Reordering a program guide by viewing history is targeted advertising, abstract unless the claim says how

2024-09-03Fed. Cir.

Broadband iTV, Inc. v. Amazon.com, Inc., 113 F.4th 1359 (Fed. Cir. Sept. 3, 2024) (precedential) (Reyna, J., joined by Dyk and Stark, JJ.), No. 2023-1107, affirming Broadband iTV, Inc. v. Amazon.com, Inc., No. 6:20-cv-00921-ADA, 2022 WL 4703425 (W.D. Tex. Sept. 30, 2022) (Albright, J.)

United States Patent Nos. 10,028,026, 9,648,388, 10,536,750 and 10,536,751 claim an Internet-connected device presenting a video-on-demand program guide built from display templates and arranged by metadata the content provider uploads. United States Patent No. 9,973,825 claims a method for "dynamic adjustment of an individualized electronic program guide": tracking a logged-in viewer's consumption in a usage history database, ranking category names by relevance from that history, and reordering the displayed categories at the start of each session. Judge Albright granted Amazon summary judgment of ineligibility under Section 101 of Title 35 of the United States Code, and the Federal Circuit affirmed in a precedential opinion by Judge Reyna. For the '026 family, "[r]eordering content within a user guide is not a sufficient technological solution to a technological problem, but rather a results-oriented abstract idea." The '825 claims are directed to "targeted advertising"; claim 1 "does not disclose how to maintain a usage history database, track viewer consumption, or generate a program guide," and the claims "differ little from a check-out system at a public library." At step two, automating an abstract idea is not an inventive concept, the server was available "off the market," the patentee's expert admitted templates "were a known entity," and the log-in step is conventional. The court approved weighing conventionality at step one to decide what the claims are directed to.

What it changesPersonalization from usage history is among the most common commercial uses of machine learning, and this decision treats a claim reciting it as a sequence of results as targeted advertising. The ranking model, the features derived from the log and the retraining cadence are where eligible subject matter can sit, and none of them appears in the '825 claim. Draft recommendation and ranking claims to the specific technique that produces the order, in terms a librarian with a card file could not carry out, and describe that technique in the specification in enough detail that the step-two record is the patentee's rather than the defendant's expert's. The opinion also lets a court weigh conventionality at step one, so the specification's own statements about off-the-shelf servers and known templates will be read against the claim from the start. The patent's promised reduction in keypresses did not help, because a claim that reaches a result more efficiently can still be directed to an abstract idea.

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Burbage Law is the practice of Jon Burbage, a registered patent attorney. 342 United States patents have issued from applications he wrote; the full list is on the Patents page. More about Jon Burbage.

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