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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 3/12/2026 has been entered.
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 a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more.
Claim 1 is directed towards a method, thus meeting the Step 1 eligibility criterion. Claim 1 does recite the abstract concept of a commercial interaction/fundamental economic practice, which has been identified as an abstract idea by the MPEP. The relevant claimed limitations include: identifying information related to an electronic data structure, the information comprising parameters and digital content/determining a set of previous data structures based on the information related to the data structure / determining based on the AI analysis and comparison, a predicted performance of the data structure over a network, the predicted performance of the data structure comprising protocols indicating a network connectivity type of a local area network or cellular network for dissemination of the digital content / modifying based on the predicted performance, the data structure / implementing the modified data structure in accordance with the predicted performance, the implementation causing communication of the digital content over the local area of cellular network according to the protocols defined by the predicted performance, the implementation comprising disseminating the digital content based on determination of whether the client device is connected to the local area network or cellular network. Applicant’s Spec. further describes the context of the claimed invention as pertaining to the commercial interaction realm, and describes the claimed invention as seeking to, when implemented, at best optimize a business practice/goal: “effectively plan, launch , optimize and monitor the performance of content campaigns”, “understanding a campaign’s availability, reach and predicted performance given a targeted audience” , “optimize visibility while increasing user experience, which can benefit both the campaign provider as well as the targeted audience”, “improving the impression opportunities of reaching the desired audience at the right cost”, “optimize, in a dynamic manner, how content campaigns can be implemented, thereby increasing their accuracy”. Claim 1 also recites the abstract concept of a mental concept – i.e. mental process that can be performed in the human mind or using pen/paper, including an observation/evaluation/judgment , which has been identified as an abstract idea by the MPEP: identifying information related to an electronic data structure, the information comprising parameters and digital content/determining a set of previous data structures based on the information related to the data structure. These claimed limitations, under their broadest reasonable interpretation, cover performance in the human mind but for the recitation of generic computing elements, thus still being in the mental process category.
This judicial exception is not integrated into a practical application. Claim 1 includes the additional elements of a device/a network, and using AI comprising a neural network to analyze/determine data and incrementally training the AI model and using activation functions (“analyzing, by an artificial intelligence (AI) model …the information related to the data structure based on information related to the set of previous data structures, the AI model being a neural network comprising a configuration of nodes within a topology, each node corresponding to an activation function of the neural network that operates based on a connection to another mode within the topology, the AI model being trained incrementally based on input data that is analyzed to determine an accuracy for a number of timesteps, whereby such training occurs in parallel within a predetermined periodicity with the analysis of the information” , “comparing, via the AI model, at least a portion of information related to the data structure and at least a portion of the information related to the set of previous data structures per node via a series of activation functions”). The device/network represent generic computing elements. Using AI/neural network to analyze/determine data , training the AI model incrementally and using activation functions do no more than apply or link the use of the recited judicial exception to a particular technological environment/field of use. The additional elements do not , alone or in combination, improve the functioning of the computing device or another technology/technical field, nor do they apply or use the judicial exception in some other meaningful way beyond generally linking its use to a particular technological environment. The claim is directed to an abstract idea.
Claim 1 does not include additional elements that are sufficient to amount to significantly more than the judicial exception, because as noted above, the claimed computing elements represent generic computing elements; they are recited at a high level of generality. Using AI to analyze/determine data , training the AI model incrementally, and using activation functions do no more than apply or link the use of the recited judicial exception to a particular technological environment/field of use. The additional elements do not, alone or in combination, improve the functioning of the computing device or another technology/technical field, nor do they apply or use the judicial exception in some other meaningful way beyond generally linking its use to a particular technological environment. Therefore, Claim 1 does not amount to significantly more than the abstract idea itself. The claim is not patent eligible.
Independent claims 11, 16 are directed to a device and computer-readable storage medium for performing similar claimed limitations to those of claim 1, thus meeting the Step 1 eligibility criterion. The claims recite the same abstract idea as Claim 1. Claims 11, 16 perform the claimed limitations using only generic components of a networked computer system. Therefore, claims 11, 16 are directed to an abstract idea without significantly more for the reasons given in the discussion of claim 1.
Remaining dependent claims 2-10, 12-15, 17-20 further recite and narrow the abstract ideas of the independent claims themselves. The claims further include the additional element of using AI to analyze/determine data (claims 2/12/17), using a large language model to analyze/determine data (claim 8). Using AI/using a large language model to analyze and determine data does no more than apply or link the use of the recited judicial exception to a particular technological environment/field of use. The additional elements do not, alone or in combination with the other additional elements, improve the functioning of the computing device or another technology/technical field, nor do they apply or use the judicial exception in some other meaningful way beyond generally linking its use to a particular technological environment. Therefore, the claims do not amount to significantly more than the abstract idea itself. The claims are not patent eligible.
The prior art of record does not teach neither singly nor in combination the limitations of claims 1-20.
Swaminathan (10887640) teaches identifying data related to an electronic data structure, comprising parameters and digital content; determining a set of previous data structures based on the data related to the data structure; analyzing, by an AI model , the data related to the data structure based on data related to the set of previous data structures; determining , based on the AI analysis and comparison, a predicted performance of the data structure over a network; implementing the data structure over the network in accordance with the predicted performance, causing communication of the digital content over the network and delivery to network locations according to protocols defined by the predicted performance. However, it lacks the combination of claimed elements of the pending independent claims. When taken as a whole, the claims are not rendered obvious as the available prior art does not suggest or otherwise render obvious the noted features nor does the available prior art suggest or otherwise render obvious further modification of the evidence at hand. Such modifications would require substantial reconstruction relying solely on improper hindsight bias, and thus would not be obvious.
Response to Arguments
Applicant’s arguments have been fully considered; Applicant argues with substance:
Applicant respectfully submits that the amended claims are directed to patent-eligible subject matter and satisfy both steps of the Alice/Mayo framework established by the Supreme Court in Alice Corp. v. CLS Bank International, 573 U.S. 208 (2014) and Mayo Collaborative Services v. Prometheus Laboratories, Inc., 566 U.S. 66 (2012), as discussed below. II. Step One Analysis: The Claims Are Not Directed to an Abstract Idea Under Step One of the Alice/Mayo framework (or Step 2A Prongs One and Two under MPEP §2106.04), the claimed subject matter must be analyzed to determine whether it is directed to an abstract idea, law of nature, or natural phenomenon. The Federal Circuit has emphasized that "[t]his 'directed to' inquiry does more than 'simply ask whether the claims involve a patent- ineligible concept.' Instead, we must look to the character of the claims as a whole to determine whether they are 'directed to' patent ineligible subject matter." AI Visualize, Inc. v. Nuance Commc'ns, Inc., 97 F.4th 1371, 1378 (Fed. Cir. 2024) (quoting Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335 (Fed. Cir. 2016)) (emphasis in original). Applicant submits that the remarks responsive to the claims not reciting an abstract idea from the previously submitted responses are still applicable, and rather than reiterate them, they are incorporated herein. Even assuming arguendo that the claims could be characterized as reciting an abstract idea, a point not conceded, the claims integrate any such idea into a practical application by reciting a concrete network-delivery control that changes how digital content is disseminated within the networked system, satisfying Step One of Alice/Mayo (or Step 2A Prong Two under MPEP §2106.04). Specifically, amended Claim 1 recites that the Al analysis and comparison are used to determine a predicted performance of the data structure over a network, where the predicted performance itself comprises protocols indicating a network connectivity type of a local area network or cellular network for dissemination of the digital content. Amended Claim 1 further recites modifying the data structure based on the predicted performance and then implementing the modified data structure in accordance with the predicted performance, including disseminating the digital content to a client device based on a determination of whether the client device is connected to the local area network or cellular network. This is not merely using Al as a tool to produce information; it is using the output of the Al processing to control how digital content is delivered within a networked environment. Moreover, amended Claim 1 does not merely invoke a generic network as a field of use. Instead, the claim specifies how the predicted performance is operationalized in the networked system: the predicted performance comprises protocols indicating a particular network connectivity type for dissemination; the data structure is modified based on that predicted performance; and the modified data structure is then implemented such that communication of the digital content occurs over the local area network or cellular network according to the protocols defined by the predicted performance, with dissemination to the client device occurring based on an actual determination of whether the client device is connected to the local area network or cellular network. This imposes a meaningful technological constraint on implementation and materially limits the claim beyond any alleged abstract idea itself. The amendment also places Claim 1 in the same eligibility posture as the USPTO's 2024 Al guidance examples where Al output is used to perform a concrete technical operation. In Example 47, the USPTO treated claim 2 as ineligible when the artificial neural network (ANN) merely detected and analyzed anomalies and output anomaly data, but treated a more specific claim (claim 3) as eligible when the ANN output was used to detect a source address, automatically drop malicious packets, and block future traffic. Likewise, in Example 48, the USPTO distinguished between a broader claim (claim 1) that merely calculated embedding vectors and a more specific claim (claim 2) that used the processed output to synthesize speech waveforms and generate a modified signal. Here, amended Claim 1 follows the same eligible pattern. The claim does not stop at Al analysis and predicted performance; rather, it recites using that output to define connectivity- specific dissemination protocols, modify the data structure accordingly, and control a concrete network dissemination action based on the detected connectivity state of the client device. Accordingly, when considered as a whole and without oversimplification, the amended claims are not directed merely to an abstract idea. At a minimum, even under the Office's view that some limitations may recite an abstract idea, the amended claims integrate any such alleged exception into a practical application. Thus, Applicant respectfully requests withdrawal of the rejections under 35 U.S.C. § 101. III. Step Two Analysis: The Claims Recite Significantly More Than Any Abstract Idea Even if the Examiner were to find that the claims are directed to an abstract idea (which Applicant respectfully disputes and strongly disagrees with any such assertion), the amended claims clearly satisfy Step Two of Alice/Mayo (or Step 2B under MPEP §2106.05) by reciting elements that constitute significantly more than any abstract idea. The Supreme Court and Federal Circuit have made clear that, under Step Two, the question is whether the additional elements considered individually and as an ordered combination-are well-understood, routine, and conventional in the field. See Berkheimer v. HP Inc., 881 F.3d 1360, 1368 (Fed. Cir. 2018); MPEP § 2106.05(d). In addition, "[t]he inventive concept inquiry requires more than recognizing that each claim element, by itself, was known in the art.... [A]n inventive concept can be found in the non-conventional and non-generic arrangement of known, conventional pieces." BASCOM Global Internet v. AT&T Mobility LLC, 827 F.3d 1341, 1350 (Fed. Cir. 2016). The amended claims recite a specific combination of AI-based analysis and comparison, predicted network performance, predicted-performance-defined dissemination protocols indicating a network connectivity type of a local area network or cellular network, modification of the data structure based on the predicted performance, and actual implementation of the modified data structure including dissemination to a client device based on whether the client device is connected to the local area network or cellular network. This ordered combination is more than generic data gathering and generic Al usage; it imposes a concrete technological constraint on network implementation and therefore amounts to significantly more than any alleged abstract idea itself. For at least the foregoing reasons, the amended claims recite patent-eligible subject matter under 35 U.S.C. § 101. The claims integrate any alleged abstract idea into a practical application; alternatively, the claims recite significantly more than any abstract concept. Accordingly, Applicant respectfully requests withdrawal of the rejections under 35 U.S.C. § 101 of independent claims 1, 11, and 16 and their respective dependent claims.
As noted above, the pending claims do recite an abstract idea, and the additional elements do not, alone or in combination, integrate the recited abstract idea into a practical application, nor do they represent significantly more than the abstract idea itself. The pending claimed invention and USPTO Example 47, Claim 3, have different fact patterns and claim sets, and thus the two are not analogous. Furthermore, in Example 47, Claim 3, it was deemed that the additional elements, in combination, integrate the recited abstract idea into a practical application – i.e.the claim improves the functioning of a computer or technical field, namely the technical field of network intrusion detection. Contrary to Example 47, Claim 3, the pending instant claims do not include any additional elements that, alone or in combination, integrate the recited abstract idea into a practical application; the pending instant claims do not improve the functioning of a computer or technical field, and the pending instant claims do not improve the technical field of network intrusion detection. The pending instant claims describe a neural network that comprises nodes and that is being trained iteratively, as well as using activation functions, wherein the neural network/AI model is used to analyze/determine data; the pending instant claims do not describe a novel machine learning architecture, or improved training methods. The pending claimed invention and USPTO Example 48, Claim 2, have different fact patterns and claim sets, and thus the two are not analogous. Furthermore, in Example 48, Claim 2, it was deemed that the claim provides a technical improvement – ie. an improvement over existing speech separation methods. Contrary to Example 48, Claim 2, the pending instant claims , when implemented, do not improve the functioning of the computing device itself or other technology/technical field; the pending instant claims do not provide an improvement existing speech separation methods. Applicant’s Spec. further describes the context of the claimed invention as pertaining to the commercial interaction realm, and describes the claimed invention as seeking to, when implemented, at best optimize a business practice/goal: “effectively plan, launch , optimize and monitor the performance of content campaigns”, “understanding a campaign’s availability, reach and predicted performance given a targeted audience” , “optimize visibility while increasing user experience, which can benefit both the campaign provider as well as the targeted audience”, “improving the impression opportunities of reaching the desired audience at the right cost”, “optimize, in a dynamic manner, how content campaigns can be implemented, thereby increasing their accuracy”. See Office Action above for the detailed, reasoned 35 USC 101 analysis.
Regarding the rejection of Claim 1 under 35 U.S.C. § 103, Applicant respectfully disagrees. Notwithstanding, without acquiescing and solely in an effort to expedite prosecution, Claim 1 has been amended to recite, inter alia, "the implementation comprising disseminating the digital content to a client device based on a determination of whether the client device is connected to the local area network or cellular network." Without conceding that Swaminathan (or any other reference of record) teaches or suggests any other claim element, Applicant respectfully submits that Swaminathan fails to teach or suggest at least the foregoing recitations of amended Claim 1. Nowhere does Swaminathan disclose determining whether a client device is currently connected to a local area network or to a cellular network, much less disseminating digital content based on that determination as recited in amended Claim 1. The discussion of "distribution channels" in Swaminathan fails to provide any teaching for what is claimed. Indeed, Swaminathan clarifies that "a distribution channel can include one or more websites (e.g., online impression opportunities on a website), email, messaging (e.g., instant messaging or SMS), in-application notifications (e.g., banner within a mobile application), or social networks." See Swaminathan at col. 7, lines 39-44. Thus, Swaminathan's "distribution channels" are communication platforms or modes and cannot reasonably be read as corresponding to a determination of whether a client device is currently connected to a local area network or to a cellular network as recited in amended Claim 1. Accordingly, Swaminathan fails to teach or suggest the claimed subject matter. Saidi and Banerjee were not cited for this purpose and are similarly deficient. Thus, because Swaminathan, Saidi, and Banerjee do not teach or suggest the above elements, it is respectfully submitted that Claim 1 is patentable over Swaminathan, Saidi, and Banerjee, and Applicant respectfully requests that the Examiner withdraw the rejections. Nor could Swaminathan, Saidi, and Banerjee, alone or in combination with any reference of record, render Claim 1 obvious, as no such combination would yield all of the elements in the presently recited claims. Therefore, Applicant respectfully requests withdrawal of these rejections. For at least the foregoing reasons, Claim 1 and the claims that depend from Claim 1 are believed to be in condition for allowance. In addition, for at least the same reasons stated above with respect to Claim 1, independent Claims 11 and 16 are also believed to be in condition for allowance, and accordingly, the claims that depend from Claims 11 and 16 are also believed to be in condition for allowance. Claim 8 was rejected under 35 U.S.C. §103 as being unpatentable over Swaminathan, Saidi, Banerjee, and Oppenheimer. It is respectfully submitted that the features described above with respect to Claim 1 are applicable to this claim as well, and Oppenheimer does not remedy these deficiencies. Therefore, Applicant submits that the four-reference combination based on Swaminathan, Saidi, Banerjee, and Oppenheimer would not yield all of the elements in the presently cited claims, and therefore the combination cannot form the basis of a proper obviousness rejection.
Examiner agrees. The prior art of record does not teach neither singly nor in combination the limitations of claims 1-20. Swaminathan (10887640) teaches identifying data related to an electronic data structure, comprising parameters and digital content; determining a set of previous data structures based on the data related to the data structure; analyzing, by an AI model , the data related to the data structure based on data related to the set of previous data structures; determining , based on the AI analysis and comparison, a predicted performance of the data structure over a network; implementing the data structure over the network in accordance with the predicted performance, causing communication of the digital content over the network and delivery to network locations according to protocols defined by the predicted performance. However, it lacks the combination of claimed elements of the pending independent claims. When taken as a whole, the claims are not rendered obvious as the available prior art does not suggest or otherwise render obvious the noted features nor does the available prior art suggest or otherwise render obvious further modification of the evidence at hand. Such modifications would require substantial reconstruction relying solely on improper hindsight bias, and thus would not be obvious.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Alexandru Cirnu whose telephone number is (571) 272-7775. The examiner can normally be reached on 8:00 AM - 5:00 PM. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Ilana Spar can be reached on (571) 270-7537. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Alexandru Cirnu/
Primary Patent Examiner, Art Unit 3622
4/6/2026