Artificial Intelligence And Subject Matter Eligibility In U.S. Patent Office Appeals – Part Three Of Three – Intellectual Property


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This post is Element 3 of a Three-Aspect Short article Collection
Artificial intelligence is changing sector and modern society, and
metrics at the US Patent and Trademark Business office (USPTO) replicate its
impact. In a the latest publication, the USPTO indicated that from 2002
to 2018 the share of all patent applications relating to artificial
intelligence grew from 9{565afb6a7dd3ab7cf54100f70e42ab263dca1ef4e5addf37831397e398fc3d13} to approximately 16{565afb6a7dd3ab7cf54100f70e42ab263dca1ef4e5addf37831397e398fc3d13}. See
“Inventing AI, Tracing the diffusion of artificial
intelligence with U.S. patents,” Business of the Chief
Economist, IP Data Highlights (Oct 2020). For the foreseeable
future, patent apps involving synthetic intelligence
systems, like equipment finding out, will boost with the
ongoing proliferation of these technologies. On the other hand, subject
make a difference eligibility can be a major problem in securing
patents on artificial intelligence and equipment finding out.
This 3-element write-up sequence explores USPTO managing of
Alice concerns involving synthetic intelligence and device
finding out by a sampling of latest Patent Trial and Attraction Board
(PTAB) conclusions. See Alice Corp. v. CLS Lender Int’l,
134 S. Ct. 2347 (2014). Some decisions dutifully applied USPTO
pointers on subject matter make any difference eligibility, including Illustration 39
thereof, to resolve enchantment concerns introduced to the PTAB. In one particular circumstance,
the PTAB sua sponte made available eligibility advice even with
no Alice attractiveness concern right before it. These choices advise
approaches to optimize patent drafting and prosecution for
synthetic intelligence and equipment understanding related
innovations.
Component A single can be viewed listed here.
Component Two can be seen below.
Section A few
“‘Machine Learning’ Is Small Additional Than
Just A further, Recognized, Knowledge Processing Approach”
The PTAB can present issue issue eligibility steerage on
artificial intelligence similar innovations even when not requested.
Ex parte Kneuper, Attractiveness 2020-005835 (PTAB April 28, 2021)
is a reminder to patent applicants about inherent unpredictability
and danger in PTAB attraction, particularly in relation to Alice.
In Kneuper, the sole issue on attraction right before the PTAB was
irrespective of whether the statements ended up correctly rejected throughout examination under
segment 103. The independent declare at problem recited:
1. An plane flight setting up apparatus comprising: a database
which includes
a plurality of forecasting styles configured to
make predictions of a predetermined attribute on
which at least a part of an aircraft flight system is dependent, exactly where
the predetermined characteristic features at minimum a part of a
weather forecast, and
at minimum one particular knowledge matrix of take a look at predictions for the
predetermined attribute produced by every single of the plurality
of forecasting products, each and every of the at minimum just one info matrix of exam
prediction features a plurality of test prediction facts points
and
an aircraft flight setting up controller coupled to the databases,
the plane flight arranging controller becoming configured
to receive investigation forecast information obtaining at the very least a person
investigation data stage,
select a forecasting product, from the plurality of
forecasting designs, centered on a comparison among the at the very least
1 assessment info point and the plurality of test prediction facts
points of a respective forecasting product, and
supply a prediction of the predetermined
characteristic created with the forecasting model, chosen
from the plurality of forecasting products, that corresponds to a
examination prediction info issue that is representative of the at the very least
one particular assessment knowledge position.
Id. at 2. Declare 4 in Kneuper depended from
assert 1, and extra the subsequent limitation: “wherein every of
the plurality of forecasting products are device mastering
products.” As a result, claim 4 specially coated device finding out
styles that make predictions of a predetermined attribute,
which include a portion of a weather forecast, on which at minimum a
part of an aircraft flight approach is based.
Prior to talking about the prior art situation on attraction, the PTAB
warned:
Ahead of delving into the deserves of the art rejection, we would be
remiss
if we failed to point out that Appellant’s promises look to
recite very little much more
than working with personal computer program for data selection, evaluation, and
display.
This kind of is typically deemed an abstract strategy in the kind of a
mental system
beneath our Guidelines for investigation less than 35 U.S.C. § 101 . .
.
Id. at 3. The 1st a few paragraphs of the selection
mirror the PTAB’s uninvited, albeit lively, skepticism
relating to eligibility, a non-situation up to that point. Of note, that
skepticism was not supported by any discussion of, for example, an
abstract idea, specific limitations, further constraints, prong
a single, prong two, an inventive strategy, or Case in point 39. With no regard
to the analytical framework that generally supports an
Alice selection, or an prospect for the patent applicant
to make its scenario, the PTAB likely sealed the fate of the claims at
problem with this directive to the examiner: “In the function that
Appellant carries on prosecution soon after resolution of this attractiveness,
the Examiner could want to assess the eligibility of this
software underneath Section 101.” This admonishment as to
eligibility was signaled by the PTAB’s later on observation in
relation to section 103 that “[a]t the conclude of the working day,
‘machine learning’ is very little much more than just another, identified,
data processing technique.” The PTAB acknowledged but
dismissed the truth that the specification in Kneuper
referenced decision trees, random forest algorithms, polynomial
in good shape, and k-closest neighbors as acceptable device understanding
models.
Kneuper is not surprising. Experienced practitioners
know that the PTAB is not shy boosting concerns devoid of invitation.
While there should be no doubt that such hazard also applies to
synthetic intelligence and device studying associated inventions,
the included unpredictability of Alice problems in certain
exacerbates danger. In this regard, patent candidates should really try to remember
that declare limits involving artificial intelligence and
machine discovering may perhaps be considered so deficient in terms of eligibility
as to warrant preemptive PTAB refusals.
Important Takeaways
Patent technique on synthetic intelligence and device mastering
innovations must account for current PTAB conclusions. The choices
explored in this three-section short article sequence show that claims
reciting predictive capabilities of machine understanding styles, even
when comparatively thorough, could not fulfill USPTO rules on
subject subject eligibility. Drafters appropriately ought to prepare
patent applications to guidance promises that recite detail about
implementation and education of the types. In addition, dialogue
in the specification about technological troubles defeat by
equipment mastering claim limits might reinforce eligibility
positions.
Other issues addressed by the PTAB decisions are also
relevant to patent approach. As the conclusions mirror variation
relating to PTAB focus on the first prong vs . the second prong of
Stage 2A, patent candidates must seize possibilities to present
arguments under equally. When device learning declare limits
concerning implementation are comprehensive, the initially prong and Illustration
39 additional easily support eligibility. This kind of specific claim restrictions
also may well bolster arguments developing a specialized enhancement
beneath the 2nd prong, specifically when complemented with strong
distinctions over prior artwork. Even more, before captivating even
non-Alice challenges, patent applicants must be organized for
the PTAB proactively questioning the eligibility of claims relating
to artificial intelligence and device discovering.
Note: To start with printed in The Intellectual Home
Strategist and Regulation.com.
The material of this post is intended to offer a normal
guidebook to the matter make a difference. Professional information should really be sought
about your distinct situations.
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