DETAILED ACTION
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 .
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
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Claims 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent Number 11,908,193. Although the claims at issue are not identical, they are not patentably distinct from each other because the instant application claims are a broader version of the claims that appear in the Patent. Both inventions are directed to a system to generates a custom artificial neural network by choosing existing similar neural network designs and chooses existing similar datasets as a target dataset. The system creates “fingerprints” for both the existing networks and the datasets so they can be compared numerically and measures how similar the target dataset is to the known datasets to estimate how each known network would perform on the target dataset. It further measures how representative each known network is among the set of candidate networks using centrality scores and combines both estimated performances and centrality scores into interpolation weights.
Claim Rejections - 35 USC § 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.
Claims 1-20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
Step 1 analysis:
In the instant case, the claims are directed to a method (claim 1 and its dependent claims) and system (claim 11 and its dependent claims). Thus, each of the claims falls within one of the four statutory categories (i.e., process, machine, manufacture, or composition of matter).
Step 2A analysis:
Based on the claims being determined to be within of the four categories (Step 1), it must be determined if the claims are directed to a judicial exception (i.e., law of nature, natural phenomenon, and abstract idea), in this case the claims fall within the judicial exception of an abstract idea. Specifically the abstract ideas of “Mental Processes” (concepts performed in the human mind including evaluation, observation, judgment, opinion) and “Mathematical concepts” (mathematical relationships and calculations).
Step 2A: Prong 1 analysis:
The claim(s) recite(s):
Independent Claim 1 (also Claim 11 as being analogous claim):
selecting a plurality of existing ANN architectures of a same architecture type and a plurality of existing datasets of a same data type as the target dataset of the sensed data - This limitation is directed to the selection of architectures and datasets of a same data type; therefore, it amounts to observing, evaluating and judging (mental steps), being abstract ideas;
calculating a plurality of ANN architecture fingerprints including an ANN architecture fingerprint of each of the plurality of the existing ANN architectures - This limitation is directed to the abstract idea of a mathematical concept, as calculating fingerprints amounts to performing a mathematical calculation (mathematical function);
calculating ANN architecture pairwise similarities among the plurality of existing ANN architectures using the plurality of ANN architecture fingerprints - This limitation is directed to the abstract idea of a mathematical concept, as calculating pairwise similarities amounts to performing a mathematical calculation (mathematical function);
calculating centrality scores for the plurality of existing ANN architectures using the ANN architecture pairwise similarities - This limitation is directed to the abstract idea of a mathematical concept, as calculating scores amounts to performing a mathematical calculation (mathematical function);
calculating dataset fingerprints including a dataset fingerprint of the target dataset and each of the plurality of existing datasets - This limitation is directed to the abstract idea of a mathematical concept, as calculating fingerprints amounts to performing a mathematical calculation (mathematical function);
calculating dataset pairwise similarities between the target dataset and each of the plurality of existing datasets using the dataset fingerprints - This limitation is directed to the abstract idea of a mathematical concept, as calculating pairwise similarities amounts to performing a mathematical calculation (mathematical function);
obtaining performance scores of the existing ANN architectures on the existing datasets - This limitation is directed to obtaining performance scores; therefore, it amounts to mathematical relationships and values, being abstract ideas;
calculating target performance scores for the plurality of existing ANN architectures on the target dataset using the performance scores of the plurality of existing ANN architectures on the existing datasets and the dataset pairwise similarities - This limitation is directed to the abstract idea of a mathematical concept, as calculating performance scores amounts to performing a mathematical calculation (mathematical function);
calculating interpolation weights for the plurality of existing ANN architectures using the target performance scores of the existing ANN architectures on the target dataset and the centrality scores calculated using the ANN pairwise similarities- This limitation is directed to the abstract idea of a mathematical concept, as calculating interpolation weights amounts to performing a mathematical calculation (mathematical function);
obtaining the custom ANN architecture by interpolating among the plurality of existing ANN architectures using the calculated interpolation weights - This limitation is directed to the abstract idea of a mathematical concept, as interpolating architectures to obtain a custom architecture using interpolation weights amounts to performing a mathematical calculation (mathematical function).
Step 2A: Prong 2 analysis:
This judicial exception is not integrated into a practical application because it recites the additional elements:
Independent Claim 1 recites the additional elements:
obtaining performance scores of the existing ANN architectures on the existing datasets - this limitation recites obtaining performance scores, which amounts to mere data gathering of the mathematical values, being an insignificant extra solution activity per MPEP 2106.05(g)(3): “Whether the limitation amounts to necessary data gathering and outputting, (i.e., all uses of the recited judicial exception require such data gathering or data output));
sensing, by one or more sensors, the sensed data - this limitation is directed to mere instructions to apply an exception, as the use of machinery in its ordinary capacity (such as a sensor for sensing data) amounts to invoking computers merely as a tool to perform an existing process (see MPEP 2106.05(f) (2));
processing, by the custom ANN architecture, the sensed data - this limitation is directed to mere instructions to apply an exception, as the use of a computer (such as an ANN running on a computer for processing data) amounts to invoking computers merely as a tool to perform an existing process (see MPEP 2106.05(f) (2));
controlling an application based at least on the processed sensed data- this limitation amounts to merely indicating a field of use or technological environment [see MPEP 2106.05(h)] and fails to integrate the judicial exception into a practical application.
Independent claim 11 recites the additional elements:
a database- this database is recited at a high level of generality, therefore, it amounts to components of a general purpose computer that applies a judicial exception, by use of conventional computer functions; therefore, it does not qualify as a particular machine (see MPEP 2106.05(b));
one or more computing devices connected through a network to the database- these computing devices are recited at a high level of generality, therefore, they amount to components of a general purpose computer that applies a judicial exception, by use of conventional computer functions; therefore, it does not qualify as a particular machine (see MPEP 2106.05(b));
memory including instructions that, when executed by the one or more computing devices, enables the system to- this memory is recited at a high level of generality, therefore, it amounts to components of a general purpose computer that applies a judicial exception, by use of conventional computer functions; therefore, it does not qualify as a particular machine (see MPEP 2106.05(b));
obtain performance scores of the existing ANN architectures on the existing datasets from the database - this limitation recites obtaining performance scores, which amounts to mere data gathering of the mathematical values, being an insignificant extra solution activity per MPEP 2106.05(g)(3): “Whether the limitation amounts to necessary data gathering and outputting, (i.e., all uses of the recited judicial exception require such data gathering or data output));
sensing, by one or more sensors, the sensed data - this limitation is directed to mere instructions to apply an exception, as the use of machinery in its ordinary capacity (such as a sensor for sensing data) amounts to invoking computers merely as a tool to perform an existing process (see MPEP 2106.05(f) (2));
processing, by the custom ANN architecture, the sensed data - this limitation is directed to mere instructions to apply an exception, as the use of a computer (such as an ANN running on a computer for processing data) amounts to invoking computers merely as a tool to perform an existing process (see MPEP 2106.05(f) (2));
controlling an application based at least on the processed sensed data- this limitation amounts to merely indicating a field of use or technological environment [see MPEP 2106.05(h)] and fails to integrate the judicial exception into a practical application.
Accordingly, these additional elements does not integrate the abstract idea into a practical application because it does not impose any meaningful limits on practicing the abstract idea. The claims are directed to an abstract idea.
Step 2B analysis:
The claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception. As discussed above with respect to integration of the abstract idea into a practical application, the additional elements recited at Claims 1 and 11 above amount to mere instructions to apply an exception per MPEP 2106.05(f) (2), to no more than necessary data gathering (insignificant extra solution activities per MPEP 2106.05 (g)(3)), and to generic computer components per MPEP 2106.05(b).
Moreover, re-evaluation of any additional elements or combination of elements that were considered to be insignificant extra-solution activity at Claims 1 and 11 are needed to determine if they are considered well-understood, routine and conventional limitations:
Independent Claim 1:
“obtaining performance scores of the existing ANN architectures on the existing datasets” -this limitation amounts to receiving data regarding the performance score, which amounts to receiving data over a network, further considered well-understood, routine and conventional under MPEP 2106.05(d) II (i).
Independent Claim 11:
“obtain performance scores of the existing ANN architectures on the existing datasets from the database” -this limitation amounts to retrieving data from the database, which amounts to retrieving information in memory, further considered well-understood, routine and conventional under MPEP 2106.05(d) II (iv).
The claims are not patent eligible.
Dependent claim(s) when analyzed as a whole are held to be patent ineligible under 35 U.S.C. 101 because the additional recited limitation(s) fail(s) to establish that the claim(s) is/are not directed to an abstract idea, as they recite further embellishment of the judicial exception, do not integrate the abstract idea into a practical application and are not sufficient to amount to significantly more than the judicial exception.
- Claim 2 (further embellishment about the use of cameras for sensing data for controlling an autonomous vehicle, therefore, it amounts to merely indicating a field of use or technological environment [see MPEP 2106.05(h)] and fails to integrate the judicial exception into a practical application).
- Claim 3 (further embellishment about the use of microphones for sensing audio data for converting audio to speech, therefore, it amounts to merely indicating a field of use or technological environment [see MPEP 2106.05(h)] and fails to integrate the judicial exception into a practical application).
- Claim 4 (further embellishment about the use of microphones for sensing audio data for converting speech to text, therefore, it amounts to merely indicating a field of use or technological environment [see MPEP 2106.05(h)] and fails to integrate the judicial exception into a practical application).
- Claim 5 (further mathematical calculations about the interpolation weights and centrality scores). Dependent Claim 12 is rejected on the same basis as dependent claim 5 since they are analogous claims.
- Claim 6 (further mathematical calculations about centrality scores). Dependent Claim 13 is rejected on the same basis as dependent claim 6 since they are analogous claims.
- Claim 7 (further mathematical calculations about target performance scores and interpolation). Dependent Claim 14 is rejected on the same basis as dependent claim 7 since they are analogous claims.
- Claim 8 (further mathematical calculations about dataset pairwise similarity and convolutions). Dependent Claim 15 is rejected on the same basis as dependent claim 8 since they are analogous claims.
- Claim 9 (further mathematical calculations about fixed-length real number vectors). Dependent Claim 16 is rejected on the same basis as dependent claim 9 since they are analogous claims.
- Claim 10 (further mathematical calculations about ANN architecture pairwise similarities and convolutions). Dependent Claim 17 is rejected on the same basis as dependent claim 8 since they are analogous claims.
- Claim 18 (further mathematical calculations about calculating a plurality of ANN architecture fingerprints).
- Claim 19 (recites observation and evaluation steps for determining and comparing architectures similarities in type, which corresponds to mental processes).
- Claim 20 (further mathematical relationships and values being obtained, which are interpreted as mere data gathering of the mathematical values, being an insignificant extra solution activity and well understood, routine and conventional).
Viewed as a whole, these additional claim element(s) do not provide meaningful limitation(s) to transform the abstract idea into a patent eligible application of the abstract idea such that the claim(s) amounts to significantly more than the abstract idea itself. Therefore, the claim(s) are rejected under 35 U.S.C. 101 as being directed to non-statutory subject matter.
Examiner’s comments
For claims 1-20, no art rejection is made for these claims, they are only rejected under Double Patenting and under 35 USC 101, as explained above in this office action. None of the references of record either alone or in combination fairly disclose or suggest the combination of limitations specified in independent claims 1 and 11. The closest prior art of record, Fang et al (“Reconfigurable Network for Efficient Inferencing in Autonomous Vehicles”) discloses a reconfigurable network for efficient inference dedicated to autonomous platforms equipped with multiple perception sensors. However, the examiner has found that the distinct feature of the applicant's claimed invention over the prior art is the explicit claiming of the aforementioned limitations as specified in independent claims 1 and 11 in combination with all the other limitations recited therein.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to LUIS A SITIRICHE whose telephone number is (571)270-1316. The examiner can normally be reached M-F 9am-6pm.
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/LUIS A SITIRICHE/ Primary Examiner, Art Unit 2126
