Obviousness

Based on the provided analysis of prior art, here is an analysis of the obviousness of US patent 7,822,639 under 35 U.S.C. § 103.

Obviousness Analysis of US Patent 7,822,639

Legal Standard for Obviousness

Under 35 U.S.C. § 103, a patent claim is invalid as obvious if the differences between the claimed invention and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art (PHOSITA). An obviousness analysis requires considering the scope of the prior art, the differences between the art and the claims, and whether a PHOSITA would have been motivated to combine existing art to arrive at the claimed invention with a reasonable expectation of success.

Person Having Ordinary Skill in the Art (PHOSITA)

At the time of the invention (priority date November 28, 2000), a PHOSITA in the field of internet advertising would be a software engineer or computer scientist with a bachelor's degree in the field and 2-3 years of experience working on web-based systems, particularly in the development of advertising platforms or large-scale websites. This person would be familiar with internet protocols (HTTP), the use of cookies for tracking user state, client-server architecture, and the prevailing business models for online advertising, including ad networks and cost-per-impression (CPM) pricing.

Obviousness of Claim 1 (Method Claim)

Claim 1 recites a method for off-site ad delivery involving an agency, a first broadcaster that tags visitors, and a second broadcaster that recognizes the tag and displays the ad. This method would have been obvious to a PHOSITA by combining the teachings of U.S. Patent 5,948,061 (Merriman) with the known business motivations prevalent in the online advertising industry at the time.

Primary Reference: U.S. Patent 5,948,061 ("Merriman")

The Merriman patent, assigned to DoubleClick, is a foundational disclosure of the modern ad network. As noted in the prior art analysis, Merriman teaches:

• An "advertising server" that functions as the "agency," coordinating ad delivery across a network of websites.
• The use of cookies to identify and track users (the "tagging" step) as they visit affiliated websites.
• A process where a user visits a first network site (the "first broadcaster"), is tagged, and is later served a targeted ad when they visit a second network site (the "second broadcaster") that recognizes the cookie.

Merriman discloses every technical step of the method in claim 1. The terminology differs ("advertising server" vs. "agency," "affiliate site" vs. "broadcaster"), but the functions are identical.

Motivation to Combine

The '639 patent frames its novelty around solving the business problem of "super-saturation," where a popular website has sold all its available ad inventory but wants to continue generating revenue from its valuable audience. A PHOSITA would have found it obvious to apply the technology described in Merriman to solve this exact problem.

The motivation is purely economic and would have been self-evident:

1. Problem: A high-traffic website (e.g., a "portal" or popular content site) has a valuable, well-defined audience that advertisers want to reach. The site sells all its ad space at a premium price. The site now has excess demand from advertisers and no more inventory to sell.
2. Known Solution: The Merriman patent provides the technical blueprint for tracking users across different websites and serving them ads. This technology was not theoretical; it was the basis for major ad networks like DoubleClick.
3. Obvious Combination: A PHOSITA would have immediately recognized that the ad network technology from Merriman could be used to monetize the "sold-out" site's audience after they leave. The popular site (first broadcaster) would simply need to join an ad network (or act as its own agency) and place a tag on its users. When those valuable users visit other, less-expensive sites in the network (second broadcasters), the network's ad server would recognize the tag and serve them ads from the first site's advertisers.

This is not an inventive leap but a straightforward business application of existing, well-documented technology. The motivation to generate additional revenue provides a clear reason to apply Merriman's system to the specific scenario described in the '639 patent. The same argument can be made using U.S. Patent 6,026,368 (Brown), which teaches a functionally identical system.

Obviousness of Claim 21 (Contractual Structure Claim)

Claim 21 recites the three-part contractual framework that enables the method of Claim 1. This claim is also obvious as it merely describes the necessary business relationships inherent in the operation of any ad network, such as the one disclosed in Merriman.

• Contract 1 (Agency and Content Provider): An advertiser ("content provider") must have an agreement with the ad network ("agency") to have its ads served. This is a fundamental prerequisite.
• Contract 2 (Agency and First Broadcaster): A website publisher ("first broadcaster") must agree to join the network and tag its users in exchange for a share of the revenue. This is how ad networks recruit publishers.
• Contract 3 (Agency and Second Broadcaster): Another publisher ("second broadcaster") must agree to display ads from the network on its own site in exchange for payment. This is how the network secures ad inventory.

These three agreements are not an invention; they are the standard, necessary components of the business model for the technology Merriman describes. A PHOSITA, tasked with implementing the system from Merriman, would have understood that these contractual relationships are a commercial necessity. Formalizing these self-evident business requirements into a patent claim does not render the underlying obvious method patentable.

Conclusion

The claims of US 7,822,639 are invalid as obvious under 35 U.S.C. § 103. The core technical method was well-established in the prior art, particularly by U.S. Patent 5,948,061 (Merriman), which detailed the functionality of an ad network that tagged and retargeted users across different websites. The motivation to apply this existing technology to solve the "super-saturation" problem—monetizing a valuable audience off-site—was driven by clear and powerful economic incentives that would have been readily apparent to a PHOSITA. The contractual structure claimed is merely the codification of the standard business agreements required to operate the very ad networks disclosed in the prior art. Therefore, the invention as a whole represents an obvious application of existing technology to a known business objective.