The Receivership Estate of AudienceScience Inc. v. Google LLC: The Federal Circuit’s Continuing Skepticism over Targeted Advertising Patents
In The Receivership Estate of AudienceScience Inc. v. Google LLC, the Federal Circuit affirmed a district court’s grant of judgment on the pleadings that patents covering targeted advertisement are ineligible under 35 U.S.C. § 101 and affirmed dismissal without leave to amend.
AudienceScience asserted three related patents directed to selecting internet advertisements based on both a user’s browsing history and the content of the page being viewed, with each candidate advertisement weighted by a “performance score” reflecting how much revenue it had generated.
The representative claim recites receiving a page request, adding it to a page history, mapping pages and history to keywords, mapping keywords to advertisements, attributing a “selection weighting” based on a performance score reflecting revenue generation, and selecting and displaying an advertisement accordingly.
Google moved under Rule 12(c), and the district court agreed that the claims are directed to the abstract idea of “targeting advertisements to internet users to maximize revenue generation” and lack an inventive concept. The district court rejected AudienceScience’s arguments that either the use of performance scores or the combination of page-context and user-history targeting supplied an inventive concept.
The district court further determined sua sponte that amendment would be futile and dismissed the complaint with prejudice.
On appeal, the Federal Circuit agreed that the representative claim, “as a whole, is directed to the abstract idea of targeting advertisements to internet users to maximize revenue generation.”
The Federal Circuit explained that selecting the most effective advertisement is “fundamentally a ‘non-internet centric problem’ … analogous to advertisements conventionally run in print or on television,” not a problem unique to computer networks.
The court also found the claims closely analogous to those held abstract in Chewy, Inc. v. IBM, noting that even the added “performance score” limitation “relates to collecting data to better tailor advertisements to maximize revenue,” which is insufficient to “offset the abstract concept.”
At step two, the court held that combining two conventional advertising methods cannot supply inventive concept, and that the performance-score limitation lacks any specificity as to implementation. The court found the claims involve “only generic steps” like “correlating keywords associated with web pages to keywords associated with advertisements.”
The court emphasized that AudienceScience’s complaint contained no allegations regarding an inventive concept and that it identified nothing in the specification supporting one, so the claims failed at the pleadings stage.
On the amendment issue, the court held that AudienceScience forfeited its right to challenge the district court’s futility determination by never seeking leave to amend, never appending a proposed amendment or raising the possibility of amendment during briefing, not moving for reconsideration after judgment, and failing to specifically identify on appeal what it would allege if given the chance.
This decision highlights that correlating information (e.g., advertisements with search results or browsing history) is a type of abstract idea, prompting search for specific technological improvements to an internet-centric problem to overcome Alice challenges.
By: Jason Engel and Jade Chen