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 .
DETAILED ACTION
Status of the Application
This action is in response to the Amendment filed on 7/7/2026, and is a Final Office Action. Claims 1-3, 5-20 are pending in the application.
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 1-3, 5-20 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 2-3, 5-10, 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.
Relevant prior art
The prior art of record does not teach neither singly nor in combination the limitations of claims 1-3, 5-20. 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:
B. Step 2A, Prong One - The Claim Does Not Merely Recite a Judicial Exception, and Any AI Operations May Not Be Reduced to a Bare "Algorithm"
The rejection characterizes the claim as directed to a mental process and a fundamental economic practice. Applicant respectfully submits that this characterization improperly reduces the claimed neural-network operations to a bare mathematical algorithm and, in doing so, repeats the error the Appeals Review Panel identified in Ex parte Desjardins. There, the Panel - comprising the Director of the USPTO, the Acting Commissioner for Patents, and a Vice Chief Administrative Patent Judge - cautioned that Examiners and Board panels should not simply equate any machine learning with an unpatentable "algorithm" while dismissing the remaining limitations as "generic computer components," and criticized precisely that reasoning as overbroad. The present claims do not recite an abstract process, nor a process that can be performed in the human mind. It recites operations carried out by a specifically configured neural network - a configuration of nodes arranged within a topology, each node corresponding to an activation function that operates based on a connection to another node - together with a training regime in which the model is trained incrementally on analyzed input data across a number of timesteps, with such training occurring in parallel and within a predetermined periodicity relative to the ongoing analysis, and per-node comparison of data-structure information through a series of activation functions. A person cannot practically perform per-node comparison across a neural- network topology, or conduct parallelized incremental training synchronized to a defined periodicity, "in their mind" or "with pen and paper." See MPEP § 2106.04(a)(2)(III)(C). The claim therefore does not fall within any enumerated abstract-idea grouping.
C. Step 2A, Prong Two - The Claim Reflects an Improvement to Computer Functionality and to How the Machine-Learning Model Itself Operates Even assuming arguendo that the claim recites a judicial exception (it does not), the claim integrates any such exception into a practical application and is therefore not "directed to" the exception. See MPEP § 2106.04(d). This is the dispositive inquiry under Ex parte Desjardins, where the Panel held that claims that "may" recite an abstract idea are nonetheless eligible when they reflect improvements to computer functionality, and identified a machine-learning training- optimization limitation as constituting an improvement to how a machine learning model itself operates. Improvement to how the model itself operates. The claimed training regime is directly analogous to the limitation the Desjardins Panel found eligible. There, the pertinent limitation adjusted model parameters to optimize performance on a later task while protecting performance on a prior task
- an improvement to model operation, not a generic instruction to "apply" machine learning.
Here, the claim recites training the Al model incrementally over a number of timesteps, in which the input data is analyzed to determine an accuracy, with such training occurring in parallel and within a predetermined periodicity with the analysis of the information. Like the limitation credited in Desjardins, this is a concrete, non-generic improvement to how the model is trained and maintained over successive inputs - enabling the model to be updated incrementally while preserving accuracy - rather than an abstract result untethered from the operation of the machine. This is the Enfish principle the Panel invoked: many advances in computer technology "are not defined by particular physical features but rather by logical structures and processes." Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1339 (Fed. Cir. 2016). Solution rooted in the technology to a problem arising in that technology. See, e.g., paragraphs 0002-0012 of the published Specification. The claim improves the technical field of network content dissemination. It determines a predicted performance of the data structure over a network that includes protocols indicating a network connectivity type - a local area network or a cellular network - modifies the data structure based on that prediction, and implements the modified data structure over the network so that the digital content is communicated to a client device according to whether the client device is connected to the local area network or the cellular network. This is a solution "necessarily rooted in computer technology in order to overcome a problem specifically arising in the realm of computer networks." DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245 (Fed. Cir. 2014). The problem - optimizing dissemination of digital content across heterogeneous connectivity types - has no pre-Internet analog, and the claimed solution operates through a specific, connectivity-aware routing determination rather than generic transmission. Particular operations, not preemption. As in McRO, Inc. v. Bandai Namco Games America Inc., 837 F.3d 1299 (Fed. Cir. 2016), the claim recites a specific, limited sequence - determination of a set of previous data structures, per-node comparison via a series of activation functions, derivation of a predicted network performance expressed as connectivity-type protocols, and connectivity-specific implementation. The claim does not preempt the use of Al to manage network communications; it is confined to the particular ordered operations recited. Because the claim recites a specific improvement to how the model operates and to network content dissemination, rather than a generic linkage to a technical environment, any recited exception is integrated into a practical application and the claim is eligible at Step 2A. D. Step 2B - The Claim Recites Significantly More Than Any Exception Should Step 2B be reached, the claim recites an inventive concept sufficient to transform any exception into a patent-eligible application. Under Berkheimer v. HP Inc., 881 F.3d 1360 (Fed. Cir. 2018), whether claim elements are well-understood, routine, and conventional is a question of fact that must be supported by evidence - a factual finding the present rejection does not make. The non-conventional ordered combination here includes (i) determination of a set of previous data structures and per-node comparison against that set through a series of activation functions; (ii) incremental, parallel training synchronized to a predetermined periodicity with the ongoing analysis; and (iii) derivation of a predicted performance expressed as connectivity-type protocols that drive modification of the data structure and connectivity-aware dissemination to a client device. Even if individual elements were assumed known, their particular arrangement supplies the inventive concept. BASCOM Global Internet Servs., Inc. v. AT&T Mobility LLC, 827 F.3d10 1341 (Fed. Cir. 2016). Consistent with Ex parte Desjardins, the appropriate tools for policing the scope of these claims are the novelty, non-obviousness, and disclosure requirements of § § 102, 103, and 112 - not § 101. Absent record evidence that this specific combination is well- understood, routine, and conventional, the rejection cannot be sustained at Step 2B.
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 instant claimed invention and DDR Holdings have different claim sets and different fact patterns, and therefore the two are not analogous. The subject claim considered by the DDR Court pertained to a visitor of a host's website clicking on an advertisement for a third-party product displayed on the host's website, whereby the visitor is no longer being transported to the third party's website. In DDR, instead of losing visitors to the third-party's website, the host website can send its visitors to a web page on an outsource provider's server that incorporates "look and feel" elements from the host website, and provides visitors with the opportunity to purchase products from the third-party merchant without actually entering that merchant's website. Id. at 1257-58. Here, in contrast to the claims of DDR Holdings, the present claims are not necessarily rooted in computer technology to solve Internet-centric problems. See DDR Holdings, 773 F.3d at 1257. Unlike DDR Holdings, Applicant’s device is not claimed as solving or otherwise addressing an Internet-centric problem, but rather is directed to an abstract idea as discussed supra. The instant claimed invention and McRO have different claim sets and different fact patterns, and therefore the two are not analogous. Furthermore, in McRO the Courts concluded that the claimed invention was not directed to an abstract idea under prong one of Alice. The Court concluded the subject claims did not recite an abstract idea because the computer animation improved the prior art through the use of rules, rather than artists, to set morph weights and transitions between phonemes. Id. at 1308. Thus, the claimed invention in McRO allowed for computer performance of animation steps that previously had to be performed by human animators. Id. at 1313. Notably, the Court in McRO determined that the process required by the claims was not a process previously used by human animators. Id. at 1314. Therefore, the claims in McRO used "limited rules in a process specifically designed to achieve an improved technological result" over "existing, manual 3-D animation techniques." Id. at 1316. Contrary to McRO, the instant claimed invention is directed towards an abstract idea - see the detailed 35 USC 101 analysis above- and the claims do not recite a computer-automated process that uses rules for animators unlike those previously employed by humans or a similar type of improvement. Rather, the present claims recite certain methods of organizing human activity (i.e., an abstract idea as discussed supra). The instant claimed invention and Enfish have different claim sets and different fact patterns, and therefore the two are not analogous. Furthermore, in Enfish, the Courts found that no abstract idea was present, that the claims were directed to a self-referential table for a computer database, and that the claims were directed to an improvement of an existing technology. The Courts further emphasized that the specification taught specific technical benefits over conventional databases. Contrary to Enfish, the instant claimed invention includes an abstract idea (see the 35 USC 101 analysis above), and the claim-set does not include additional elements that are sufficient to amount to significantly more than the judicial exception because the additional elements when considered both individually and as combination do not amount to significantly more than the abstract idea. The instant claimed invention and Bascom have different claim sets and different fact patterns, and therefore the two are not analogous. Furthermore, in Bascom, the Courts concluded that the claim limitation takes as an “ordered combination” under step two are an inventive concept, sufficient for patent eligibility under 35 USC 101. When considered as an ordered combination, the Federal Circuit concluded the claims provided "an inventive concept can be found in the non-conventional and non-generic arrangement of known, conventional pieces." Id. Because of the ordered combination elements, the claims in Bascom were considered to improve the functionality of the computer, and thus amounted to significantly more under step two of the Alice analysis. Contrary to Bascom, the instant claimed invention, when implemented, does not improve the functionality of the computer nor does it improve a technology/technical field. The present claims recite an abstract idea using additional elements that are generic computing components as discussed supra, or at best, improving an abstract idea - not an inventive concept. There is no technical evidence/technical support in the Applicant's Specification of technical improvements or of a technical solution to a technical problem. In Ex Parte Desjardins, it was deemed that the claimed invention recites an abstract idea, and that the Specification identifies 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 – i.e. the Spec. describes an improvement to the field of learning systems, and thus the claims as a whole integrate 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). Contrary to Ex Parte Desjardins, the pending claims, when implemented, do not improve other technology/technical field; they do not provide an improvement to learning systems. They do not improve the other technology/technical field of learning systems by learning new tasks while protecting knowledge about previous tasks to overcome the problem of “catastrophic forgetting” encountered in continual learning systems. As noted above , the pending claims that recite using a trained model to analyze/determine data do no more than apply or link the use of the recited judicial exception to a particular technological environment/field of use. 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.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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 extension fee 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 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 M-F 9:00am-5pm. 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. Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see http://pair-direct.uspto.gov. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
Sincerely,
/Alexandru Cirnu/
Primary Patent Examiner, Art Unit 3622
7/13/2026
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