Now more than ever, technology is influencing the way we do business, communicate, move through and around the world, access and manage our homes, receive and administer healthcare, make purchases, secure information, and protect our most valuable property. Morrison Foerster keeps pace with this rapidly evolving landscape across our internationally recognized corporate, finance, intellectual property, and litigation practices. MoFo Tech brings together our insights relating to fields such as blockchain and distributed ledger, cloud and as-a-service technologies, driverless cars, drones, fintech, computer hardware and software, the Internet of Things, semiconductors, and telecommunications. The MoFo Tech blog offers real-time, in-depth analyses of the trends and complex issues shaping the global technology industry.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Scott Llewellyn’s practice focuses on complex litigation in federal and state courts around the country, with an emphasis on patent and trade secret disputes. Over the past decade, he has worked on some of the most significant, high–profile IP cases involving technology for televisions, smartphones, and self–driving cars, relying on 40 years of experience with computer hardware and software. Scott also has significant experience with business divorce cases before courts and arbitrators, involving a mix of trade secret, patent, tort, and contract claims relating to technology development and implementation.Scott also has successfully tried general commercial arbitration and agency matters, briefed and argued various appeals in federal appellate court, and tried more than 20 cases for the Denver City Attorney’s office, most of them jury trials.Scott also has an active pro bono practice, having worked on a variety of criminal and immigration appeals, and having represented Colorado criminal defense and mental health organizations in high–profile suits against the state of Colorado for violations of the constitutional rights of defendants.At MoFo, Scott serves on the board of the Morrison & Foerster Foundation. In the broader legal community, he serves on the boards of the Colorado Lawyers Committee and Drop in the Bucket (a charity that builds wells and sanitation systems in sub–Saharan Africa).After law school, Scott clerked for the Honorable Clarence A. Brimmer, District of Wyoming, and the Honorable Diarmuid F. O’Scannlain, Ninth Circuit. He was also previously an adjunct professor at the Georgetown University Law Center.

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Scott Llewellyn’s practice involves complex litigation before state and federal courts around the country, with an emphasis on patent and trade secret disputes for high-tech companies, to which he brings more than 35 years of experience with computer hardware and software, in particular relating to the processing and transmission of audio, video, voice, and other types of data. Mr. Llewellyn has also tried commercial arbitration and agency matters; briefed and argued various appeals in federal appellate court; and tried more than 20 cases for the Denver city attorney’s office, most of them jury trials.

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The evolution of artificial intelligence (AI) technologies has triggered a surge in the filings of patent applications, from machine learning models to applications of those models. 

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AI Trends For 2024 - The “Abstract Ideas” Behind Artificial Intelligence Inventions | MoFo Tech

Lily Li

Steven M. McKeever

The evolution of artificial intelligence (AI) technologies has triggered a surge in the filings of patent applications, from machine learning models to applications of those models. See USPTO, Artificial Intelligence (AI) trends in U.S. patents (June 29, 2022) at 7. But because AI technologies rely on machine learning algorithms and computing power, AI inventions face challenges in light of the legal standards under Section 101 of the Patent Act.Section 101 sets forth eligibility requirements for patents, providing that they may be granted only for a “new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.” 35 U.S.C. § 101. In Alice Corporation v. CLS Bank International, the U.S. Supreme Court set forth a two-part test to determine if a claimed invention is eligible for patent protection: (1) whether the claim of an invention is directed to a patent-ineligible concept, such as an abstract idea; and (2) if so, whether the claim recites an “inventive concept” sufficient to transform the abstract idea into a “patent-eligible application.” 573 U.S. 208, 217-18 (2014).In a recent case in the District of Delaware, the court found that the plaintiff’s patents claimed no more than an abstract idea “using known generic mathematical techniques.” See Recentive Analytics, Inc. v. Fox Corporation, No. 22-cv-1545-GBW, 2023 WL 6122495, *8 (D. Del. Sept. 19, 2023) (appeal pending). The two patents both involved machine learning techniques, directed to methods for (1) generating television network schedules, and (2) optimizing event schedules by considering a variety of parameters. Id. at *1–2.Regarding the first Alice prong, the court found that the patents recited collecting and analyzing information, a “familiar class of claims directed to a patent-ineligible concept.” Id. at *9. The court distinguished the patents from those in McRO, Inc. v. Bandai Namco Games America Inc. See 837 F.3d 1299 (Fed. Cir. 2016) (claims reciting software for animating lip synchronization and facial expressions of animated characters were not directed to an abstract idea). First, the television network maps produced by Recentive’s methods were “less tangible than the created animated characters” in McRO. Recentive at *8. Second, “changing a process where both humans and algorithms are trying to maximize TV ratings” was different from transforming “a traditionally subjective process performed by human artists into a mathematically automated process” in McRO. Id. Finally, the rules Recentive claimed were “conventional machine learning techniques,” unlike the “specific and unconventional” ones in McRO. Id.Regarding the second Alice prong, the court held that the patents did not involve an “inventive concept.” Id. at *12. Instead, “[t]he machine learning limitations [were] described only in broad functional terms and provide[d] little guidance on model parameters or training technique[.]” Id. For example, the patents vaguely disclosed “any suitable machine learning technique” and “using either a neural network or a support vector model and iteratively training it.” Id.Recentive sought to distinguish the claimed inventions from the way human brains might process the same information, emphasizing that “humans process data qualitatively, rather than quantitatively,” and that “[t]he number of possible solutions is far beyond what a human could process.” Id. The court rejected these arguments, reasoning that it is irrelevant whether a human brain would process the information the same way as AI. Rather, “[t]he relevant question is whether the machine learning processes are mathematical algorithms.” Id. The court found that no amount of data or computing power made a meaningful difference: “humans can engage in the mathematical techniques to perform machine learning (albeit slowly).” Id.Claims directed to novel methods for improving prior art neural networks, however, can still be eligible. The court noted that a “Method for Training a Neural Network for Facial Detection” identified in the USPTO’s guidance (M.P.E.P. § 2106.04(a)(1)) described such methods as “an expanding training set using mathematical transformations and the minimization of false positives using a distinctive training method.” Recentive, 2023 WL 6122495 at *6. Recentive’s claims were not analogous. Instead, they merely “relate[d] to the application of machine learning techniques to a manual process.” Id.With Recentive in mind, patentees should be prepared to articulate what makes their AI claims patentable, for example, by focusing on specific and unconventional machine learning techniques claimed in the patents.

AI Trends For 2024 - The “Abstract Ideas” Behind Artificial Intelligence Inventions

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