeks to patent all methods of doing so on the internet.

Verizon has shown by clear and convincing evidence that the Patent 1 claims are directed to an abstract idea and lack an inventive concept sufficient to warrant patentability.

Patent 2

Patent 2 describes a system of transmitting encrypted information over the internet that allows targeted marketers to use persistent identifiers without compromising internet users’ confidential personal information. As with Patent 1, Patent 2 is invalidly abstract.

Patent 2 directs itself toward the abstract idea of sending information over the internet. As made clear in the claims, Patent 2 intercepts data sent over the internet, extracts portions of the data, flags the communication with an identifier associated with a user’s device, encrypts it, and then sends the data into the internet’s normal data flow. As with Patent 1, the claims here do not show an improvement to the network itself, instead using conventional network pieces directed to sending encrypted information.

At Alice step two, Patent 2 merely uses the internet in a generic way to track the browsing history and demographic information of a particular device. Most of the claim elements involve abstract generic computer functions, such as extracting and processing data.

Merely redirecting traffic, whether considered separately or together with the other claims, does not represent “substantially more” than using standard servers on the internet to collect and transmit data. The process described does no more than intercept internet data by rerouting it, and then extract information about the sender and create a unique identifier associated with the device that sent the request. This process is an internet version of sorting mail, tracking information about its source and its destination and conveying that information through an encrypted method.

And merely using a known header portion of an HTTP signal, even if that header generally goes unused, doesn’t constitute an innovation to the internet itself. It simply uses existing parts of the internet protocol. Patent 2’s reconfiguration and use of internet traffic doesn’t represent “significantly more” than the abstract idea of sending secure information over the internet. It uses conventional internet technology in a largely conventional way and is, therefore, invalidly abstract.

Patent 3

Patent 3 – directed at the abstract idea of tagging and tracking an object through an encrypted means – is also invalid. At Alice step one, Patent 3 claims a method of tagging network traffic with an identifier associated with an internet user, encrypting the information, and then tracking that user. The concepts of tagging, tracking, and encrypting are abstract ideas.

At Alice step two, Patent 3 provides only a generalized recitation of standard internet components and a process that highly resembles a physical process of tagging and tracking that would not be patent-eligible in the physical world. The patent relies on the general idea of using a mark to identify a parcel, but applies it to packages of data over the internet rather than packages sent through the mail. These non-specific claims lack technical detail and fail to cite a specific way to solve a specific computer-centric problem.

For the reasons stated above, the three patents at issue in this case are each directed toward an abstract idea and lack an inventive concept that provides significantly more than the abstract idea. The court therefore finds the patents invalid and dismisses this case.

Bridge & Post Inc. v. Verizon Commc’ns Inc., Case Nos. 3:17cv94 and 3:17cv710, Mar. 15, 2018. EDVA at Richmond (Gibney). VLW No. 018-3-082, 14 pp.