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 .
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 1-6, 8-13, 15-20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more. The claim(s) recite(s) collecting data and using a machine learning model on the data. This judicial exception is not integrated into a practical application because the limitations of collecting data and analyzing (using) the data using AI is a process that, under its broadest reasonable interpretation, is recited at a high level of generality such that they can practically be performed in the human mind, Electric Power Group v. Alstom, S.A., 830 F.3d 1350, 1353-54, 119 USPQ2d 1739, 1741-42 (Fed. Cir. 2016). The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the claim only recites the additional elements application-specific integrated circuit (ASIC) and network device to perform the steps of collecting and using a machine learning model. The ASIC and/or networking device in both steps are recited at a high-level of generality such that it amounts no more than mere instructions to apply the exception using a generic computer. Accordingly, this additional element does not integrate the abstract idea into a practical application because it does not impose any meaningful limits on practicing the abstract idea. The claim is directed to an abstract idea.
The claim does not include additional elements that are sufficient to amount to significantly more than the judicial exception. The claim is not patent eligible.
Claims 1, 3-7 are rejected under 35 U.S.C. 101 because the claimed system is a software object as it only comprises stored instructions. Thus, applying the broadest reasonable interpretation in light of the specification and taking into account the meaning of the words in their ordinary usage as they would be understood by one of ordinary skill in the art, the claimed system can be software per se. Therefore, the claimed subject matter as a whole fails to fall within the definition of a process, a machine, manufacture, or composition of matter.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 7 and 14 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claims 7 and 14 recite the limitation "the undesired use". There is insufficient antecedent basis for this limitation in the claim.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(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.
Claim(s) 1-20 is/are rejected under 35 U.S.C. 102(a)(2) as being anticiapted by Aviv et al. (US 2021/0226988) hereafter Aviv.
1. Aviv discloses a system, comprising stored instructions that cause the system to at least:
collect data while the system performs at least one networking function, the data to be associated with the at least one networking function (para 53-61); and
use a machine learning model to obtain an inference based, at least in part, on the data (para 56).
2. Aviv discloses the system of claim 1, wherein the system comprises an application-specific integrated circuit (“ASIC”), and the stored instructions cause the ASIC to collect the data and perform the at least one networking function (para 69-70).
3. Aviv discloses the system of claim 1, wherein the system is connected to a network, and the inference indicates whether network traffic processed by the system indicates a denial-of-service (“DoS”) attack, or other malicious use of the system (para 56, flood attack, stress; fig.8 and corresponding text).
4. Aviv discloses the system of claim 1, wherein the system is connected to a network, and the data is telemetry data associated with network traffic processed by the system (para 55-56).
5. Aviv discloses the system of claim 1, wherein the stored instructions further cause the system to at least: analyze the inference to determine if the inference indicates a denial-of-service (“DoS”) attack, or other malicious use of the system (para 56; see also para 42-45).
6. Aviv discloses the system of claim 1, wherein the stored instructions further cause the system to at least: respond to the inference (para 59-60).
7. Aviv discloses the system of claim 1, wherein the inference infers an undesired use of the system has occurred, and the stored instructions further cause the system to at least block an address associated with the undesired use (para 59-60).
Claims 8-20 are similar in scope to claims 1-7 and are rejected under similar rationale.
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 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-25 of U.S. Patent No. 12,069,069. Although the claims at issue are not identical, they are not patentably distinct from each other because the claims of the current application are anticipated by the claims of the U.S. Patent listed above.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JAMES R TURCHEN whose telephone number is (571)270-1378. The examiner can normally be reached Monday-Friday: 7-3.
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/JAMES R TURCHEN/ Primary Examiner, Art Unit 2439