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
This final office action is prepared in response to amendments and arguments filed by Applicant on February 20, 2026 as a reply to the non-final office action mailed on November 20, 2025.
Claims 1-20 are pending.
Claims 1-5, 7-12, 14-18 and 20 are rejected.
Claims 6, 13 and 19 are objected to for containing allowable subject matter.
Response to Arguments
The claim amendments and Applicant’s arguments filed on February 20, 2026 have been carefully considered but deemed unpersuasive in view of the new grounds of rejection as set forth below, necessitated by Applicant’s substantial amendments to the claims which significantly affected the scope thereof, and will require further search and consideration.
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).
Examiner’s Note
Examiner would like to note that on April 15, 2026, Examiner reached out to Applicant’s representative, Mr. Rigel Menard, over both telephone and email to recommend claim amendments that would potentially place the claims in condition for allowance. However, Examiner has not heard back from Mr. Menard since.
Allowable Subject Matter
Claims 6, 13 and 19 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
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.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1, 8 and 15 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 18 of co-pending Application No. 18/238,180, (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other as shown in the table below.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
18/680,427 (application being examined)
18/238,180 (reference application)
15. A system for detecting drifted data, the system comprising:
a trained neural network (NN) configured as an intrusion detection system, the trained NN generates a classification for an input cyber data packet;
processing circuitry configured to:
retrieving, from memory, a stored topological feature associated with the classification, wherein the stored topological feature is computed from topological persistence diagrams of training cyber data packets labeled with the classification;
generate, based on a state of one or more layers of the NN responsive to the input, a topological persistence diagram;
determine a distance between the topological persistence diagram and a topological feature associated with the classification; and
issue an alert responsive to the distance meeting one or more criterion.
1. A system, comprising: at least one processor configured to:
obtain a trained neural network (NN) having classes, layers, and activation weights for the classes and layers, the classes including a given class, the layers including a given layer;
obtain or calculate at least one average feature information associated with the trained NN, each of the at least one average feature information including a given average feature information summarizing in-class statistics that each layer of the layers of the trained NN uses for the given class
receive an incoming observation influencing the given layer; calculate a corresponding feature information of the incoming observation, the corresponding feature information summarizing statistics of the incoming observation for the given layer; (Examiner’s note: what is recited above is a detailed process for generating a topological persistence diagram);
based at least on the trained NN, classify the incoming observation as being in the given class; for the incoming observation classified to be in the given class, calculate a distance score associated with a distance between the corresponding feature information of the incoming observation and the given average feature information;
based at least on the calculated distance score, determine that the incoming observation is an out-of-distribution (OOD) sample; and upon a determination that the incoming observation is the OOD sample, at least one of output an alert indicating that the incoming observation is OOD or discard the classification of the incoming observation as being in the given class.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1, 3-4, 8, 10-11, 15 and 17-18 are rejected under 35 U.S.C. 102(a)(2) as being unpatentable over Akumu et al. (US 2025/0139437).
Regarding claim 1, Akumu disclosed a method for detecting drifted data to a cyber intrusion detection system represented by a trained neural network (NN) (Akumu, [0113], “With the present approaches and compressed histogram, in a cyber security application the system can detect the anomalous sample and block access to same and sends the event and/or sample remotely to system administrators who can monitor the situation and improve their defense processes for the neural network”), the method comprising:
generating, by the trained NN, a classification for an input cyber data packet (Akumu, Fig. 3A, step 310 and [0096], “Looking now to operation 310, a new set of test data is received and evaluated using the pre-trained deep neural network”);
generating, based on a state of one or more layers of the NN responsive to the input, a topological persistence diagram (Akumu, Fig. 3A, step 312 and [0097], “Certain nodes in the various layers of the pre-trained deep neural network are activated as a result of inspecting the test data. Accordingly, operation 312 includes extracting activations from layers of the deep neural network in response to evaluating the test data” said activations anticipates the “topological persistence diagram” in the claim);
retrieving, from memory, a stored topological feature associated with the classification, wherein the stored topological feature is computed from topological persistence diagrams of training cyber data packets labeled with the classification (Akumu, Fig. 3A, step 302-308 and [0081], “activations that result from evaluating the training data are extracted from layers of the pre-trained deep neural network” and [0094], “operation 308 includes storing the compressed histograms in memory. … Storing the compressed histograms thereby provides the ability to access node-specific performance of the neural network as desired.” Akumu’s compressed histograms anticipates the “stored topological feature” in the claim);
determining a distance between the generated topological persistence diagram and the retrieved stored topological feature (Akumu, fig. 3A, step 314 and [0099], “Each of the activations may be compared to a respective one of the compressed histograms to compute a p-value for the given activation.” Said comparison of the activations to a respective one of the compressed histograms to compute a p-value is equivalent to determining a distance between them); and
issuing an alert responsive to the distance meeting one or more criterion (Akumu, [0113], “in a cyber security application the system can detect the anomalous sample and block access to same and sends the event and/or sample remotely to system administrators”).
Claim 8 lists substantially the same elements as claim 1, in machine-readable medium form rather than method form. Therefore, the rejection rationale for claim 1 applies equally as well to claim 8.
Claim 15 lists substantially the same elements as claim 1, in system form rather than method form. Therefore, the rejection rationale for claim 1 applies equally as well to claim 15.
Regarding claims 3, 10 and 17, Akumu disclosed the subject matter of claims 1, 8 and 15, respectively.
Akumu further disclosed wherein the criterion is determined based on statistical analysis of distances computed for in-distribution training samples (Akumu, [0098], “operation 314 includes using the node-specific compressed histograms developed while training the deep neural network used to evaluate the test data and determine (e.g., compute) p-values for each of the extracted activations. With respect to the present description, a “p-value” is intended to refer to a value that represents a statistical metric which measures the probability there is no relationship between two or more variables.”)
Regarding claims 4, 11 and 18, Akumu disclosed the subject matter of claims 1, 8 and 15, respectively.
Akumu further disclosed wherein the stored topological feature comprises an aggregated representation computed by: computing topological persistence diagrams for a plurality of training cyber data packets known to be associated with the classification (Akumu, Fig. 3A, step 304 and [0081], “the intermediate layers of the pre-trained deep neural network are inspected to determine the layers that include nodes which experienced an activation caused by evaluating the training data.”); and aggregating the topological persistence diagrams to generate the stored topological feature (Akumu, Fig. 3A, step 306 and [0088], “operation 306 includes using the extracted activations during training to generate compressed histograms”).
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102 of this title, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 2, 9 and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Akumu et al. (US 2025/0139437) in view of Nunez et al. (an article titled “A class of topological pseudodistances for fast comparison of persistence diagrams” published in February 2024).
Regarding claims 2, 9 and 16, Akumu disclosed the subject matter of claims 1, 8 and 15, respectively.
Akumu might not have explicitly disclosed wherein determining the distance comprises computing a Wasserstein distance between the generated topological persistence diagram and the retrieved stored topological feature.
However, Nunez disclosed a class of topological pseudodistances for fast comparison of persistence diagrams. In particular, Nunez disclosed
wherein determining the distance comprises computing a Wasserstein distance between the generated topological persistence diagram and the retrieved stored topological feature (Nunez disclosed in the section “Wasserstein-Type distances between persistence diagrams (PD)” that Wasserstein metric is a commonly used method to measure the distance between persistence diagrams).
One of ordinary skill in the art would have been motivated to combine Akumu and Nunez before the effective filing date of the claimed inavention because Akumu disclosed the need to compare activation maps (i.e. persistence diagrams) while Nunez disclosed methods for doing so, therefore it would have obvious to modify Akumu with Nunez’s teaching as such that Akumu would use Wasserstein metric to compare the activation maps as doing so would have expanded Akumu’s ways to comparing the activation maps.
Claims 5, 7, 12, 14 and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Akumu et al. (US 2025/0139437) in view of Gebhart et al. (“Adversary Detection in Neural Network via Persistent Homology” published in 2017).
Regarding claims 5 and 12, Akumu disclosed the subject matter of claims 4 and 11, respectively.
Akumu might not have explicitly disclosed but Gebhart disclosed wherein aggregating the topological persistence diagrams comprises computing a barycenter of the topological persistence diagrams (Gebhart disclosed in section 5.4.2, equations (6), (7) and (8) that calculate the mean and standard deviation across all observations, which are then used to predict whether an input is adversarial or not. The calculation of the mean in equation (7) is basically to calculate the barycenter of the topological subgraphs of the neural networks).
One of ordinary skill in the art would have been motivated to combine Akumu and
Gebhart because both references disclosed methods for detecting adversarial attacks using information within the neural network (Akumu, [0025, 0029]; Gebhart, Abstract and Title).
Therefore it would have been obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to combine Akumu and Gebhart as such that Akumu’s compressed histogram could be calculated using the mean and standard deviation taught by Genhart.
Regarding claims 7, 14 and 20, Akumu disclosed the subject matter of claims 4, 11 and 18, respectively.
Akumu might not have explicitly disclosed but Gebhart further disclosed wherein the topological feature is a barycenter (Gebhart disclosed in section 5.4.2, equations (6), (7) and (8) that calculate the mean and standard deviation across all observations, which are then used to predict whether an input is adversarial or not. The calculation of the mean in equation (7) is basically to calculate the barycenter of the topological subgraphs of the neural networks).
The rationale for combining Speakman and Gebhart is the same as that presented in the rejection of claims 5 and 12 above.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any 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 SHIRLEY X ZHANG whose telephone number is (571)270-5012. The examiner can normally be reached 8:30am - 5:00pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Joon H Hwang can be reached at 571-272-4036. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/SHIRLEY X ZHANG/Primary Examiner, Art Unit 2447
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