Archive for October, 2018

EPO Provides Patentability Guidance for AI-based Applications

Monday, October 22nd, 2018

The European Patent Office (EPO) has provided further guidance for examination in relation to the patentability of inventions involving mathematical methods and computer programs. This updated guidance is of particular relevance to inventions relating to the fast-growing field of Artificial Intelligence (AI).  This guidance was published as part of the EPO’S annual update of the “Guidelines for Examination”.

The new EPO Guidance first defines AI and ML as being “computational models and algorithms for classification, clustering, regression, and dimensionality reduction, [and which may include] neural networks, genetic algorithms, support vector machines, k-means, kernel regression, and discriminant analysis.”  Additionally, the Guidance states that such computation models and algorithms relating to AI and ML are “per se of an abstract mathematical nature,” indicating that the EPO will likely treat such algorithms as unpatentable by default.
Generally, under examination by the EPO, applications involving mathematical methods are excluded from patentability unless they are determined to have technical character.  In assessing whether a mathematical method possesses such technical character, a determination is made whether the invention produces a technical effect that serves a technical purpose.  A generic purpose such as “controlling a technical system” is not sufficient to confer technical character to the mathematical method.  However, the Guidance specifically notes that “artificial intelligence and machine learning find applications in various fields of technology,” and highlights examples of a “neural network in a heart-monitoring apparatus” and “classification of digital images, videos, audio or speech signals based on low-level features” as both possessing technical character.  In contrast, the EPO identified the classification of text documents solely based on their textual content and classification of abstract data records without any indication of a particular technical use as not having technical purpose.  Furthermore, the EPO treats expressions such as “support vector machine”, reasoning engine”, or “neural network” as merely referring to abstract models that are “devoid of technical character.”
Going forward, it appears that AI-ML-related applications filed in the EPO should specifically highlight how a specific field of technology is improved by the AI-ML-related mathematical methods in order to best demonstrate technical character.
My thanks to Greg Rabin from Schwegman, Lundberg & Woessner, P.A., for this post.

PTAB Reverses 101 Rejection for Ranking Based on Web Page Dwell Time

Friday, October 12th, 2018

On an appeal from a 101 rejection by an examiner, the PTAB has reversed a 101 rejection to the following claim, from eBay’s U.S. Application No. 12/814,020:

18. A method comprising:

identifying a plurality of listings stored in a listing database as search results;

determining, using a processor, a respective dwell time associated with each of the plurality of listings, the dwell time based on an elapsed amount of time one or more users view a page describing the listing, and the dwell time associated with a likelihood of a transaction occurring with respect to the listing; and

ranking the listings composing the identified plurality of listings based at least in part on the respective dwell time associated with each of the plurality of listings.

The PTAB reasoned:

“We determine claim 1 is directed not only to the “business idea” of organizing (ranking) search results, but claim 1 also is directed to the use of dwell time, which is an Internet-centric challenge. See, e.g., Spec. 1–4, 12-16. Claim 1 is analogous to the claim at issue in DDR Holdings in that, in both cases, a key aspect of the claim focuses on “a challenge particular to the Internet.” DDR Holdings, 773 F.3d at 1257.”

I agree with the PTAB that this claim involves a idea related to the operation of a computer system, not an idea where novelty is based on a new piece of information or a new type of information that is abstract in nature, and therefore should fall inside 101.

The brief for this appeal was written by Schwegman, Lundberg & Woessner, PA, and in particular, by Jeff Ranck.



eBay is attempting to patent a list of listings ranked by “dwell time” — the “elapsed amount of time one or more users view a page describing the listing.”

Recent PTAB Reversals of Section 101 Rejections

Monday, October 8th, 2018

Here are some recent PTAB Reversals of Section 101 rejections:

Ex parte Oudenallen—Claims for a garment for preventing hypothermia:

The PTAB Reversed an Examiner’s 101 Rejection of Claims in a Facebook Patent Application, Citing Berkheimer:

An IBM patent application saved by Berkheimer:

WMS Gaming/Bally case —a Win for WMS at the PTAB under 101:

The PTAB Reversed a 101 Rejection of Claims in a Halliburton Patent Application:

The PTAB Reversed an Examiner’s 101 Rejection of Claims for a Method for Measuring Central Aortic Pressure:

The PTAB Reversed an Examiner’s Rejection of Claims for Adhesive Labels,; Yes, that’s right, Adhesive Labels: