In The Receivership Estate of AudienceScience Inc. v. Google LLC, No. 2024-1825 (Fed. Cir. Sep. 25, 2026), Judge Reyna (joined by Judges Taranto and Stark) issued a nonprecedential opinion. The Receivership Estate of AudienceScience Inc. and Revitalization Partners, LLC own U.S. Patents 7,747,676, 7,882,175, and 8,082,298, which share a common specification and claim priority to December 2004. The appeal arises from N.D. Cal. No. 5:22-cv-04756-EJD (Judge Davila), after transfer from the Western District of Texas.
The representative claim
The district court treated eight claims across the three patents as representative. On appeal, at AudienceScience's urging, the Federal Circuit treated claim 1 of the '676 patent as representative, finding the differences among the claims immaterial to its analysis. As quoted in the Federal Circuit opinion, that claim covers a method performed by a computing system for selecting an advertising message for inclusion in a requested web page. The recited steps include receiving a page request identifying the requested page; adding the requested page to a page request history of pages recently requested by the user; using a mapping from pages to keywords to identify keywords mapped from pages in that history; using a mapping from keywords to advertising messages to identify matching advertising messages; attributing to each identified advertising message a selection weighting that reflects a performance score indicating the extent to which the advertising message has generated revenue; selecting one advertising message in accordance with those weightings; and responding with a version of the requested page that includes an instruction to display the selected advertising message.
District court path
AudienceScience sued Google LLC and YouTube LLC in 2021 in the Western District of Texas. The case was later transferred to the Northern District of California. Google moved for judgment on the pleadings under Rule 12(c) on patent ineligibility under 35 U.S.C. 101. The district court granted the motion, found the claims directed to the abstract idea of targeting advertisements to internet users to maximize revenue generation, found no inventive concept at Alice step two, and dismissed without leave to amend after determining sua sponte that amendment would be futile.
Alice step one
The Federal Circuit agreed that claim 1, as a whole, is directed to the abstract idea of targeting advertisements to internet users to maximize revenue generation. The claim gathers keywords from the requested page and the user's page-request history, identifies matching advertisements, weights them by revenue-based performance scores, and displays a selected advertisement. The court rejected AudienceScience's reliance on DDR Holdings, agreeing with the district court that selecting the most effective advertisement is a non-internet-centric problem; the claims address internet advertisements analogous to advertisements conventionally run in print or on television. The court found the claim similar to the targeted-advertising claims it held abstract in Chewy, Inc. v. International Business Machines Corp., 94 F.4th 1354 (Fed. Cir. 2024), and it distinguished SRI International, Finjan, and McRO because those claims recited specific solutions to technological problems.
Alice step two
At step two, the court held that combining page-context and user-history targeting does not supply an inventive concept, because the common specification itself describes each approach as conventional and AudienceScience's own description of the benefit, more personalized results, collapses into the abstract idea. It also held that the performance-score limitation is not an inventive concept, because the claim recites weighting advertisements by a revenue-based score without explaining how that weighting is carried out. The court distinguished Weisner v. Google on two grounds: the Weisner claims were specific about the mechanism that produced improved search results, and the Weisner patentee had pleaded supporting allegations. AudienceScience's complaint contained no allegations of an inventive concept, and AudienceScience pointed to nothing in the specification suggesting that the weighted performance score was one.
Amendment forfeited
AudienceScience argued on appeal that the district court improperly foreclosed amendment. The Federal Circuit held the argument forfeited. AudienceScience never sought leave to amend below, never appended a proposed amended complaint to its Rule 12(c) opposition, and never moved for reconsideration after dismissal. Because forfeiture disposed of the issue, the court did not reach the merits of the district court's futility determination.
Disposition
The Federal Circuit affirmed the grant of judgment on the pleadings against the asserted claims of all three patents.
What it means
The panel applied Chewy to hold revenue-weighted ad targeting abstract, and it distinguished Weisner because the claims do not explain with any specificity how the performance-score weighting is carried out and the complaint pleaded no inventive concept. On amendment, the court held the issue forfeited because AudienceScience never asked for leave, never proposed amended allegations, and even on appeal did not say with any specificity what it would add. In a footnote, the court said the case did not require it to set out the minimum a patentee must do to preserve a request to amend, and it acknowledged the Ninth Circuit's long line of cases favoring leave to amend. The opinion is nonprecedential.
What to watch next
Watch whether AudienceScience seeks panel rehearing or en banc review, and whether later section 101 briefs cite the forfeiture holding alongside the abstract-idea characterization of revenue-weighted ad targeting.