Section 101 Examples
Example 8: Distribution of Products over the Internet

This is an example provided by the U.S. Patent and Trademark Office for analyzing Section 101 patent subject matter eligibility issues. The example is one of the "Abstract Idea Examples" provided by the USPTO on January 27, 2015, and this example should be viewed in light of the introduction that was provided with it. The original PDF document is found here. The numbering of these examples is taken from Appendix 2 of the July 2015 Update on Subject Matter Eligibility.

The index for all of the examples provided by the Patent and Trademark Office is found on BitLaw's Section 101 Index.

Example 8: Distribution of Products over the Internet

The following claim was found ineligible by the Federal Circuit in Ultramercial v. Hulu and WildTangent, 2014 U.S. App. LEXIS 21633 (Fed. Cir. 2014). The patent at issue was U.S. Patent No. 7,346,545. The claim is directed to an abstract idea and has additional elements that do not amount to significantly more than the abstract idea.

Background

The invention addresses problems with piracy of digital copyrighted media (video, audio, etc.), especially among people who have limited access to cash and credit cards. The invention is directed to distributing products covered by intellectual property, such as copyright, over a telecommunications network by allowing a consumer to choose to view or interact with a sponsor’s message in exchange for access to copyrighted material. The sponsor then pays the holder of the underlying intellectual property, thus allowing the consumer to obtain the product without paying with cash or credit. The invention uses a series of detailed steps that accomplish the exchange of products.

Representative Claim

1. A method for distribution of products over the Internet via a facilitator, said method comprising the steps of:
• a first step of receiving, from a content provider, media products that are covered by intellectual property rights protection and are available for purchase, wherein each said media product being comprised of at least one of text data, music data, and video data;
• a second step of selecting a sponsor message to be associated with the media product, said sponsor message being selected from a plurality of sponsor messages, said second step including accessing an activity log to verify that the total number of times which the sponsor message has been previously presented is less than the number of transaction cycles contracted by the sponsor of the sponsor message;
• a third step of providing the media product for sale at an Internet website;
• a fourth step of restricting general public access to said media product;
• a fifth step of offering to a consumer access to the media product without charge to the consumer on the precondition that the consumer views the sponsor message;
• a sixth step of receiving from the consumer a request to view the sponsor message, wherein the consumer submits said request in response to being offered access to the media product;
• a seventh step of, in response to receiving the request from the consumer, facilitating the display of a sponsor message to the consumer;
• an eighth step of, if the sponsor message is not an interactive message, allowing said consumer access to said media product after said step of facilitating the display of said sponsor message;
• a ninth step of, if the sponsor message is an interactive message, presenting at least one query to the consumer and allowing said consumer access to said media product after receiving a response to said at least one query;
• a tenth step of recording the transaction event to the activity log, said tenth step including updating the total number of times the sponsor message has been presented; and
• an eleventh step of receiving payment from the sponsor of the sponsor message displayed.

Analysis

Claim 1: Ineligible.

The claim is directed to a process; i.e., a series of steps or acts, for distributing media and advertisements over the Internet. A process is one of the statutory categories of invention (Step 1: YES).

The claim is then analyzed to determine whether it is directed to an exception. The claim recites an eleven step process for displaying an advertisement in exchange for access to copyrighted media. That is, the claim describes the concept of using advertising as an exchange or currency. This concept is similar to the concepts involving human activity relating to commercial practices (e.g., hedging in Bilski) that have been found by the courts to be abstract ideas. The addition of limitations that narrow the idea, such as receiving copyrighted media, selecting an ad, offering the media in exchange for watching the selected ad, displaying the ad, allowing the consumer access to the media, and receiving payment from the sponsor of the ad, further describe the abstract idea, but do not make it less abstract. The claim is directed to an abstract idea (Step 2A: YES).

Next, the claim as a whole is analyzed to determine whether it amounts to significantly more than the concept of using advertising as an exchange or currency. The claim has additional limitations to the abstract idea such as accessing and updating an activity log, requiring a request from the consumer to view the advertising, restricting public access, and using the Internet as an information transmitting medium.

Viewing the limitations individually, the accessing and updating of an activity log are used only for data gathering and, as such, only represent insignificant pre-solution activity. Similarly, requiring a consumer request and restricting public access is insignificant pre-solution activity because such activity is necessary and routine in implementing the concept of using advertising as an exchange or currency; i.e., currency must be tendered upon request in order for access to be provided to a desired good. Furthermore, the Internet limitations do not add significantly more because they are simply an attempt to limit the abstract idea to a particular technological environment.

Viewing the limitations as a combination, the claim simply instructs the practitioner to implement the concept of using advertising as an exchange or currency with routine, conventional activity specified at a high level of generality in a particular technological environment. When viewed either as individual limitations or as an ordered combination, the claim as a whole does not add significantly more to the abstract idea of using advertising as an exchange or currency (Step 2B: NO). The claim is not patent eligible.