Is conventionality considered at Alice’s step one or not?

The Fed. Cir. just created a lot of confusion in my mind when it struck down today another AI patent for failing to recite patent eligible subject matter under 35 U.S.C. § 101 in Rensselaer Polytechnic Inst. v. Amazon (nonprecedential). Obviously, this is another blow to the patent eligibility of AI after Recentive, and I’ll discuss that, but the court spent pages discussing whether aspects of the claim were conventional at step one! In fact, the court stated, “[w]e have also ‘repeatedly analyzed conventionality at step one….'” Hmmm. Didn’t Powerblock (a precedential decision) say in August that, at step one, “[w]e decline iFit’s invitation to read out or ignore limitations … merely because they can be found in the prior art?” And didn’t the court there also warn us at fn. 3 not to “conflate the separate novelty and obviousness inquiries … with the step one inquiry under § 101?” Yes, they did. So, I’m confused.

Nevertheless, the patent involves natural language processing which is “in the context of this patent, a type of machine learning or artificial intelligence.” The claim is highly functional, and the preamble simply recites, “A method for processing a natural language input provided by a user, the method comprising.” So, I knew it was doomed when the method wasn’t even limited to a computer. The court found the claim was directed to an abstract idea because “the claims largely recite the use of generic technology using standard methods.” The court also stated that “[g]eneric use of AI without other parameters, such as ‘improving the mathematical algorithm or making machine learning better,’ is abstract.” (citing Recentive) The court held: “It follows under Recentive that in the context of software patents the application of a well-established idea (case-based reasoning or AI) to a novel environment (natural language processing) is abstract at step one of the Alice analysis.”

Having already analyzed conventionality, it was therefore not surprising at step two when the court found that the claim did not provide an inventive concept.

Apparently, there’s a split at the Fed. Cir. about whether conventionality is considered at step one. So, be ready to address this in your 101 arguments that may end up there.