DETAILED ACTION
Claims 1 – 20, which are currently pending, are fully considered below.
Claims 1, 3, 8, 11 – 16, and 18 – 20 are currently amended.
No claims are added or canceled.
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 .
Response to Arguments
Applicant’s arguments with respect to the rejection of claim 1 – 20 under 35 USC 112 have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. However, applicant’s amendments necessitated a new ground of rejection is made in view of 35 USC 101.
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 the judicial exception of an abstract idea without significantly more.
Claims 1, 19, and 20 recite:
Receiving, at the node, an update to a local model from at least one other node in the distributed system, the local model comprising the local version of the machine learning model maintained by the node and the update comprising a dense array of one or more first parameter deltas, the one or more first parameter deltas being ordered in the dense array in an order determined by a reference model, the one or more first parameter deltas representing a difference between a parameter of the local model maintained by the node and a corresponding parameter of an updated version of the machine learning model that is maintained by the at least one other node, the distributed system comprising nodes maintaining local versions of the machine learning model initialized with identical parameter values;
Updating the local model based on the received update and the reference model to determine an updated local model;
Determining one or more second parameter deltas, the one or more second parameter deltas representing a difference between a parameter of the updated local model and a corresponding parameter of a previous version of the local model; and
Sending an update to the at least one other node in the distributed system, wherein the update comprises a dense array of the one or more second parameter deltas, the one or more second parameter deltas being ordered in the dense array in an order determined by the reference model.
Step 2A Prong One
Claim 1 limitations of “receiving, at the node, an update……” “updating the local model…” “determining one or more second parameter deltas…” and “sending an update…” recite abstract ideas as mathematical concepts or mental processes which may be done as a mental process, in the human mind.
MATHEMATICAL CONCEPTS
The mathematical concepts grouping is defined as mathematical relationships, mathematical formulas or equations, and mathematical calculations. MPEP 2106.04(a)(2)(I). The Supreme Court has identified a number of concepts falling within this grouping as abstract ideas including: a procedure for converting binary-coded decimal numerals into pure binary form, Gottschalk v. Benson, 409 U.S. 63, 65, 175 USPQ2d 673, 674 (1972); a mathematical formula for calculating an alarm limit, Parker v. Flook, 437 U.S. 584, 588-89, 198 USPQ2d 193, 195 (1978); the Arrhenius equation, Diamond v. Diehr, 450 U.S. 175, 191, 209 USPQ 1, 15 (1981); and a mathematical formula for hedging, Bilski v. Kappos, 561 U.S. 593, 611, 95 USPQ 2d 1001, 1004 (2010).
The Court’s rationale for identifying these "mathematical concepts" as judicial exceptions is that a ‘‘mathematical formula as such is not accorded the protection of our patent laws,’’ Diehr, 450 U.S. at 191, 209 USPQ at 15 (citing Benson, 409 U.S. 63, 175 USPQ 673), and thus ‘‘the discovery of [a mathematical formula] cannot support a patent unless there is some other inventive concept in its application.’’ Flook, 437 U.S. at 594, 198 USPQ at 199. In the past, the Supreme Court sometimes described mathematical concepts as laws of nature, and at other times described these concepts as judicial exceptions without specifying a particular type of exception. See, e.g., Benson, 409 U.S. at 65, 175 USPQ2d at 674; Flook, 437 U.S. at 589, 198 USPQ2d at 197; Mackay Radio & Telegraph Co. v. Radio Corp. of Am., 306 U.S. 86, 94, 40 USPQ 199, 202 (1939) (‘‘[A] scientific truth, or the mathematical expression of it, is not patentable invention[.]’’). More recent opinions of the Supreme Court, however, have affirmatively characterized mathematical relationships and formulas as abstract ideas. See, e.g., Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 573 U.S. 208, 218, 110 USPQ2d 1976, 1981 (2014) (describing Flook as holding "that a mathematical formula for computing ‘alarm limits’ in a catalytic conversion process was also a patent-ineligible abstract idea."); Bilski v. Kappos, 561 U.S. 593, 611-12, 95 USPQ2d 1001, 1010 (2010) (noting that the claimed "concept of hedging, described in claim 1 and reduced to a mathematical formula in claim 4, is an unpatentable abstract idea,").
It is important to note that a mathematical concept need not be expressed in mathematical symbols, because "[w]ords used in a claim operating on data to solve a problem can serve the same purpose as a formula." In re Grams, 888 F.2d 835, 837 and n.1, 12 USPQ2d 1824, 1826 and n.1 (Fed. Cir. 1989). See, e.g., SAP America, Inc. v. InvestPic, LLC, 898 F.3d 1161, 1163, 127 USPQ2d 1597, 1599 (Fed. Cir. 2018) (holding that claims to a ‘‘series of mathematical calculations based on selected information’’ are directed to abstract ideas); Digitech Image Techs., LLC v. Elecs. for Imaging, Inc., 758 F.3d 1344, 1350, 111 USPQ2d 1717, 1721 (Fed. Cir. 2014) (holding that claims to a ‘‘process of organizing information through mathematical correlations’’ are directed to an abstract idea); and Bancorp Servs., LLC v. Sun Life Assurance Co. of Can. (U.S.), 687 F.3d 1266, 1280, 103 USPQ2d 1425, 1434 (Fed. Cir. 2012) (identifying the concept of ‘‘managing a stable value protected life insurance policy by performing calculations and manipulating the results’’ as an abstract idea).
MENTAL PROCESSES MPEP 2106.04(a)(2)(III).
The courts consider a mental process (thinking) that "can be performed in the human mind, or by a human using a pen and paper" to be an abstract idea. CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1372, 99 USPQ2d 1690, 1695 (Fed. Cir. 2011). As the Federal Circuit explained, "methods which can be performed mentally, or which are the equivalent of human mental work, are unpatentable abstract ideas the ‘basic tools of scientific and technological work’ that are open to all.’" 654 F.3d at 1371, 99 USPQ2d at 1694 (citing Gottschalk v. Benson, 409 U.S. 63, 175 USPQ 673 (1972)). See also Mayo Collaborative Servs. v. Prometheus Labs. Inc., 566 U.S. 66, 71, 101 USPQ2d 1961, 1965 (2012) ("‘[M]ental processes[] and abstract intellectual concepts are not patentable, as they are the basic tools of scientific and technological work’" (quoting Benson, 409 U.S. at 67, 175 USPQ at 675)); Parker v. Flook, 437 U.S. 584, 589, 198 USPQ 193, 197 (1978) (same).
Accordingly, the "mental processes" abstract idea grouping is defined as concepts performed in the human mind, and examples of mental processes include observations, evaluations, judgments, and opinions.
The courts do not distinguish between mental processes that are performed entirely in the human mind and mental processes that require a human to use a physical aid (e.g., pen and paper or a slide rule) to perform the claim limitation. See, e.g., Benson, 409 U.S. at 67, 65, 175 USPQ at 674-75, 674 (noting that the claimed "conversion of [binary-coded decimal] numerals to pure binary numerals can be done mentally," i.e., "as a person would do it by head and hand."); Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d 1138, 1139, 120 USPQ2d 1473, 1474 (Fed. Cir. 2016) (holding that claims to a mental process of "translating a functional description of a logic circuit into a hardware component description of the logic circuit" are directed to an abstract idea, because the claims "read on an individual performing the claimed steps mentally or with pencil and paper").
Nor do the courts distinguish between claims that recite mental processes performed by humans and claims that recite mental processes performed on a computer. As the Federal Circuit has explained, "[c]ourts have examined claims that required the use of a computer and still found that the underlying, patent-ineligible invention could be performed via pen and paper or in a person’s mind." Versata Dev. Group v. SAP Am., Inc., 793 F.3d 1306, 1335, 115 USPQ2d 1681, 1702 (Fed. Cir. 2015). See also Intellectual Ventures I LLC v. Symantec Corp., 838 F.3d 1307, 1318, 120 USPQ2d 1353, 1360 (Fed. Cir. 2016) (‘‘[W]ith the exception of generic computer-implemented steps, there is nothing in the claims themselves that foreclose them from being performed by a human, mentally or with pen and paper.’’); Mortgage Grader, Inc. v. First Choice Loan Servs. Inc., 811 F.3d 1314, 1324, 117 USPQ2d 1693, 1699 (Fed. Cir. 2016) (holding that computer-implemented method for "anonymous loan shopping" was an abstract idea because it could be "performed by humans without a computer").
Because both product and process claims may recite a "mental process", the phrase "mental processes" should be understood as referring to the type of abstract idea, and not to the statutory category of the claim. The courts have identified numerous product claims as reciting mental process-type abstract ideas, for instance the product claims to computer systems and computer-readable media in Versata Dev. Group. v. SAP Am., Inc., 793 F.3d 1306, 115 USPQ2d 1681 (Fed. Cir. 2015).
Step 2A Prong 2
Claims 1, 19, and 20, as a whole, fail to integrate the recited judicial exception into a practical application of the exception.
The limitations of “receiving, at the node, an update……” “updating the local model…” and “sending an update…” appear to be mere data gathering and “determining one or more second parameter deltas…” appears to be mere instructions to apply this on a computer as a generic CNN.
Integration of a Judicial Exception Into A Practical Application 2106.04(d)
The Supreme Court has long distinguished between principles themselves (which are not patent eligible) and the integration of those principles into practical applications (which are patent eligible). See, e.g., Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 80, 84, 101 USPQ2d 1961, 1968-69, 1970 (2012) (noting that the Court in Diamond v. Diehr found ‘‘the overall process patent eligible because of the way the additional steps of the process integrated the equation into the process as a whole,’’ but the Court in Gottschalk v. Benson ‘‘held that simply implementing a mathematical principle on a physical machine, namely a computer, was not a patentable application of that principle’’). Similarly, in a growing body of decisions, the Federal Circuit has distinguished between claims that are ‘‘directed to’’ a judicial exception (which require further analysis to determine their eligibility) and those that are not (which are therefore patent eligible), e.g., claims that improve the functioning of a computer or other technology or technological field. See Diamond v. Diehr, 450 U.S. 175, 209 USPQ 1 (1981); Gottschalk v. Benson, 409 U.S. 63, 175 USPQ 673 (1972). See, e.g., MPEP § 2106.06(b) (summarizing Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 118 USPQ2d 1684 (Fed. Cir. 2016), McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299, 120 USPQ2d 1091 (Fed. Cir. 2016), and other cases that were eligible as improvements to technology or computer functionality instead of being directed to abstract ideas).
The Supreme Court and Federal Circuit have identified a number of considerations as relevant to the evaluation of whether the claimed additional elements demonstrate that a claim is directed to patent-eligible subject matter. The list of considerations here is not intended to be exclusive or limiting. Additional elements can often be analyzed based on more than one type of consideration and the type of consideration is of no import to the eligibility analysis. Additional discussion of these considerations, and how they were applied in particular judicial decisions, is provided in MPEP § 2106.05(a) through (c) and MPEP § 2106.05(e) through (h).
Limitations the courts have found indicative that an additional element (or combination of elements) may have integrated the exception into a practical application include:
An improvement in the functioning of a computer, or an improvement to other technology or technical field, as discussed in MPEP §§ 2106.04(d)(1) and 2106.05(a);
Applying or using a judicial exception to effect a particular treatment or prophylaxis for a disease or medical condition, as discussed in MPEP § 2106.04(d)(2); [AltContent: rect]
Implementing a judicial exception with, or using a judicial exception in conjunction with, a particular machine or manufacture that is integral to the claim, as discussed in MPEP § 2106.05(b);
Effecting a transformation or reduction of a particular article to a different state or thing, as discussed in MPEP § 2106.05(c); and
Applying or using the judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment, such that the claim as a whole is more than a drafting effort designed to monopolize the exception, as discussed in MPEP § 2106.05(e).
The courts have also identified limitations that did not integrate a judicial exception into a practical application:
Merely reciting the words "apply it" (or an equivalent) with the judicial exception, or merely including instructions to implement an abstract idea on a computer, or merely using a computer as a tool to perform an abstract idea, as discussed in MPEP § 2106.05(f);
Adding insignificant extra-solution activity to the judicial exception, as discussed in MPEP § 2106.05(g); and
Generally linking the use of a judicial exception to a particular technological environment or field of use, as discussed in MPEP § 2106.05(h).
Step 2B
The claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception.
THE SEARCH FOR AN INVENTIVE CONCEPT MPEP 2106.05(I)
The second part of the Alice/Mayo test is often referred to as a search for an inventive concept. Alice Corp. Pty. Ltd. v. CLS Bank Int'l, 573 U.S. 208, 217, 110 USPQ2d 1976, 1981 (2014) (citing Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 71-72, 101 USPQ2d 1961, 1966 (2012)).
An inventive concept "cannot be furnished by the unpatentable law of nature (or natural phenomenon or abstract idea) itself." Genetic Techs. Ltd. v. Merial LLC, 818 F.3d 1369, 1376, 118 USPQ2d 1541, 1546 (Fed. Cir. 2016). See also Alice Corp., 573 U.S. at 21-18, 110 USPQ2d at 1981 (citing Mayo, 566 U.S. at 78, 101 USPQ2d at 1968 (after determining that a claim is directed to a judicial exception, "we then ask, ‘[w]hat else is there in the claims before us?") (emphasis added)); RecogniCorp, LLC v. Nintendo Co., 855 F.3d 1322, 1327, 122 USPQ2d 1377 (Fed. Cir. 2017) ("Adding one abstract idea (math) to another abstract idea (encoding and decoding) does not render the claim non-abstract"). Instead, an "inventive concept" is furnished by an element or combination of elements that is recited in the claim in addition to (beyond) the judicial exception, and is sufficient to ensure that the claim as a whole amounts to significantly more than the judicial exception itself. Alice Corp., 573 U.S. at 27-18, 110 USPQ2d at 1981 (citing Mayo, 566 U.S. at 72-73, 101 USPQ2d at 1966).
Claim 2 recites:
the one or more first parameter deltas are ordered in the dense array according to a magnitude of one or more corresponding parameters of the reference model; and
the one or more second parameter deltas are ordered in the dense array according to a magnitude of one or more corresponding parameters of the reference model.
Step 2A Prong One
Claim 2’s limitations may be an observation as a mental process, in the human mind.
Step 2A Prong 2
Claim 2, as a whole, fails to integrate the recited judicial exception into a practical application of the exception. The claim does not include additional elements that are sufficient to amount to significantly more than the judicial exception.
Step 2B
Claim 2 does not include additional elements that are sufficient to amount to significantly more than the judicial exception.
Claim 3 recites:
the plurality of workers are configured to train respective local models and report updates to the local models back to the server; and the server is configured to aggregate updates from the workers to update a global model and report updates to the global model back to the workers, the server being configured to aggregate the updates from the workers based on the reference model.
Step 2A Prong One
Claim 3’s limitations recite mental processes, in the human mind.
Step 2A Prong 2
Claim 3, as a whole, fails to integrate the recited judicial exception into a practical application of the exception. The claim does not include additional elements that are sufficient to amount to significantly more than the judicial exception.
Step 2B
Claim 3 does not include additional elements that are sufficient to amount to significantly more than the judicial exception.
Claim 4 recites:
wherein the reference model comprises a copy of a version of the global model that precedes the updated version of the global model.
Step 2A Prong One
Claim 4’s limitation may be an observation as a mental process, in the human mind.
Step 2A Prong 2
Claim 4, as a whole, fails to integrate the recited judicial exception into a practical application of the exception. The claim does not include additional elements that are sufficient to amount to significantly more than the judicial exception.
Step 2B
Claim 4 does not include additional elements that are sufficient to amount to significantly more than the judicial exception.
Claim 5 recites:
receiving the update to the local model from the server, the one or more first parameter deltas being indicative of a current state of every updated parameter of the global model; and wherein updating the local model comprises applying the update to the local model to bring the local model into compliance with the global model.
Therefore, the claim does not recite limitations which amount to significantly more than the abstract idea.
Claim 6 recites:
determining a level of reduction of a number of parameters of the local model; applying the determined level of reduction of the number of parameters to the local model to produce a reduced local model; applying the determined level of reduction of the number of parameters of the local model to the reference model; training the reduced local model based on training data to obtain the updated local model; and sending the update to the server for use in updating the global model.
Step 2A Prong One
Claim 6’s limitation may be an observation as a mental process, in the human mind.
Step 2A Prong 2
Claim 6, as a whole, fails to integrate the recited judicial exception into a practical application of the exception. The claim does not include additional elements that are sufficient to amount to significantly more than the judicial exception.
Step 2B
Claim 6 does not include additional elements that are sufficient to amount to significantly more than the judicial exception.
Claim 7 recites:
determining a quality of service of a communication link between the worker and the server; and
determining the level of reduction of the number of parameters of the local model based on the quality of service.
Step 2A Prong One
Claim 7 limitations may be done as a mental process, in the human mind.
Step 2A Prong 2
Claim 7, as a whole, fails to integrate the recited judicial exception into a practical application of the exception.
Step 2B
The claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception.
Claim 8 recites:
Adjusting the level of reduction of the number of parameters of the local model based on the quality of service.
Step 2A Prong One
Claim 8 limitation may be done as a mental process, in the human mind.
Step 2A Prong 2
Claim 8, as a whole, fails to integrate the recited judicial exception into a practical application of the exception. The claim does not include additional elements that are sufficient to amount to significantly more than the judicial exception.
Step 2B
Claim 8 does not include additional elements that are sufficient to amount to significantly more than the judicial exception.
Claim 9 recites:
decreasing the level of reduction of the number of parameters of the local model in response to an increase of the quality of service; and increasing the level of reduction of the number of parameters of the local model in response to a decrease of the quality of service.
Step 2A Prong One
Claim 9’s limitations may be an observation as a mental process, in the human mind.
Step 2A Prong 2
Claim 9, as a whole, fails to integrate the recited judicial exception into a practical application of the exception. The claim does not include additional elements that are sufficient to amount to significantly more than the judicial exception.
Step 2B
Claim 9 does not include additional elements that are sufficient to amount to significantly more than the judicial exception.
Claim 10 recites:
Including one or more additional parameters in the local model, the one or more additional parameters to be included in the local model being determined based on the reference model.
Therefore, the claim does not recite limitations which amount to significantly more than the abstract idea.
Claim 11 recites:
Distributing the reduced number of parameters across the plurality of layers of the local model such that the plurality of layers of the local model comprise a same number of parameters.
Step 2A Prong One
Claim 11’s limitation “may be an observation as a mental process, in the human mind.
Step 2A Prong 2
Claim 11, as a whole, fails to integrate the recited judicial exception into a practical application of the exception. The claim does not include additional elements that are sufficient to amount to significantly more than the judicial exception.
Step 2B
Claim 11 does not include additional elements that are sufficient to amount to significantly more than the judicial exception.
Claim 12 recites:
excluding the at least one layer from a further distribution of the reduced number of parameters; and distributing the reduced number of parameters across one or more remaining layers of the plurality of layers of the local model such that each of the one or more remaining layers of the plurality of layers of the local model comprises comprise a same number of parameters.
Therefore, the claim does not recite limitations which amount to significantly more than the abstract idea.
Claim 13 recites:
distributing the reduced number of parameters across the plurality of layers of the reference model such that the plurality of layers of the reference model comprise a same number of parameters, parameters of the plurality of layers of the reference model corresponding to parameters of the plurality of layers of the local model.
Step 2A Prong One
Claim 13’s limitation may be an observation as a mental process, in the human mind.
Step 2A Prong 2
Claim 13, as a whole, fails to integrate the recited judicial exception into a practical application of the exception. The claim does not include additional elements that are sufficient to amount to significantly more than the judicial exception.
Step 2B
Claim 13 does not include additional elements that are sufficient to amount to significantly more than the judicial exception.
Claim 14 recites:
excluding the at least one layer from a further distribution of the reduced number of parameters; and
distributing the reduced number of parameters across one or more remaining layers of the plurality of layers of the reference model such that each of the one or more remaining layers of the plurality of layers of the reference model comprises comprise a same number of parameters.
Step 2A Prong One
Claim 14’s limitation may be an observation as a mental process, in the human mind.
Step 2A Prong 2
Claim 14, as a whole, fails to integrate the recited judicial exception into a practical application of the exception. The claim does not include additional elements that are sufficient to amount to significantly more than the judicial exception.
Step 2B
Claim 14 does not include additional elements that are sufficient to amount to significantly more than the judicial exception.
Claim 15 recites:
sending by the worker a full update of the local model representing the current state of every parameter of the local model, when the quality of service exceeds an upper threshold;
or omitting sending of the update by worker, when the quality of service is below a lower threshold.
Step 2A Prong One
Claim 15 limitations may be done as a mental process, in the human mind.
Step 2A Prong 2
Claim 15, as a whole, fails to integrate the recited judicial exception into a practical application of the exception.
Step 2B
The claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception.
Claim 16 recites:
receiving an update to a local model comprises receiving a plurality of updates from the plurality of workers, the updates comprising dense arrays, the dense arrays including a dense array of one or more second parameter deltas; updating the local model comprises aggregating the updates from the plurality of workers to update the global model based on the reference model; and
the update is sent by the server to each of the workers for use in updating their respective local models.
Step 2A Prong One
Claim 16’s limitations may be an observation as a mental process, in the human mind.
Step 2A Prong 2
Claim 16, as a whole, fails to integrate the recited judicial exception into a practical application of the exception. The claim does not include additional elements that are sufficient to amount to significantly more than the judicial exception.
Step 2B
Claim 16 does not include additional elements that are sufficient to amount to significantly more than the judicial exception.
Claim 17 recites:
Wherein the one or more second parameter deltas are indicative of the current state of every updated parameter of the global model.
Step 2A Prong One
Claim 17’s limitation may be an observation as a mental process, in the human mind.
Step 2A Prong 2
Claim 17, as a whole, fails to integrate the recited judicial exception into a practical application of the exception. The claim does not include additional elements that are sufficient to amount to significantly more than the judicial exception.
Step 2B
Claim 17 does not include additional elements that are sufficient to amount to significantly more than the judicial exception.
Claim 18 recites:
wherein the local versions of the machine learning model of the plurality of nodes are randomly initialized with the same one or more respective parameter values..
Step 2A Prong One
Claim 18’s limitation “may be an observation as a mental process, in the human mind.
Step 2A Prong 2
Claim 18, as a whole, fails to integrate the recited judicial exception into a practical application of the exception. The claim does not include additional elements that are sufficient to amount to significantly more than the judicial exception.
Step 2B
Claim 18 does not include additional elements that are sufficient to amount to significantly more than the judicial exception.
Conclusion/Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ALEXANDRIA Y BROMELL whose telephone number is (571)270-3034. The examiner can normally be reached M-F 8-4.
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/ALEXANDRIA Y BROMELL/ Primary Examiner, Art Unit 2156 September 18, 2026
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