DETAILED ACTION
Claims 1-18 and 21-22 have been examined.
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim Rejections - 35 U.S.C. § 101
35 U.S.C. § 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
The invention, as taught in Claims 1-18 and 21-22, is directed to “mental steps” and “mathematical concepts” without significantly more.
The claims recite:
• the neural network comprises a plurality of blocks that each include one or more respective neural network layers (mathematical steps)
• generating a target block input to the target block (mathematical steps)
• each first block output comprises a plurality of channels (mathematical steps)
• the first block outputs are generated by the first blocks during processing of the network input by the neural network (mathematical steps)
• generating a respective attention-weighted representation of each first block output (mathematical steps)
• at least one of the second block outputs is different than the first block output, wherein the second block outputs are generated by the second blocks during processing of the network input by the neural network (mathematical steps)
• processing the second block outputs (mathematical steps)
• generate a respective attention factor corresponding to each channel of the first block output (mathematical steps)
• generating the attention-weighted representation of the first block output by applying each attention factor to the corresponding channel of the first block output (mathematical steps)
• generating the target block input from at least the attention-weighted representations of the first block outputs (mathematical steps)
• processing the target block input using the target block to generate a target block output (mathematical steps)
Claim 1
Step 1 inquiry: Does this claim fall within a statutory category?
The preamble of the claim recites “1. (Original) A method performed by one or more data processing apparatus for processing a network input using a neural network to generate a network output, wherein the neural network comprises a plurality of blocks that each include one or more respective neural network layers, wherein each block is configured to process a respective block input to generate a respective block output, the method comprising, for each of one or more target blocks of the neural network…” Therefore, it is a “method” (or “process”), which is a statutory category of invention. Therefore, the answer to the inquiry is: “YES”.
Step 2A (Prong One) inquiry:
Are there limitations in Claim 1 that recite abstract ideas?
YES. The following limitations in Claim 1 recite abstract ideas that fall within at least one of the groupings of abstract ideas enumerated in the 2019 PEG. Specifically, they are “mental steps” and “mathematical concepts”:
• the neural network comprises a plurality of blocks that each include one or more respective neural network layers (mathematical steps)
• generating a target block input to the target block (mathematical steps)
• each first block output comprises a plurality of channels (mathematical steps)
• the first block outputs are generated by the first blocks during processing of the network input by the neural network (mathematical steps)
• generating a respective attention-weighted representation of each first block output (mathematical steps)
• at least one of the second block outputs is different than the first block output, wherein the second block outputs are generated by the second blocks during processing of the network input by the neural network (mathematical steps)
• processing the second block outputs (mathematical steps)
• generate a respective attention factor corresponding to each channel of the first block output (mathematical steps)
• generating the attention-weighted representation of the first block output by applying each attention factor to the corresponding channel of the first block output (mathematical steps)
• generating the target block input from at least the attention-weighted representations of the first block outputs (mathematical steps)
• processing the target block input using the target block to generate a target block output (mathematical steps)
Step 2A (Prong Two) inquiry:
Are there additional elements or a combination of elements in the claim that apply, rely on, or use the judicial exception in a manner that imposes a meaningful limit on the judicial exception, such that it is more than a drafting effort designed to monopolize the exception?
Applicant’s claims contain the following “additional elements”:
• receiving a respective first block output of each of one or more respective first blocks
• receiving a respective second block output of each of one or more second blocks
A “receiving a respective first block output of each of one or more respective first blocks” is a broad term which is described at a high level. M.P.E.P. § 2106.05(d)(I)(2) recites in part:
2. A factual determination is required to support a conclusion that an additional element (or combination of additional elements) is well-understood, routine, conventional activity. Berkheimer v. HP, Inc., 881 F.3d 1360, 1368, 125 USPQ2d 1649, 1654 (Fed. Cir. 2018). However, this does not mean that a prior art search is necessary to resolve this inquiry. Instead, examiners should rely on what the courts have recognized, or those in the art would recognize, as elements that are well-understood, routine, conventional activity in the relevant field when making the required determination. For example, in many instances, the specification of the application may indicate that additional elements are well-known or conventional. See, e.g., Intellectual Ventures v. Symantec, 838 F.3d at 1317; 120 USPQ2d at 1359 ("The written description is particularly useful in determining what is well-known or conventional"); Internet Patents Corp. v. Active Network, Inc., 790 F.3d 1343, 1348, 115 USPQ2d 1414, 1418 (Fed. Cir. 2015) (relying on specification’s description of additional elements as "well-known", "common" and "conventional"); TLI Communications LLC v. AV Auto. LLC, 823 F.3d 607, 614, 118 USPQ2d 1744, 1748 (Fed. Cir. 2016) (Specification described additional elements as "either performing basic computer functions such as sending and receiving data, or performing functions ‘known’ in the art.").
Further, M.P.E.P. § 2106.05(d)(II) recites:
The courts have recognized the following computer functions as well‐understood, routine, and conventional functions when they are claimed in a merely generic manner (e.g., at a high level of generality) or as insignificant extra-solution activity.
i. Receiving or transmitting data over a network, e.g., using the Internet to gather data, Symantec, 838 F.3d at 1321, 120 USPQ2d at 1362 (utilizing an intermediary computer to forward information); TLI Communications LLC v. AV Auto. LLC, 823 F.3d 607, 610, 118 USPQ2d 1744, 1745 (Fed. Cir. 2016) (using a telephone for image transmission); OIP Techs., Inc., v. Amazon.com, Inc., 788 F.3d 1359, 1363, 115 USPQ2d 1090, 1093 (Fed. Cir. 2015) (sending messages over a network); buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355, 112 USPQ2d 1093, 1096 (Fed. Cir. 2014) (computer receives and sends information over a network); …
Merely using the conventional computer to receive data is well known, understood, and conventional. Thus, it adds nothing significantly more to the judicial exception.
This “receiving a respective first block output of each of one or more respective first blocks” limitation does not integrate the additional element into a practical application and represents “insignificant extra-solution activity”. (See, M.P.E.P. § 2106.05(I)(A)).
A “receiving a respective second block output of each of one or more second blocks” is a broad term which is described at a high level. M.P.E.P. § 2106.05(d)(I)(2) recites in part:
2. A factual determination is required to support a conclusion that an additional element (or combination of additional elements) is well-understood, routine, conventional activity. Berkheimer v. HP, Inc., 881 F.3d 1360, 1368, 125 USPQ2d 1649, 1654 (Fed. Cir. 2018). However, this does not mean that a prior art search is necessary to resolve this inquiry. Instead, examiners should rely on what the courts have recognized, or those in the art would recognize, as elements that are well-understood, routine, conventional activity in the relevant field when making the required determination. For example, in many instances, the specification of the application may indicate that additional elements are well-known or conventional. See, e.g., Intellectual Ventures v. Symantec, 838 F.3d at 1317; 120 USPQ2d at 1359 ("The written description is particularly useful in determining what is well-known or conventional"); Internet Patents Corp. v. Active Network, Inc., 790 F.3d 1343, 1348, 115 USPQ2d 1414, 1418 (Fed. Cir. 2015) (relying on specification’s description of additional elements as "well-known", "common" and "conventional"); TLI Communications LLC v. AV Auto. LLC, 823 F.3d 607, 614, 118 USPQ2d 1744, 1748 (Fed. Cir. 2016) (Specification described additional elements as "either performing basic computer functions such as sending and receiving data, or performing functions ‘known’ in the art.").
Further, M.P.E.P. § 2106.05(d)(II) recites:
The courts have recognized the following computer functions as well‐understood, routine, and conventional functions when they are claimed in a merely generic manner (e.g., at a high level of generality) or as insignificant extra-solution activity.
i. Receiving or transmitting data over a network, e.g., using the Internet to gather data, Symantec, 838 F.3d at 1321, 120 USPQ2d at 1362 (utilizing an intermediary computer to forward information); TLI Communications LLC v. AV Auto. LLC, 823 F.3d 607, 610, 118 USPQ2d 1744, 1745 (Fed. Cir. 2016) (using a telephone for image transmission); OIP Techs., Inc., v. Amazon.com, Inc., 788 F.3d 1359, 1363, 115 USPQ2d 1090, 1093 (Fed. Cir. 2015) (sending messages over a network); buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355, 112 USPQ2d 1093, 1096 (Fed. Cir. 2014) (computer receives and sends information over a network); …
Merely using the conventional computer to receive data is well known, understood, and conventional. Thus, it adds nothing significantly more to the judicial exception.
This “receiving a respective second block output of each of one or more second blocks” limitation does not integrate the additional element into a practical application and represents “insignificant extra-solution activity”. (See, M.P.E.P. § 2106.05(I)(A)).
The answer to the inquiry is “NO”, no additional elements integrate the claimed abstract idea into a practical application.
Step 2B inquiry:
Does the claim provide an inventive concept, i.e., does the claim recite additional element(s) or a combination of elements that amount to significantly more than the judicial exception in the claim?
Applicant’s claims contain the following “additional elements”:
• receiving a respective first block output of each of one or more respective first blocks
• receiving a respective second block output of each of one or more second blocks
A “receiving a respective first block output of each of one or more respective first blocks” is a broad term which is described at a high level. M.P.E.P. § 2106.05(d)(I)(2) recites in part:
2. A factual determination is required to support a conclusion that an additional element (or combination of additional elements) is well-understood, routine, conventional activity. Berkheimer v. HP, Inc., 881 F.3d 1360, 1368, 125 USPQ2d 1649, 1654 (Fed. Cir. 2018). However, this does not mean that a prior art search is necessary to resolve this inquiry. Instead, examiners should rely on what the courts have recognized, or those in the art would recognize, as elements that are well-understood, routine, conventional activity in the relevant field when making the required determination. For example, in many instances, the specification of the application may indicate that additional elements are well-known or conventional. See, e.g., Intellectual Ventures v. Symantec, 838 F.3d at 1317; 120 USPQ2d at 1359 ("The written description is particularly useful in determining what is well-known or conventional"); Internet Patents Corp. v. Active Network, Inc., 790 F.3d 1343, 1348, 115 USPQ2d 1414, 1418 (Fed. Cir. 2015) (relying on specification’s description of additional elements as "well-known", "common" and "conventional"); TLI Communications LLC v. AV Auto. LLC, 823 F.3d 607, 614, 118 USPQ2d 1744, 1748 (Fed. Cir. 2016) (Specification described additional elements as "either performing basic computer functions such as sending and receiving data, or performing functions ‘known’ in the art.").
Further, M.P.E.P. § 2106.05(d)(II) recites:
The courts have recognized the following computer functions as well‐understood, routine, and conventional functions when they are claimed in a merely generic manner (e.g., at a high level of generality) or as insignificant extra-solution activity.
i. Receiving or transmitting data over a network, e.g., using the Internet to gather data, Symantec, 838 F.3d at 1321, 120 USPQ2d at 1362 (utilizing an intermediary computer to forward information); TLI Communications LLC v. AV Auto. LLC, 823 F.3d 607, 610, 118 USPQ2d 1744, 1745 (Fed. Cir. 2016) (using a telephone for image transmission); OIP Techs., Inc., v. Amazon.com, Inc., 788 F.3d 1359, 1363, 115 USPQ2d 1090, 1093 (Fed. Cir. 2015) (sending messages over a network); buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355, 112 USPQ2d 1093, 1096 (Fed. Cir. 2014) (computer receives and sends information over a network); …
Merely using the conventional computer to receive data is well known, understood, and conventional. Thus, it adds nothing significantly more to the judicial exception.
Therefore, the claim as a whole does not amount to significantly more than the exception itself (i.e., there is no inventive concept in the claim). (See, M.P.E.P. § 2106.05(II)).
A “receiving a respective second block output of each of one or more second blocks” is a broad term which is described at a high level. M.P.E.P. § 2106.05(d)(I)(2) recites in part:
2. A factual determination is required to support a conclusion that an additional element (or combination of additional elements) is well-understood, routine, conventional activity. Berkheimer v. HP, Inc., 881 F.3d 1360, 1368, 125 USPQ2d 1649, 1654 (Fed. Cir. 2018). However, this does not mean that a prior art search is necessary to resolve this inquiry. Instead, examiners should rely on what the courts have recognized, or those in the art would recognize, as elements that are well-understood, routine, conventional activity in the relevant field when making the required determination. For example, in many instances, the specification of the application may indicate that additional elements are well-known or conventional. See, e.g., Intellectual Ventures v. Symantec, 838 F.3d at 1317; 120 USPQ2d at 1359 ("The written description is particularly useful in determining what is well-known or conventional"); Internet Patents Corp. v. Active Network, Inc., 790 F.3d 1343, 1348, 115 USPQ2d 1414, 1418 (Fed. Cir. 2015) (relying on specification’s description of additional elements as "well-known", "common" and "conventional"); TLI Communications LLC v. AV Auto. LLC, 823 F.3d 607, 614, 118 USPQ2d 1744, 1748 (Fed. Cir. 2016) (Specification described additional elements as "either performing basic computer functions such as sending and receiving data, or performing functions ‘known’ in the art.").
Further, M.P.E.P. § 2106.05(d)(II) recites:
The courts have recognized the following computer functions as well‐understood, routine, and conventional functions when they are claimed in a merely generic manner (e.g., at a high level of generality) or as insignificant extra-solution activity.
i. Receiving or transmitting data over a network, e.g., using the Internet to gather data, Symantec, 838 F.3d at 1321, 120 USPQ2d at 1362 (utilizing an intermediary computer to forward information); TLI Communications LLC v. AV Auto. LLC, 823 F.3d 607, 610, 118 USPQ2d 1744, 1745 (Fed. Cir. 2016) (using a telephone for image transmission); OIP Techs., Inc., v. Amazon.com, Inc., 788 F.3d 1359, 1363, 115 USPQ2d 1090, 1093 (Fed. Cir. 2015) (sending messages over a network); buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355, 112 USPQ2d 1093, 1096 (Fed. Cir. 2014) (computer receives and sends information over a network); …
Merely using the conventional computer to receive data is well known, understood, and conventional. Thus, it adds nothing significantly more to the judicial exception.
Therefore, the claim as a whole does not amount to significantly more than the exception itself (i.e., there is no inventive concept in the claim). (See, M.P.E.P. § 2106.05(II)).
Therefore, the answer to the inquiry is “NO”, no additional elements provide an inventive concept that is significantly more than the claimed abstract ideas the claimed abstract idea into a practical application.
Claim 1 is, therefore, NOT ELIGIBLE subject matter under 35 U.S.C. § 101.
Claim 2
Claim 2 recites:
2. (Original) The method of claim 1, wherein processing the second block outputs to generate a respective attention factor corresponding to each channel of the first block output comprises:
generating a combined representation by combining the second block outputs using a set of attention weights, wherein each attention weight corresponds to a respective second block output;
processing the combined representation using one or more neural network layers to generate the respective attention factor corresponding to each channel of the first block output.
Applicant’s Claim 2 merely teaches combining “block” (i.e., neural network) outputs and using a neural network to generate an output (mathematical steps). It does not integrate the abstract idea to a practical application, nor is it anything significantly more than the abstract idea. (See, 2106.05(a)(II).)
Claim 2 is, therefore, NOT ELIGIBLE subject matter under 35 U.S.C. § 101.
Claim 3
Claim 3 recites:
3. (Original) The method of claim 2, wherein generating the combined representation by combining the second block outputs using the set of attention weights comprises:
scaling each second block output by a function of the corresponding attention weight; and
determining the combined representation based on a sum of the scaled second block outputs.
Applicant’s Claim 3 merely teaches “scaling” a “block” output (i.e., multiplying the neural network output by a number…mathematical steps) and “determining” the combined representation (mental steps). It does not integrate the abstract idea to a practical application, nor is it anything significantly more than the abstract idea. (See, 2106.05(a)(II).)
Claim 3 is, therefore, NOT ELIGIBLE subject matter under 35 U.S.C. § 101.
Claim 4
Claim 4 recites:
4. (Currently Amended) The method of claim 2, wherein processing the combined representation using one or more neural network layers to generate the respective attention factor corresponding to each channel of the first block output comprises:
processing the combined representation using a pooling layer that performs global average pooling over spatial dimensions of the combined representation; and
processing an output of the pooling layer using a fully connected neural network layer.
Applicant’s Claim 4 merely teaches using a “pooling layer” (mathematical steps) and putting the pooling output through a neural network (mathematical steps). It does not integrate the abstract idea to a practical application, nor is it anything significantly more than the abstract idea. (See, 2106.05(a)(II).)
Claim 4 is, therefore, NOT ELIGIBLE subject matter under 35 U.S.C. § 101.
Claim 5
Claim 5 recites:
5. (Currently Amended) The method of claim 2, wherein values of the attention weights are learned during training of the neural network.
Applicant’s Claim 5 merely teaches “learning” mathematical “weights”. It does not integrate the abstract idea to a practical application, nor is it anything significantly more than the abstract idea. (See, 2106.05(a)(II).)
Claim 5 is, therefore, NOT ELIGIBLE subject matter under 35 U.S.C. § 101.
Claim 6
Claim 6 recites:
6. (Currently Amended) The method of claim 1, wherein generating the attention-weighted representation of the first block output by applying each attention factor to the corresponding channel of the first block output comprises:
scaling each channel of the first block output by the corresponding attention factor.
Applicant’s Claim 6 merely teaches “scaling” a “block” output (i.e., multiplying the neural network output by a number…mathematical steps). It does not integrate the abstract idea to a practical application, nor is it anything significantly more than the abstract idea. (See, 2106.05(a)(II).)
Claim 6 is, therefore, NOT ELIGIBLE subject matter under 35 U.S.C. § 101.
Claim 7
Claim 7 recites:
7. (Currently Amended) The method of claim 1, wherein generating the target block input from at least the attention-weighted representations of the first block outputs comprises:
combining the attention-weighted representations of the first block outputs using a set of connection weights, wherein each connection weight corresponds to a respective attention- weighted representation of a first block output.
Applicant’s Claim 7 merely teaches using a set of connection weights (mathematical steps). It does not integrate the abstract idea to a practical application, nor is it anything significantly more than the abstract idea. (See, 2106.05(a)(II).)
Claim 7 is, therefore, NOT ELIGIBLE subject matter under 35 U.S.C. § 101.
Claim 8
Claim 8 recites:
8. (Original) The method of claim 7, wherein combining the attention-weighted representations of the first block outputs using the set of connection weights comprises:
scaling each attention-weighted representation of a first block output by a function of the corresponding connection weight.
Applicant’s Claim 8 merely teaches “scaling” a “block” output (i.e., multiplying the neural network output by a number…mathematical steps). It does not integrate the abstract idea to a practical application, nor is it anything significantly more than the abstract idea. (See, 2106.05(a)(II).)
Claim 8 is, therefore, NOT ELIGIBLE subject matter under 35 U.S.C. § 101.
Claim 9
Claim 9 recites:
9. (Currently Amended) The method of claim 7, wherein values of the connection weights are learned during training of the neural network.
Applicant’s Claim 9 merely teaches the mathematical “learning” of connection weights. It does not integrate the abstract idea to a practical application, nor is it anything significantly more than the abstract idea. (See, 2106.05(a)(II).)
Claim 9 is, therefore, NOT ELIGIBLE subject matter under 35 U.S.C. § 101.
Claim 10
Claim 10 recites:
10. (Currently Amended) The method of claim 1, wherein:
each block in the neural network is associated with a respective level in a sequence of levels; and
for each given block that is associated with a given level that follows a first level in the sequence of levels, the given block only receives block outputs from other blocks that are associated with levels that precede the given level.
Applicant’s Claim 10 merely teaches the receipt of block outputs (mathematical data). It does not integrate the abstract idea to a practical application, nor is it anything significantly more than the abstract idea. (See, 2106.05(a)(II).)
Claim 10 is, therefore, NOT ELIGIBLE subject matter under 35 U.S.C. § 101.
Claim 11
Claim 11 recites:
11. (Original) The method of claim 10, wherein the target block is associated with a target level, and the target block receives:
(i) a respective first block output of each first block that is associated with a level that precedes the target level, and
(ii) a respective second block output of each second block that is associated with a level that precedes the target level.
Applicant’s Claim 11 merely teaches outputs of various “blocks” (neural networks). These outputs are mathematical data. It does not integrate the abstract idea to a practical application, nor is it anything significantly more than the abstract idea. (See, 2106.05(a)(II).)
Claim 11 is, therefore, NOT ELIGIBLE subject matter under 35 U.S.C. § 101.
Claim 12
Claim 12 recites:
12. (Currently Amended) The method of claim 1, wherein the neural network performs a video processing task.
Applicant’s Claim 12 merely teaches using a mathematical neural network. It does not integrate the abstract idea to a practical application, nor is it anything significantly more than the abstract idea. (See, 2106.05(a)(II).)
Claim 12 is, therefore, NOT ELIGIBLE subject matter under 35 U.S.C. § 101.
Claim 13
Claim 13 recites:
13. (Original) The method of claim 12, wherein the network input comprises a plurality of video frames.
Applicant’s Claim 13 merely teaches mathematical data. It does not integrate the abstract idea to a practical application, nor is it anything significantly more than the abstract idea. (See, 2106.05(a)(II).)
Claim 13 is, therefore, NOT ELIGIBLE subject matter under 35 U.S.C. § 101.
Claim 14
Claim 14 recites:
14. (Original) The method of claim 13, wherein the network input further comprises data defining one or more segmentation maps, wherein each segmentation map corresponds to a respective video frame and defines a segmentation of the video frame into one or more object classes.
Applicant’s Claim 14 merely teaches mathematical data. It does not integrate the abstract idea to a practical application, nor is it anything significantly more than the abstract idea. (See, 2106.05(a)(II).)
Claim 14 is, therefore, NOT ELIGIBLE subject matter under 35 U.S.C. § 101.
Claim 15
Claim 15 recites:
15. (Currently Amended) The method of claim 13, wherein the network input further comprises a plurality of optical flow frames corresponding to the plurality of video frames.
Applicant’s Claim 15 merely teaches mathematical data. It does not integrate the abstract idea to a practical application, nor is it anything significantly more than the abstract idea. (See, 2106.05(a)(II).)
Claim 15 is, therefore, NOT ELIGIBLE subject matter under 35 U.S.C. § 101.
Claim 16
Claim 16 recites:
16. (Currently Amended) The method of claim 14, wherein the neural network comprises a plurality of input blocks, wherein each input block includes one or more respective neural network layers, wherein the plurality of input blocks comprise:
(i) a first input block that processes the plurality of video frames, and
(ii) a second input block that processes the one or more segmentation maps.
Applicant’s Claim 16 merely teaches mathematical “blocks” (i.e., neural networks). It does not integrate the abstract idea to a practical application, nor is it anything significantly more than the abstract idea. (See, 2106.05(a)(II).)
Claim 16 is, therefore, NOT ELIGIBLE subject matter under 35 U.S.C. § 101.
Claim 17
Claim 17 recites:
17. (Currently Amended) The method of claim 12, wherein each block of the plurality of blocks is configured to process a block input at a respective temporal resolution.
Applicant’s Claim 17 merely teaches mathematical “blocks” (i.e., neural networks). It does not integrate the abstract idea to a practical application, nor is it anything significantly more than the abstract idea. (See, 2106.05(a)(II).)
Claim 17 is, therefore, NOT ELIGIBLE subject matter under 35 U.S.C. § 101.
Claim 18
Claim 18 recites:
18. (Original) The method of claim 17, wherein each block comprises one or more dilated temporal convolutional layers having a temporal dilation rate corresponding to the temporal resolution of the block.
Applicant’s Claim 18 merely teaches mathematical “blocks” (i.e., neural networks). It does not integrate the abstract idea to a practical application, nor is it anything significantly more than the abstract idea. (See, 2106.05(a)(II).)
Claim 18 is, therefore, NOT ELIGIBLE subject matter under 35 U.S.C. § 101.
Claim 21
Step 1 inquiry: Does this claim fall within a statutory category?
The preamble of the claim recites “21. (Currently Amended) A system comprising…” Therefore, it is a “system” (or “apparatus”), which is a statutory category of invention. Therefore, the answer to the inquiry is: “YES”.
Step 2A (Prong One) inquiry:
Are there limitations in Claim 21 that recite abstract ideas?
YES. The following limitations in Claim 21 recite abstract ideas that fall within at least one of the groupings of abstract ideas enumerated in the 2019 PEG. Specifically, they are “mental steps” and “mathematical concepts”:
• the neural network comprises a plurality of blocks that each include one or more respective neural network layers (mathematical steps)
• generating a target block input to the target block (mathematical steps)
• each first block output comprises a plurality of channels (mathematical steps)
• the first block outputs are generated by the first blocks during processing of the network input by the neural network (mathematical steps)
• generating a respective attention-weighted representation of each first block output (mathematical steps)
• at least one of the second block outputs is different than the first block output, wherein the second block outputs are generated by the second blocks during processing of the network input by the neural network (mathematical steps)
• processing the second block outputs (mathematical steps)
• generate a respective attention factor corresponding to each channel of the first block output (mathematical steps)
• generating the attention-weighted representation of the first block output by applying each attention factor to the corresponding channel of the first block output (mathematical steps)
• generating the target block input from at least the attention-weighted representations of the first block outputs (mathematical steps)
• processing the target block input using the target block to generate a target block output (mathematical steps)
Step 2A (Prong Two) inquiry:
Are there additional elements or a combination of elements in the claim that apply, rely on, or use the judicial exception in a manner that imposes a meaningful limit on the judicial exception, such that it is more than a drafting effort designed to monopolize the exception?
Applicant’s claims contain the following “additional elements”:
• one or more computers
• one or more storage devices communicatively coupled to the one or more computers
• receiving a respective first block output of each of one or more respective first blocks
• receiving a respective second block output of each of one or more second blocks
A “one or more computers” is a broad term which is described at a high level and includes general purpose computers. M.P.E.P. § 2016.05(f) recites:
2106.05(f) Mere Instructions To Apply An Exception [R-10.2019]
Another consideration when determining whether a claim integrates a judicial exception into a practical application in Step 2A Prong Two or recites significantly more than a judicial exception in Step 2B is whether the additional elements amount to more than a recitation of the words “apply it” (or an equivalent) or are more than mere instructions to implement an abstract idea or other exception on a computer. As explained by the Supreme Court, in order to make a claim directed to a judicial exception patent-eligible, the additional element or combination of elements must do “‘more than simply stat[e] the [judicial exception] while adding the words ‘apply it’”. Alice Corp. v. CLS Bank, 573 U.S. 208, 221, 110 USPQ2d 1976, 1982-83 (2014) (quoting Mayo Collaborative Servs. V. Prometheus Labs., Inc., 566 U.S. 66, 72, 101 USPQ2d 1961, 1965). Thus, for example, claims that amount to nothing more than an instruction to apply the abstract idea using a generic computer do not render an abstract idea eligible. Alice Corp., 573 U.S. at 223, 110 USPQ2d at 1983. See also 573 U.S. at 224, 110 USPQ2d at 1984 (warning against a § 101 analysis that turns on “the draftsman’s art”).
This “one or more computers” limitation does not integrate the additional element into a practical application and represents “insignificant extra-solution activity”. (See, M.P.E.P. § 2106.05(I)(A)).
A “one or more storage devices communicatively coupled to the one or more computers” is a broad term which is described at a high level. M.P.E.P. § 2106.05(d)(II) recites:
The courts have recognized the following computer functions as well‐understood, routine, and conventional functions when they are claimed in a merely generic manner (e.g., at a high level of generality) or as insignificant extra-solution activity.
***
iv. Storing and retrieving information in memory, Versata Dev. Group, Inc. v. SAP Am., Inc., 793 F.3d 1306, 1334, 115 USPQ2d 1681, 1701 (Fed. Cir. 2015); OIP Techs., 788 F.3d at 1363, 115 USPQ2d at 1092-93;
This “one or more storage devices communicatively coupled to the one or more computers” limitation does not integrate the additional element into a practical application and represents “insignificant extra-solution activity”. (See, M.P.E.P. § 2106.05(I)(A)).
A “receiving a respective first block output of each of one or more respective first blocks” is a broad term which is described at a high level. M.P.E.P. § 2106.05(d)(I)(2) recites in part:
2. A factual determination is required to support a conclusion that an additional element (or combination of additional elements) is well-understood, routine, conventional activity. Berkheimer v. HP, Inc., 881 F.3d 1360, 1368, 125 USPQ2d 1649, 1654 (Fed. Cir. 2018). However, this does not mean that a prior art search is necessary to resolve this inquiry. Instead, examiners should rely on what the courts have recognized, or those in the art would recognize, as elements that are well-understood, routine, conventional activity in the relevant field when making the required determination. For example, in many instances, the specification of the application may indicate that additional elements are well-known or conventional. See, e.g., Intellectual Ventures v. Symantec, 838 F.3d at 1317; 120 USPQ2d at 1359 ("The written description is particularly useful in determining what is well-known or conventional"); Internet Patents Corp. v. Active Network, Inc., 790 F.3d 1343, 1348, 115 USPQ2d 1414, 1418 (Fed. Cir. 2015) (relying on specification’s description of additional elements as "well-known", "common" and "conventional"); TLI Communications LLC v. AV Auto. LLC, 823 F.3d 607, 614, 118 USPQ2d 1744, 1748 (Fed. Cir. 2016) (Specification described additional elements as "either performing basic computer functions such as sending and receiving data, or performing functions ‘known’ in the art.").
Further, M.P.E.P. § 2106.05(d)(II) recites:
The courts have recognized the following computer functions as well‐understood, routine, and conventional functions when they are claimed in a merely generic manner (e.g., at a high level of generality) or as insignificant extra-solution activity.
i. Receiving or transmitting data over a network, e.g., using the Internet to gather data, Symantec, 838 F.3d at 1321, 120 USPQ2d at 1362 (utilizing an intermediary computer to forward information); TLI Communications LLC v. AV Auto. LLC, 823 F.3d 607, 610, 118 USPQ2d 1744, 1745 (Fed. Cir. 2016) (using a telephone for image transmission); OIP Techs., Inc., v. Amazon.com, Inc., 788 F.3d 1359, 1363, 115 USPQ2d 1090, 1093 (Fed. Cir. 2015) (sending messages over a network); buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355, 112 USPQ2d 1093, 1096 (Fed. Cir. 2014) (computer receives and sends information over a network); …
Merely using the conventional computer to receive data is well known, understood, and conventional. Thus, it adds nothing significantly more to the judicial exception.
This “receiving a respective first block output of each of one or more respective first blocks” limitation does not integrate the additional element into a practical application and represents “insignificant extra-solution activity”. (See, M.P.E.P. § 2106.05(I)(A)).
A “receiving a respective second block output of each of one or more second blocks” is a broad term which is described at a high level. M.P.E.P. § 2106.05(d)(I)(2) recites in part:
2. A factual determination is required to support a conclusion that an additional element (or combination of additional elements) is well-understood, routine, conventional activity. Berkheimer v. HP, Inc., 881 F.3d 1360, 1368, 125 USPQ2d 1649, 1654 (Fed. Cir. 2018). However, this does not mean that a prior art search is necessary to resolve this inquiry. Instead, examiners should rely on what the courts have recognized, or those in the art would recognize, as elements that are well-understood, routine, conventional activity in the relevant field when making the required determination. For example, in many instances, the specification of the application may indicate that additional elements are well-known or conventional. See, e.g., Intellectual Ventures v. Symantec, 838 F.3d at 1317; 120 USPQ2d at 1359 ("The written description is particularly useful in determining what is well-known or conventional"); Internet Patents Corp. v. Active Network, Inc., 790 F.3d 1343, 1348, 115 USPQ2d 1414, 1418 (Fed. Cir. 2015) (relying on specification’s description of additional elements as "well-known", "common" and "conventional"); TLI Communications LLC v. AV Auto. LLC, 823 F.3d 607, 614, 118 USPQ2d 1744, 1748 (Fed. Cir. 2016) (Specification described additional elements as "either performing basic computer functions such as sending and receiving data, or performing functions ‘known’ in the art.").
Further, M.P.E.P. § 2106.05(d)(II) recites:
The courts have recognized the following computer functions as well‐understood, routine, and conventional functions when they are claimed in a merely generic manner (e.g., at a high level of generality) or as insignificant extra-solution activity.
i. Receiving or transmitting data over a network, e.g., using the Internet to gather data, Symantec, 838 F.3d at 1321, 120 USPQ2d at 1362 (utilizing an intermediary computer to forward information); TLI Communications LLC v. AV Auto. LLC, 823 F.3d 607, 610, 118 USPQ2d 1744, 1745 (Fed. Cir. 2016) (using a telephone for image transmission); OIP Techs., Inc., v. Amazon.com, Inc., 788 F.3d 1359, 1363, 115 USPQ2d 1090, 1093 (Fed. Cir. 2015) (sending messages over a network); buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355, 112 USPQ2d 1093, 1096 (Fed. Cir. 2014) (computer receives and sends information over a network); …
Merely using the conventional computer to receive data is well known, understood, and conventional. Thus, it adds nothing significantly more to the judicial exception.
This “receiving a respective second block output of each of one or more second blocks” limitation does not integrate the additional element into a practical application and represents “insignificant extra-solution activity”. (See, M.P.E.P. § 2106.05(I)(A)).
The answer to the inquiry is “NO”, no additional elements integrate the claimed abstract idea into a practical application.
Step 2B inquiry:
Does the claim provide an inventive concept, i.e., does the claim recite additional element(s) or a combination of elements that amount to significantly more than the judicial exception in the claim?
Applicant’s claims contain the following “additional elements”:
• one or more computers
• one or more storage devices communicatively coupled to the one or more computers
• receiving a respective first block output of each of one or more respective first blocks
• receiving a respective second block output of each of one or more second blocks
A “one or more computers” is a broad term which is described at a high level and includes general purpose computers. M.P.E.P. § 2016.05(f) recites:
2106.05(f) Mere Instructions To Apply An Exception [R-10.2019]
Another consideration when determining whether a claim integrates a judicial exception into a practical application in Step 2A Prong Two or recites significantly more than a judicial exception in Step 2B is whether the additional elements amount to more than a recitation of the words “apply it” (or an equivalent) or are more than mere instructions to implement an abstract idea or other exception on a computer. As explained by the Supreme Court, in order to make a claim directed to a judicial exception patent-eligible, the additional element or combination of elements must do “‘more than simply stat[e] the [judicial exception] while adding the words ‘apply it’”. Alice Corp. v. CLS Bank, 573 U.S. 208, 221, 110 USPQ2d 1976, 1982-83 (2014) (quoting Mayo Collaborative Servs. V. Prometheus Labs., Inc., 566 U.S. 66, 72, 101 USPQ2d 1961, 1965). Thus, for example, claims that amount to nothing more than an instruction to apply the abstract idea using a generic computer do not render an abstract idea eligible. Alice Corp., 573 U.S. at 223, 110 USPQ2d at 1983. See also 573 U.S. at 224, 110 USPQ2d at 1984 (warning against a § 101 analysis that turns on “the draftsman’s art”).
Therefore, the claim as a whole does not amount to significantly more than the exception itself (i.e., there is no inventive concept in the claim). (See, M.P.E.P. § 2106.05(II)).
A “one or more storage devices communicatively coupled to the one or more computers” is a broad term which is described at a high level. M.P.E.P. § 2106.05(d)(II) recites:
The courts have recognized the following computer functions as well‐understood, routine, and conventional functions when they are claimed in a merely generic manner (e.g., at a high level of generality) or as insignificant extra-solution activity.
***
iv. Storing and retrieving information in memory, Versata Dev. Group, Inc. v. SAP Am., Inc., 793 F.3d 1306, 1334, 115 USPQ2d 1681, 1701 (Fed. Cir. 2015); OIP Techs., 788 F.3d at 1363, 115 USPQ2d at 1092-93;
Therefore, the claim as a whole does not amount to significantly more than the exception itself (i.e., there is no inventive concept in the claim). (See, M.P.E.P. § 2106.05(II)).
A “receiving a respective first block output of each of one or more respective first blocks” is a broad term which is described at a high level. M.P.E.P. § 2106.05(d)(I)(2) recites in part:
2. A factual determination is required to support a conclusion that an additional element (or combination of additional elements) is well-understood, routine, conventional activity. Berkheimer v. HP, Inc., 881 F.3d 1360, 1368, 125 USPQ2d 1649, 1654 (Fed. Cir. 2018). However, this does not mean that a prior art search is necessary to resolve this inquiry. Instead, examiners should rely on what the courts have recognized, or those in the art would recognize, as elements that are well-understood, routine, conventional activity in the relevant field when making the required determination. For example, in many instances, the specification of the application may indicate that additional elements are well-known or conventional. See, e.g., Intellectual Ventures v. Symantec, 838 F.3d at 1317; 120 USPQ2d at 1359 ("The written description is particularly useful in determining what is well-known or conventional"); Internet Patents Corp. v. Active Network, Inc., 790 F.3d 1343, 1348, 115 USPQ2d 1414, 1418 (Fed. Cir. 2015) (relying on specification’s description of additional elements as "well-known", "common" and "conventional"); TLI Communications LLC v. AV Auto. LLC, 823 F.3d 607, 614, 118 USPQ2d 1744, 1748 (Fed. Cir. 2016) (Specification described additional elements as "either performing basic computer functions such as sending and receiving data, or performing functions ‘known’ in the art.").
Further, M.P.E.P. § 2106.05(d)(II) recites:
The courts have recognized the following computer functions as well‐understood, routine, and conventional functions when they are claimed in a merely generic manner (e.g., at a high level of generality) or as insignificant extra-solution activity.
i. Receiving or transmitting data over a network, e.g., using the Internet to gather data, Symantec, 838 F.3d at 1321, 120 USPQ2d at 1362 (utilizing an intermediary computer to forward information); TLI Communications LLC v. AV Auto. LLC, 823 F.3d 607, 610, 118 USPQ2d 1744, 1745 (Fed. Cir. 2016) (using a telephone for image transmission); OIP Techs., Inc., v. Amazon.com, Inc., 788 F.3d 1359, 1363, 115 USPQ2d 1090, 1093 (Fed. Cir. 2015) (sending messages over a network); buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355, 112 USPQ2d 1093, 1096 (Fed. Cir. 2014) (computer receives and sends information over a network); …
Merely using the conventional computer to receive data is well known, understood, and conventional. Thus, it adds nothing significantly more to the judicial exception.
Therefore, the claim as a whole does not amount to significantly more than the exception itself (i.e., there is no inventive concept in the claim). (See, M.P.E.P. § 2106.05(II)).
A “receiving a respective second block output of each of one or more second blocks” is a broad term which is described at a high level. M.P.E.P. § 2106.05(d)(I)(2) recites in part:
2. A factual determination is required to support a conclusion that an additional element (or combination of additional elements) is well-understood, routine, conventional activity. Berkheimer v. HP, Inc., 881 F.3d 1360, 1368, 125 USPQ2d 1649, 1654 (Fed. Cir. 2018). However, this does not mean that a prior art search is necessary to resolve this inquiry. Instead, examiners should rely on what the courts have recognized, or those in the art would recognize, as elements that are well-understood, routine, conventional activity in the relevant field when making the required determination. For example, in many instances, the specification of the application may indicate that additional elements are well-known or conventional. See, e.g., Intellectual Ventures v. Symantec, 838 F.3d at 1317; 120 USPQ2d at 1359 ("The written description is particularly useful in determining what is well-known or conventional"); Internet Patents Corp. v. Active Network, Inc., 790 F.3d 1343, 1348, 115 USPQ2d 1414, 1418 (Fed. Cir. 2015) (relying on specification’s description of additional elements as "well-known", "common" and "conventional"); TLI Communications LLC v. AV Auto. LLC, 823 F.3d 607, 614, 118 USPQ2d 1744, 1748 (Fed. Cir. 2016) (Specification described additional elements as "either performing basic computer functions such as sending and receiving data, or performing functions ‘known’ in the art.").
Further, M.P.E.P. § 2106.05(d)(II) recites:
The courts have recognized the following computer functions as well‐understood, routine, and conventional functions when they are claimed in a merely generic manner (e.g., at a high level of generality) or as insignificant extra-solution activity.
i. Receiving or transmitting data over a network, e.g., using the Internet to gather data, Symantec, 838 F.3d at 1321, 120 USPQ2d at 1362 (utilizing an intermediary computer to forward information); TLI Communications LLC v. AV Auto. LLC, 823 F.3d 607, 610, 118 USPQ2d 1744, 1745 (Fed. Cir. 2016) (using a telephone for image transmission); OIP Techs., Inc., v. Amazon.com, Inc., 788 F.3d 1359, 1363, 115 USPQ2d 1090, 1093 (Fed. Cir. 2015) (sending messages over a network); buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355, 112 USPQ2d 1093, 1096 (Fed. Cir. 2014) (computer receives and sends information over a network); …
Merely using the conventional computer to receive data is well known, understood, and conventional. Thus, it adds nothing significantly more to the judicial exception.
Therefore, the claim as a whole does not amount to significantly more than the exception itself (i.e., there is no inventive concept in the claim). (See, M.P.E.P. § 2106.05(II)).
Therefore, the answer to the inquiry is “NO”, no additional elements provide an inventive concept that is significantly more than the claimed abstract ideas the claimed abstract idea into a practical application.
Claim 21 is, therefore, NOT ELIGIBLE subject matter under 35 U.S.C. § 101.
Claim 22
Step 1 inquiry: Does this claim fall within a statutory category?
The preamble of the claim recites “22. (Currently Amended) One or more non-transitory computer storage media storing instructions that when executed by one or more computers cause the one or more computers to perform operations for processing a network input using a neural network to generate a network output, wherein the neural network comprises a plurality of blocks that each include one or more respective neural network layers, wherein each block is configured to process a respective block input to generate a respective block output, the operations comprising, for each of one or more target blocks of the neural network…” Therefore, it is a “non-transitory computer storage media” (or “non-transitory computer readable storage medium”). Therefore, it fails to properly claim a “product of manufacture”. Therefore, the answer to the inquiry is: “NO”.
Step 2A (Prong One) inquiry:
Are there limitations in Claim 22 that recite abstract ideas?
YES. The following limitations in Claim 22 recite abstract ideas that fall within at least one of the groupings of abstract ideas enumerated in the 2019 PEG. Specifically, they are “mental steps” and “mathematical concepts”:
• the neural network comprises a plurality of blocks that each include one or more respective neural network layers (mathematical steps)
• generating a target block input to the target block (mathematical steps)
• each first block output comprises a plurality of channels (mathematical steps)
• the first block outputs are generated by the first blocks during processing of the network input by the neural network (mathematical steps)
• generating a respective attention-weighted representation of each first block output (mathematical steps)
• at least one of the second block outputs is different than the first block output, wherein the second block outputs are generated by the second blocks during processing of the network input by the neural network (mathematical steps)
• processing the second block outputs (mathematical steps)
• generate a respective attention factor corresponding to each channel of the first block output (mathematical steps)
• generating the attention-weighted representation of the first block output by applying each attention factor to the corresponding channel of the first block output (mathematical steps)
• generating the target block input from at least the attention-weighted representations of the first block outputs (mathematical steps)
• processing the target block input using the target block to generate a target block output (mathematical steps)
Step 2A (Prong Two) inquiry:
Are there additional elements or a combination of elements in the claim that apply, rely on, or use the judicial exception in a manner that imposes a meaningful limit on the judicial exception, such that it is more than a drafting effort designed to monopolize the exception?
Applicant’s claims contain the following “additional elements”:
• receiving a respective first block output of each of one or more respective first blocks
• receiving a respective second block output of each of one or more second blocks
A “receiving a respective first block output of each of one or more respective first blocks” is a broad term which is described at a high level. M.P.E.P. § 2106.05(d)(I)(2) recites in part:
2. A factual determination is required to support a conclusion that an additional element (or combination of additional elements) is well-understood, routine, conventional activity. Berkheimer v. HP, Inc., 881 F.3d 1360, 1368, 125 USPQ2d 1649, 1654 (Fed. Cir. 2018). However, this does not mean that a prior art search is necessary to resolve this inquiry. Instead, examiners should rely on what the courts have recognized, or those in the art would recognize, as elements that are well-understood, routine, conventional activity in the relevant field when making the required determination. For example, in many instances, the specification of the application may indicate that additional elements are well-known or conventional. See, e.g., Intellectual Ventures v. Symantec, 838 F.3d at 1317; 120 USPQ2d at 1359 ("The written description is particularly useful in determining what is well-known or conventional"); Internet Patents Corp. v. Active Network, Inc., 790 F.3d 1343, 1348, 115 USPQ2d 1414, 1418 (Fed. Cir. 2015) (relying on specification’s description of additional elements as "well-known", "common" and "conventional"); TLI Communications LLC v. AV Auto. LLC, 823 F.3d 607, 614, 118 USPQ2d 1744, 1748 (Fed. Cir. 2016) (Specification described additional elements as "either performing basic computer functions such as sending and receiving data, or performing functions ‘known’ in the art.").
Further, M.P.E.P. § 2106.05(d)(II) recites:
The courts have recognized the following computer functions as well‐understood, routine, and conventional functions when they are claimed in a merely generic manner (e.g., at a high level of generality) or as insignificant extra-solution activity.
i. Receiving or transmitting data over a network, e.g., using the Internet to gather data, Symantec, 838 F.3d at 1321, 120 USPQ2d at 1362 (utilizing an intermediary computer to forward information); TLI Communications LLC v. AV Auto. LLC, 823 F.3d 607, 610, 118 USPQ2d 1744, 1745 (Fed. Cir. 2016) (using a telephone for image transmission); OIP Techs., Inc., v. Amazon.com, Inc., 788 F.3d 1359, 1363, 115 USPQ2d 1090, 1093 (Fed. Cir. 2015) (sending messages over a network); buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355, 112 USPQ2d 1093, 1096 (Fed. Cir. 2014) (computer receives and sends information over a network); …
Merely using the conventional computer to receive data is well known, understood, and conventional. Thus, it adds nothing significantly more to the judicial exception.
This “receiving a respective first block output of each of one or more respective first blocks” limitation does not integrate the additional element into a practical application and represents “insignificant extra-solution activity”. (See, M.P.E.P. § 2106.05(I)(A)).
A “receiving a respective second block output of each of one or more second blocks” is a broad term which is described at a high level. M.P.E.P. § 2106.05(d)(I)(2) recites in part:
2. A factual determination is required to support a conclusion that an additional element (or combination of additional elements) is well-understood, routine, conventional activity. Berkheimer v. HP, Inc., 881 F.3d 1360, 1368, 125 USPQ2d 1649, 1654 (Fed. Cir. 2018). However, this does not mean that a prior art search is necessary to resolve this inquiry. Instead, examiners should rely on what the courts have recognized, or those in the art would recognize, as elements that are well-understood, routine, conventional activity in the relevant field when making the required determination. For example, in many instances, the specification of the application may indicate that additional elements are well-known or conventional. See, e.g., Intellectual Ventures v. Symantec, 838 F.3d at 1317; 120 USPQ2d at 1359 ("The written description is particularly useful in determining what is well-known or conventional"); Internet Patents Corp. v. Active Network, Inc., 790 F.3d 1343, 1348, 115 USPQ2d 1414, 1418 (Fed. Cir. 2015) (relying on specification’s description of additional elements as "well-known", "common" and "conventional"); TLI Communications LLC v. AV Auto. LLC, 823 F.3d 607, 614, 118 USPQ2d 1744, 1748 (Fed. Cir. 2016) (Specification described additional elements as "either performing basic computer functions such as sending and receiving data, or performing functions ‘known’ in the art.").
Further, M.P.E.P. § 2106.05(d)(II) recites:
The courts have recognized the following computer functions as well‐understood, routine, and conventional functions when they are claimed in a merely generic manner (e.g., at a high level of generality) or as insignificant extra-solution activity.
i. Receiving or transmitting data over a network, e.g., using the Internet to gather data, Symantec, 838 F.3d at 1321, 120 USPQ2d at 1362 (utilizing an intermediary computer to forward information); TLI Communications LLC v. AV Auto. LLC, 823 F.3d 607, 610, 118 USPQ2d 1744, 1745 (Fed. Cir. 2016) (using a telephone for image transmission); OIP Techs., Inc., v. Amazon.com, Inc., 788 F.3d 1359, 1363, 115 USPQ2d 1090, 1093 (Fed. Cir. 2015) (sending messages over a network); buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355, 112 USPQ2d 1093, 1096 (Fed. Cir. 2014) (computer receives and sends information over a network); …
Merely using the conventional computer to receive data is well known, understood, and conventional. Thus, it adds nothing significantly more to the judicial exception.
This “receiving a respective second block output of each of one or more second blocks” limitation does not integrate the additional element into a practical application and represents “insignificant extra-solution activity”. (See, M.P.E.P. § 2106.05(I)(A)).
The answer to the inquiry is “NO”, no additional elements integrate the claimed abstract idea into a practical application.
Step 2B inquiry:
Does the claim provide an inventive concept, i.e., does the claim recite additional element(s) or a combination of elements that amount to significantly more than the judicial exception in the claim?
Applicant’s claims contain the following “additional elements”:
• receiving a respective first block output of each of one or more respective first blocks
• receiving a respective second block output of each of one or more second blocks
A “receiving a respective first block output of each of one or more respective first blocks” is a broad term which is described at a high level. M.P.E.P. § 2106.05(d)(I)(2) recites in part:
2. A factual determination is required to support a conclusion that an additional element (or combination of additional elements) is well-understood, routine, conventional activity. Berkheimer v. HP, Inc., 881 F.3d 1360, 1368, 125 USPQ2d 1649, 1654 (Fed. Cir. 2018). However, this does not mean that a prior art search is necessary to resolve this inquiry. Instead, examiners should rely on what the courts have recognized, or those in the art would recognize, as elements that are well-understood, routine, conventional activity in the relevant field when making the required determination. For example, in many instances, the specification of the application may indicate that additional elements are well-known or conventional. See, e.g., Intellectual Ventures v. Symantec, 838 F.3d at 1317; 120 USPQ2d at 1359 ("The written description is particularly useful in determining what is well-known or conventional"); Internet Patents Corp. v. Active Network, Inc., 790 F.3d 1343, 1348, 115 USPQ2d 1414, 1418 (Fed. Cir. 2015) (relying on specification’s description of additional elements as "well-known", "common" and "conventional"); TLI Communications LLC v. AV Auto. LLC, 823 F.3d 607, 614, 118 USPQ2d 1744, 1748 (Fed. Cir. 2016) (Specification described additional elements as "either performing basic computer functions such as sending and receiving data, or performing functions ‘known’ in the art.").
Further, M.P.E.P. § 2106.05(d)(II) recites:
The courts have recognized the following computer functions as well‐understood, routine, and conventional functions when they are claimed in a merely generic manner (e.g., at a high level of generality) or as insignificant extra-solution activity.
i. Receiving or transmitting data over a network, e.g., using the Internet to gather data, Symantec, 838 F.3d at 1321, 120 USPQ2d at 1362 (utilizing an intermediary computer to forward information); TLI Communications LLC v. AV Auto. LLC, 823 F.3d 607, 610, 118 USPQ2d 1744, 1745 (Fed. Cir. 2016) (using a telephone for image transmission); OIP Techs., Inc., v. Amazon.com, Inc., 788 F.3d 1359, 1363, 115 USPQ2d 1090, 1093 (Fed. Cir. 2015) (sending messages over a network); buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355, 112 USPQ2d 1093, 1096 (Fed. Cir. 2014) (computer receives and sends information over a network); …
Merely using the conventional computer to receive data is well known, understood, and conventional. Thus, it adds nothing significantly more to the judicial exception.
Therefore, the claim as a whole does not amount to significantly more than the exception itself (i.e., there is no inventive concept in the claim). (See, M.P.E.P. § 2106.05(II)).
A “receiving a respective second block output of each of one or more second blocks” is a broad term which is described at a high level. M.P.E.P. § 2106.05(d)(I)(2) recites in part:
2. A factual determination is required to support a conclusion that an additional element (or combination of additional elements) is well-understood, routine, conventional activity. Berkheimer v. HP, Inc., 881 F.3d 1360, 1368, 125 USPQ2d 1649, 1654 (Fed. Cir. 2018). However, this does not mean that a prior art search is necessary to resolve this inquiry. Instead, examiners should rely on what the courts have recognized, or those in the art would recognize, as elements that are well-understood, routine, conventional activity in the relevant field when making the required determination. For example, in many instances, the specification of the application may indicate that additional elements are well-known or conventional. See, e.g., Intellectual Ventures v. Symantec, 838 F.3d at 1317; 120 USPQ2d at 1359 ("The written description is particularly useful in determining what is well-known or conventional"); Internet Patents Corp. v. Active Network, Inc., 790 F.3d 1343, 1348, 115 USPQ2d 1414, 1418 (Fed. Cir. 2015) (relying on specification’s description of additional elements as "well-known", "common" and "conventional"); TLI Communications LLC v. AV Auto. LLC, 823 F.3d 607, 614, 118 USPQ2d 1744, 1748 (Fed. Cir. 2016) (Specification described additional elements as "either performing basic computer functions such as sending and receiving data, or performing functions ‘known’ in the art.").
Further, M.P.E.P. § 2106.05(d)(II) recites:
The courts have recognized the following computer functions as well‐understood, routine, and conventional functions when they are claimed in a merely generic manner (e.g., at a high level of generality) or as insignificant extra-solution activity.
i. Receiving or transmitting data over a network, e.g., using the Internet to gather data, Symantec, 838 F.3d at 1321, 120 USPQ2d at 1362 (utilizing an intermediary computer to forward information); TLI Communications LLC v. AV Auto. LLC, 823 F.3d 607, 610, 118 USPQ2d 1744, 1745 (Fed. Cir. 2016) (using a telephone for image transmission); OIP Techs., Inc., v. Amazon.com, Inc., 788 F.3d 1359, 1363, 115 USPQ2d 1090, 1093 (Fed. Cir. 2015) (sending messages over a network); buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355, 112 USPQ2d 1093, 1096 (Fed. Cir. 2014) (computer receives and sends information over a network); …
Merely using the conventional computer to receive data is well known, understood, and conventional. Thus, it adds nothing significantly more to the judicial exception.
Therefore, the claim as a whole does not amount to significantly more than the exception itself (i.e., there is no inventive concept in the claim). (See, M.P.E.P. § 2106.05(II)).
Therefore, the answer to the inquiry is “NO”, no additional elements provide an inventive concept that is significantly more than the claimed abstract ideas the claimed abstract idea into a practical application.
Claim 22 is, therefore, NOT ELIGIBLE subject matter under 35 U.S.C. § 101.
Response to Arguments
Applicant's arguments filed 24 FEB 2026 have been fully considered but they are not persuasive. Specifically, Applicant argues:
Argument 1
The rejections should be withdrawn because the claims recite a specific technological solution to a technological problem.
Even if the claims were deemed to recite an abstract idea (which is not conceded), the claims are not directed to an abstract idea. Instead, they are limited to a particular technical implementation that achieves a technological solution to a technological problem, and thus the rejections should be withdrawn.
The MPEP now explicitly recognizes that an "improved way of training a machine learning model" constitutes an improvement in computer functionality. MPEP 2106.05(a).
The MPEP states that improvements to system performance based upon "adjustments to parameters of a machine learning model associated with tasks" are "tantamount to how the machine learning model itself would function in operation" and are not subsumed in a mathematical calculation. MPEP 2106.04(d)(1).
The claimed invention provides an innovative approach for training a machine learning model which enables an improvement in the functioning of a computer, e.g., by reducing consumption of computational resources such as memory and computing power required to train the machine learning model. The claimed invention also provides an improvement in machine learning technology, e.g., by enabling neural networks to perform machine learning tasks with higher accuracy.
The claimed invention achieves these improvements by configuring a neural network that includes a plurality of blocks to perform a "peer-attention" mechanism (e.g., generating a target block input by receiving a first block's output and a different second block's output to generate attention factors for a first block's output). That is, to generate an input for a target block, the method of the claimed invention receives the output from a first source block and also receives the output from a different, second source block. This second block's output is processed to generate a set of attention factors, which act as dynamic weights corresponding to each feature channel of the first block's output. The method then applies these weights to the first block's output, scaling each feature channel based on the information provided by the second block. This creates a new, attention-weighted representation that is then used to generate the input for the target block, which in turn processes that input to generate its own output.
The Specification describes how the claimed invention provides these improvements, e.g., at paragraphs [0026]-[0027] (emphasis added):
[0026] This specification describes a neural network that implements a "peer-attention" mechanism, i.e., where the outputs of one or more blocks in the neural network are processed to generate a set of attention factors that are applied to the channels of an input to another block in the neural network. Generally, the outputs of different blocks in the neural network can encode different information at various levels of abstraction. Using peer-attention enables the neural network to focus on relevant features of the network input by integrating different information across various levels of abstraction, and can thereby improve the performance (e.g., prediction accuracy) of the neural network. Moreover, using peer-attention can enable the neural network to achieve an acceptable level of performance over fewer training iterations, thereby reducing consumption of computational resources (e.g., memory and computing power) during training.
[0027] The peer-attention mechanism can be flexible and data-driven, e.g., because the attention weights (i.e., that govern the influence that each block exerts on the attention factors applied to the input channels of each other block) are learned, and because the attention factors are dynamically conditioned on the network input. The peer-attention mechanism can therefore improve the performance of the neural network more than a conventional attention mechanism, e.g., that can be hand-engineered or hard-coded.
The claims explicitly recite steps that enable the asserted improvements to the functioning of a computer and to machine learning technology, e.g., claim 1 recites (emphasis added):
generating a respective attention-weighted representation of each first block output, comprising, for each first block output:
receiving a respective second block output of each of one or more second blocks, wherein at least one of the second block outputs is different than the first block output, wherein the second block outputs are generated by the second blocks during processing of the training network input by the neural network;
processing the second block outputs to generate a respective attention factor corresponding to each channel of the first block output; and
generating the attention-weighted representation of the first block output by applying each attention factor to the corresponding channel of the first block output
These claim limitations correspond directly to the technical improvements described in the Specification, demonstrating that the claims include the steps necessary to achieve the described technical improvements.
Accordingly, withdrawal of the § 101 rejection is respectfully requested.
The changes to the M.P.E.P. relevant to this matter are as follows:
• The following paragraph was added to the end of MPEP § 2106.04(d), subsection III:
In Ex Parte Desjardins, Appeal No. 2024-000567 (PTAB September 26, 2025, Appeals Review Panel Decision) (precedential), the claimed invention was a method of training a machine learning model on a series of tasks. The Appeals Review Panel (ARP) overall credited benefits including reduced storage, reduced system complexity and streamlining, and preservation of performance attributes associated with earlier tasks during subsequent computational tasks as technological improvements that were disclosed in the patent application specification. Specifically, the ARP upheld the Step 2A Prong One finding that the claims recited an abstract idea (i.e., mathematical concept). In Step 2A Prong Two, the ARP then determined that the specification identified improvements as to how the machine learning model itself operates, including training a machine learning model to learn new tasks while protecting knowledge about previous tasks to overcome the problem of “catastrophic forgetting” encountered in continual learning systems. Importantly, the ARP evaluated the claims as a whole in discerning at least the limitation “adjust the first values of the plurality of parameters to optimize performance of the machine learning model on the second machine learning task while protecting performance of the machine learning model on the first machine learning task” reflected the improvement disclosed in the specification. Accordingly, the claims as a whole integrated what would otherwise be a judicial exception instead into a practical application at Step 2A Prong Two, and therefore the claims were deemed to be outside any specific, enumerated judicial exception (Step 2A: NO).
• The second and last paragraphs of MPEP § 2106.04(d)(1) were revised to read:
The courts have not provided an explicit test for this consideration, but have instead illustrated how it is evaluated in numerous decisions. These decisions, and a detailed explanation of how examiners should evaluate this consideration are provided in MPEP § 2106.05(a). In short, first the specification should be evaluated to determine if the disclosure provides sufficient details such that one of ordinary skill in the art would recognize the claimed invention as providing an improvement in the functioning of a computer, or an improvement to other technology or a technical field. The specification need not explicitly set forth the improvement, but it must describe the invention such that the improvement would be apparent to one of ordinary skill in the art. Conversely, if the specification explicitly sets forth an improvement but only in a conclusory manner (i.e., a bare assertion of an improvement without the detail necessary to be apparent to a person of ordinary skill in the art), the examiner should not determine that the claim improves technology or a technical field. Second, if the specification sets forth an improvement in technology or a technical field, the claim must be evaluated to ensure that the claim itself reflects the disclosed improvement, i.e., that the claim includes the components or steps of the invention that provide the improvement described in the specification. The claim itself does not need to explicitly recite the improvement described in the specification (e.g., “thereby increasing the bandwidth of the channel”). See, e.g., Ex Parte Desjardins, Appeal No. 2024-000567 (PTAB September 26, 2025, Appeals Review Panel Decision) (precedential), in which the specification identified the improvement to machine learning technology by explaining how the machine learning model is trained to learn new tasks while protecting knowledge about previous tasks to overcome the problem of “catastrophic forgetting,” and that the claims reflected the improvement identified in the specification. Indeed, enumerated improvements identified in the Desjardins specification included disclosures of the effective learning of new tasks in succession in connection with specifically protecting knowledge concerning previously accomplished tasks; allowing the system to reduce use of storage capacity; and the enablement of reduced complexity in the system. Such improvements were tantamount to how the machine learning model itself would function in operation and therefore not subsumed in the identified mathematical calculation.
*****
Examples of claims that improve technology or a technical field and are not directed to a judicial exception include: Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1339, 118 USPQ2d 1684, 1691-92 (Fed. Cir. 2016) (data structure claims to a self-referential table for a computer database were directed to an improvement in computer capabilities and not directed to an abstract idea); McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299, 1315, 120 USPQ2d 1091, 1102-03 (Fed. Cir. 2016) (claims to automatic lip synchronization and facial expression animation were directed to an improvement in computer-related technology and not directed to an abstract idea); Visual Memory LLC v. NVIDIA Corp., 867 F.3d 1253, 1259 60, 123 USPQ2d 1712, 1717 (Fed. Cir. 2017) (claims to an enhanced computer memory system were directed to an improvement in computer capabilities and not an abstract idea); Finjan Inc. v. Blue Coat Systems, Inc., 879 F.3d 1299, 125 USPQ2d 1282 (Fed. Cir. 2018) (claims to virus scanning were found to be an improvement in computer technology and not directed to an abstract idea); SRI Int’l, Inc. v. Cisco Systems, Inc., 930 F.3d 1295, 1303 (Fed. Cir. 2019) (claims to detecting suspicious activity by using network monitors and analyzing network packets were found to be an improvement in computer network technology and not directed to an abstract idea); Ex Parte Desjardins (claims to a method of training a machine learning model were directed to improvements in the machine learning technology itself and additionally included data structure elements reciting adjustments in values to plurality of performance parameters while preserving prior values). Additional examples are provided in MPEP § 2106.05(a).
Note that the actual M.P.E.P. changes point to “improvements” that are consistently present and not transitory. By contrast, Applicant's argued improvements are not taught to be so consistently present. Applicant's Specification teaches that the modifications “can…improve” performance. Therefore, in certain applications, the improvement could be completely nonexistent.
Applicant’s Specification, paragraphs [0026]-[0027] recites:
[0026] This specification describes a neural network that implements a "peer-attention" mechanism, i.e., where the outputs of one or more blocks in the neural network are processed to generate a set of attention factors that are applied to the channels of an input to another block in the neural network. Generally, the outputs of different blocks in the neural network can encode different information at various levels of abstraction. Using peer-attention enables the neural network to focus on relevant features of the network input by integrating different information across various levels of abstraction, and can thereby improve the performance (e.g., prediction accuracy) of the neural network. Moreover, using peer-attention can enable the neural network to achieve an acceptable level of performance over fewer training iterations, thereby reducing consumption of computational resources (e.g., memory and computing power) during training.
[0027] The peer-attention mechanism can be flexible and data-driven, e.g., because the attention weights (i.e., that govern the influence that each block exerts on the attention factors applied to the input channels of each other block) are learned, and because the attention factors are dynamically conditioned on the network input. The peer-attention mechanism can therefore improve the performance of the neural network more than a conventional attention mechanism, e.g., that can be hand-engineered or hard-coded.
Note that M.P.E.P. 2106.04(d)(1) also recites:
2106.04(d)(1) Evaluating Improvements in the Functioning of a Computer, or an Improvement to Any Other Technology or Technical Field in Step 2A Prong Two [R-10.2019]
A claim reciting a judicial exception is not directed to the judicial exception if it also recites additional elements demonstrating that the claim as a whole integrates the exception into a practical application. One way to demonstrate such integration is when the claimed invention improves the functioning of a computer or improves another technology or technical field. The application or use of the judicial exception in this manner meaningfully limits the claim by going beyond generally linking the use of the judicial exception to a particular technological environment, and thus transforms a claim into patent-eligible subject matter. Such claims are eligible at Step 2A because they are not “directed to” the recited judicial exception.
The courts have not provided an explicit test for this consideration, but have instead illustrated how it is evaluated in numerous decisions. These decisions, and a detailed explanation of how examiners should evaluate this consideration are provided in MPEP § 2106.05(a). In short, first the specification should be evaluated to determine if the disclosure provides sufficient details such that one of ordinary skill in the art would recognize the claimed invention as providing an improvement. The specification need not explicitly set forth the improvement, but it must describe the invention such that the improvement would be apparent to one of ordinary skill in the art. Conversely, if the specification explicitly sets forth an improvement but in a conclusory manner (i.e., a bare assertion of an improvement without the detail necessary to be apparent to a person of ordinary skill in the art), the examiner should not determine the claim improves technology. Second, if the specification sets forth an improvement in technology, the claim must be evaluated to ensure that the claim itself reflects the disclosed improvement. That is, the claim includes the components or steps of the invention that provide the improvement described in the specification. The claim itself does not need to explicitly recite the improvement described in the specification (e.g., “thereby increasing the bandwidth of the channel”).
Therefore, teachings in the Specification that “can thereby improve” do not “describe the invention such that the improvement would be apparent to one of ordinary skill in the art”, since such transitory improvement can be completely non-existent in some applications. The improvement in Desjardins was not something that can happen. It was consistent. It was described such that the improvement was apparent to one of ordinary skill in the art. Applicant's claims are distinguishable from Desjardins on this point.
Applicant's argument is unpersuasive.
The rejections stand.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiries concerning this communication or earlier communications from the examiner should be directed to Wilbert L. Starks, Jr., who may be reached Monday through Friday, between 8:00 a.m. and 5:00 p.m. EST. or via telephone at (571) 272-3691 or email: Wilbert.Starks@uspto.gov.
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/WILBERT L STARKS/
Primary Examiner, Art Unit 2122
WLS
21 MAR 2026