DETAILED ACTION
Status of the Application
This Non-Final Office Action is in response to Application Serial 16/897,688. In response to the Examiner’s action mail dated September 15, 2024, Applicant in response submitted an Appeal Brief that is mail dated February 17, 2025.
In the Patent Trial and Appeal Board Decision, that is mail dated February 03, 2026, the 35 U.S.C. 101 rejection was affirmed and the 35 U.S.C. 103 rejection was reversed.
In response to the PTAB Decision, Applicant has submitted arguments and amendments, that are mail dated April 02, 2026. In response to the PTAB Decision and the Applicant’s Arguments, Examiner is responding to the 35 U.S.C. 101 arguments and amendments. Regarding prior art, the PTAB Decision stands.
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 . 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 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.
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on April 02, 2026 has been entered.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on July 18, 2025, is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Response to Amendments
Claims 1-6, 8-13, and 15 -19 are pending in this application. The claims 1, 8, 15 are amended. The claims 7, 14, 20 are cancelled.
Regarding the 35 U.S.C. 101 rejection, the amendments to claims 1-6, 8-13, and 15 -19 are not persuasive. The claims 1-6, 8-13, and 15 -19 are rejected under 35 U.S.C. 101, see below.
Regarding the 35 U.S.C. 103 rejection, the amendments to claims 1-6, 8-13, and 15 -19 the Patent Trial and Appeal Board Decision mail dated February 17, 2025 is followed.
Response to Arguments
Applicant’s 35 U.S.C. 101 arguments filed on April 02, 2026 have been fully considered but they are not persuasive.
Claim Rejections under 35 U.S.C. 101
On pages 12- 16 of the Applicant’s 35 U.S.C. 101 arguments, the Applicant references the PTAB Decision and the Ex Parte Desjardins decision. Applicant submits resource planning of assigning resources to tasks when multiple constraints and preferences exists, can be subject to exponential increases in complexity as the number of tasks and resources increase an/or as the rules or constraints for how to assign those resources to tasks increase.
Applicant arguments present a three phase solution to manage the amount of computing resources used at each phase. The first phase is a strict priority phase assignment. In the second phase, priority levels of resources are used over multiple iterations in the computing resources performing assignment, citing instant application [055]. The third phase is directed computer resource swapping resources among tasks to tuple size over multiple iterations, citing instant application [066].
Applicant submits the amended claims are directed to a technical problem and technical solution of designing a computing system that can assign tasks to resources while concurrently managing the number of computing resources used, citing instant application [031].
Applicant argues the different levels of computing resources used, the amended claims improve the functioning of the computer by more than just a general linkage. Applicant refers to Enfish and DesJardins, the claimed invention is directed to an improvement in software that makes a non-abstract improvement to computer technology, just as hardware improvements can make non-abstract improvements.
Applicant submits the amended independent claims have a practical application in computer technology. Thus, the claims integrate any judicial exception into a practical application. Accordingly, the claims are eligible at Step 2A, Prong 2. Applicant request withdrawal of the rejection.
Examiner respectfully disagrees with the Applicant’s arguments. The claims are examined in light of 35 U.S.C. 101.
The Applicant’s claims are using a computer to conduct the abstract idea. The Applicant’s claims do not cite self-referential tables, so Enfish does not apply. The claims do not recite machine learning, and therefore, Desjardins does not apply.
As supported by the Decision p.8-9 the claims recite an abstract idea, the claims so not integrate the abstract idea into a practical application, and these claims recite additional elements that amount to well-understood, routine, and conventional activities. The PTAB decision further provides an analysis of the pending 35 U.S.C. 101, see pages 12-20.
The claims recite an abstract concept of resource planning which is a combinatorial optimization problem. The claims are assigning a set of resources to a set of tasks when there are many rules, priorities, and preferences to satisfy. The Applicant’s amendments add the computer to limitations and further explain tuple size. Examiner submits for the reasons stated above by the PTAB Decision, the claims remain patent ineligible.
Claim Rejections under 35 U.S.C. 103
On page 16 of the Applicant’s arguments, the Applicant submits, the Decision reversed the rejection under 35 U.S.C. 103.
Examiner respectfully acknowledges the Applicant’s statement. As a result of The Decision a new prior rejection is not required. Furthermore, the Applicant’s amendments that are submitted to overcome the pending 35 U.S.C. 101, further narrow the prior art. The prior art rejection is withdrawn.
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 15-19 are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter. The claim(s) does/do not fall within at least one of the four categories of patent eligible subject matter because these claims are directed to signal per se. Claim 9 recites, “ A memory including instructions, that when executed by a processor enable performance of an operation comprising: identifying resource use preferences for individual resources of a set of resources and a set of tasks to be performed by the set of resources; assigning the individual resources to individual tasks of the set of tasks in a first order according to priority list and a rule set of assigning individual resources to the set of resources to individual tasks of the set of tasks and based on the resource use preferences to generate a strict-priority assignment set, wherein the priority list includes a plurality of resource use preferences; in response to determining that a full assignment is not possible in assigning the individual resources to the individual tasks in the first order, based on a predefined priority level in the priority list being assigned according to a strict adherence to the priority list and the rule set, over a first plurality of iterations using increasing computing resources for a successive iteration of the first plurality of iterations: identifying, by the computing resources, a subset of resources of the set of resources that are below a specified priority level according to the priority list, [[;]] excluding, by the computing resources, one or more resource use preferences of the plurality of resource use preferences included in the priority list to generate a relaxed priority, [[;]] discarding, by the computing resources, assignments for the subset of resources to tasks identified in the strict-priority assignment set, wherein the subset of resources are available for assignment to remaining unassigned tasks in the set of tasks, wherein at least one assignment for at least one resource of the set of resources not included in the subset of resources is maintained, and[[;]] assigning, by the computing resources, the individual resources of the subset of resources to unassigned tasks of the set of tasks according to the rule set until each task of the set of tasks is fully assigned to update the strict-priority assignment set to a full- assignment assignment set with the relaxed priority; in response to completing assignments for the set of tasks, rectifying inversions in the full-assignment assignment set by, over a second plurality of iterations: selecting a tuple size for swapping the individual resources among selected tasks, wherein the tuple size is less than a number of the subset of resources [[;]] identifying, by the computing resources, a set of tuple of resource-to- task assignments, wherein each tuple of the set of tuples includes a number of resource-to-task assignments equal to the tuple size and further includes an inversion, and swapping, by the computing resources, the resource-to-task assignments identified in at least a first tuple of the set of tuples to remove the inversion and update the full-assignment assignment set to a reduced-inversion assignment set, wherein, for an earlier iteration of the second plurality of iterations, the tuple size is larger than for a subsequent iteration of the second plurality of iterations to use greater computing resources in the earlier iteration that is bounded by a process break than for the subsequent iteration; and in response to the reduced-inversion assignment set including no inversions, outputting the reduced-inversion assignment set..” The claim is a process and fails to identify a computer component. The claim is signal per ser, mere information in the form of data. As a result, claim 15 is rejected under 35 U.S.C. 101 for being directed to signal per se. Claims 16-20 are dependent on claim 15, and therefore, are directed to signal per se for the same reasons as claim 15.
Claims 1-6 are process.
Claims 8-13 are machine.
Claims 15-19 are signal pers se, process.
Claims 1-6, 8-13, and 15 -19 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more. The claim (claim 8 and similarly claim 1 and 15) recite, “ … identify resource use preferences for individual resources of a set of resources and a set of tasks to be performed by the set of resources, [[;]] assign the individual resources to individual tasks of the set of tasks in a first order according to priority list and a rule set of assigning individual resources to the set of resources to individual tasks of the set of tasks and based on the resource use preferences to generate a strict-priority assignment set, wherein the priority list includes a plurality of resource use preferences, [[;]] in response to determining that a full assignment is not possible in assigning the individual resources to the individual tasks in the first order, based on a predefined priority level in the priority list being assigned according to a strict adherence to the priority list and the rule set, over a first plurality of iterations using increasing computing resources for a successive iteration of the first plurality of iterations: identify, …, a subset of resources of the set of resources that are below a specified priority level according to the priority list= [[;]] excluding…, one or more resource use preferences of the plurality of resource use preferences included in the priority list to generate a relaxed priority [[;]] discarding, …, assignments for the subset of resources to tasks identified in the strict-priority assignment set, wherein the subset of resources are available for assignment to remaining unassigned tasks in the set of tasks, wherein at least one assignment for at least one resource of the set of resources not included in the subset of resources is maintained, and [[;]] assign, …, the individual resources of the subset of resources to unassigned tasks of the set of tasks according to the rule set until each task of the set of tasks is fully assigned to update the strict-priority assignment set to a full-assignment assignment set with the relaxed priority,[[;]] in response to completing assignments for the set of tasks, rectify inversions in the full-assignment assignment set, wherein the multilevel combinatorial optimizer is further operable to, over a second plurality of iterations: select, …, a tuple size for swapping the individual resources among selected tasks, wherein the tuple size is less than a number of the subset of resources,[[;]] identify, …, a set of tuple of resource-to- task assignments, wherein each tuple of the set of tuples includes a number of resource-to-task assignments equal to the tuple size and further includes an inversion, and swap, …, the resource-to-task assignments identified in at least a first tuple of the set of tuples to remove the inversion and update the full- assignment assignment set to a reduced-inversion assignment set, wherein, for an earlier iteration of the second plurality of iterations, the tuple size is larger than for a subsequent iteration of the second plurality of iterations to use greater computing resources in the earlier iteration that is bounded by a process break than for the subsequent iteration, [[;]] and in response to the reduced-inversion assignment set including no inversions, output the reduced-inversion assignment set wherein ...”. Claims 1-6, 8-13, and 15 -19 in view of the claim limitations, are recite and abstract idea of assigning a set of resources to a set of tasks when there are many rules, priorities, and preferences to satisfy. The abstract idea can be performed mentally, and thus, the claims recite a mental concept. The abstract idea being grouped as a mental concept, therefore, is directed to a judicial exception.
Moreover, the claims are identifying resource use preferences and assigning individual resources, which are business instruction, and thus, the claims recite certain methods of organizing human activity.
Additionally, the claims recite multi-level optimizing, assigning … the set of task in a first order according to priority, …. assigning the set of resources that are below a specified priority level … and tuple size, and thus, the claims relate to a mathematical concept.
The claims are recite mental concepts, certain methods of organizing human activity, and mathematical concepts, and thus, the claims recite an abstract idea. Under the first prong of Step 2A the claims recite abstract concept so the claims are directed to a judicial exception.
(Furthermore, example points Applicant to the Wikipedia definition of tuple, which is mathematical.)
This judicial exception is not integrated into a practical application under the second prong of Step 2A. In particular, the claims recite the additional elements beyond the recited abstract idea of “A system, comprising: a processor; and a memory including instruction that when executed by the processor provide a multilevel combinatorial optimizer operable to:”, “by the computing resource”; however, when viewed as an ordered combination, and pursuant to the broadest reasonable interpretation, each of the additional elements are computing elements recited at high level of generality implementing the abstract idea on a computer (i.e. apply it), and thus, adding the words “apply it” (or an equivalent) with the judicial exception, or mere instructions to implement an abstract idea on a computer, or merely uses a computer as a tool to perform an abstract idea - See MPEP 2106.05 (f).
The dependent claims do not recite additional elements that those recited in the independent claims.
The claims when considered as a whole do not amount to an improvement that is rooted in technology. Using a computer to conduct a mathematical concept, such as optimizing resource assignments is an improvement to the abstract concept. The claims are not integrated into a practical application at Step 2A prong two.
At Step 2B, the claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the additional elements when considered both individually and as an ordered combination do not amount to significantly more than the abstract idea. As discussed above it is apply it. (See MPEP 2106.05 f – mere instructions to Apply an Exception – “Thus, for example, claims that amount to nothing more than an instruction to apply the abstract idea using generic computer do not render an abstract idea eligible.” Alice Corp., 134 S. Ct. at 235). Mere instructions to apply an exception using a generic computer component cannot provide an inventive concept.
At step 2B, it is MPEP 2106.05 (d) – Receiving or transmitting data over a network, e.g., using the Internet to gather data, Symantec, 838 F.3d at 1321, 120 USPQ2d at 1362 (utilizing an intermediary computer to forward information).
Examiner concludes that the additional elements in combination fail to amount to significantly more than the abstract idea based on findings that each element merely performs the same function (s) in combination as each element performs separately. The claim is not patent eligible. Thus, taken alone, the additional elements do not amount to significantly more than the above-identified exception (the abstract idea). Looking at the limitation as an ordered combination adds nothing that is not already present when looking at the elements taken individually.
(As noted in the Decision for this application, the claims are unlike Bascom. See PTAB Decision dated 02/03/2026 p.20.)
Dependent claims 2-6 further narrow the abstract idea of independent claim 1. Dependent claims 9 - 13 further narrow the abstract idea of independent claim 8. Dependent claims 16 - 19 further narrow the abstract idea of independent claim 15. The claims 1-6, 8-13, and 15 -19 are not patent eligible.
Moreover, aside from the aforementioned additional elements, the remaining elements of dependent claims 2-6, 9-13, 16-19 do not transform the recited abstract idea into a patent eligible invention because these claims merely recite further limitations that provide no more than simply narrowing the recited abstract idea.
Since there are no limitations in these claims that transform the exception into a patent eligible application such that these claims amount to significantly more than the exception itself, claims 1-6, 8-13, and 15 -19 are rejected under 35 U.S.C. 101 as being directed to non-statutory subject matter.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Wikipedia definition of a tuple retrieved June 10, 2026.
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/THEA LABOGIN/Examiner, Art Unit 3624
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