DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . The amendment filed 01/07/2026 has been received and considered. Claim 22 is new. Claims 1, 3-8, 10-15, and 17-22 are presented for examination.
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 01/07/2026 has been entered.
Claim Objections
Claim 22, line 2 includes the typo “the resources the resources”. Examiner interprets as “the resources" for examination purposes.
Appropriate correction or clarification is required.
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 1, 3-8, 10-15, and 17-22 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea of without significantly more.
Independent claim 1, Step 1: a method (process = 2019 PEG Step 1 = yes).
Independent claim 1 Step 2A, Prong One: The claim recites:
analyzing, by the task simulation device, attributes of the tasks; generating, by the task simulation device, feature data regarding features of the tasks, wherein the features relate to the attributes of the tasks that can be varied… (mental concepts)
performing, by the task simulation device, a computational comparison of values of a plurality of the sets of factors (mathematical concepts)
generating, by the task simulation device, based on results of the computational comparison and result of the simulation, revised targets, wherein the revised targets relate to a revision of specific values for a third set of factors for the first time period…
identifying, by the task simulation device, from the simulation, a set of values for the features (mental concepts)
The independent claim is substantially drawn to mathematical concepts: mathematical relationships, formulas or equations, and calculations and mental processes: observations, evaluations, judgments, opinions; but for the recitation of generic computer components. Information and/or data also fall within the realm of abstract ideas because information and data are intangible. See Electric Power Group1 (Electric Power hereinafter): “Information… is an intangible”.
As to the limitations “generating, by the task simulation device, based on results of the computational comparison and result of the simulation, revised targets, wherein the revised targets relate to a revision of specific values for a third set of factors for the first time period”, they are substantially drawn to mental concepts. The limitations encompass a user simply creating data (data processing) in his/her mind. See for example in the Specification (underline emphasis added):
"[0018]… processor may generate revised targets… revised targets may relate to a revision of specific values for a third set of factors for the first time period… revised targets may include a revision to the values for any factor related to the performance of the tasks, including any or all factors in the first set of factors… the values for the revised targets may be percentage variations from the values of the initial goals".
If a claim limitation, under its broadest reasonable interpretation, covers abstract ideas, then it falls within groupings of abstract ideas (2019 PEG Step 2A, Prong One: Abstract Idea Grouping? = Yes).
Independent claim 1 Step 2A Prong two: The claim recites the additional elements computer-implemented and a task simulation device, they are interpreted as drawn to a generic computer.
As to the limitations “receiving, by a task simulation device, target data regarding initial targets, wherein the initial targets relate to specific values for a first set of factors regarding performance of tasks for a first time period, wherein the first set of factors are related to resources, wherein the resources include an amount of work performed by a first computing device and a second computing device communicating within a network, wherein the initial targets include a first amount of work being performed by the first computing device and the second computing device communicating within the network”, “receiving, by the task simulation device, from memory, task data regarding the performance of the tasks, wherein the task data is associated with values for a second set of factors over a second time period previous to the first time period, wherein the second set of factors are related to the resources”, and "monitoring usage of the resources by the first consumer during the leveraging of the metering capability"; they describe the concept of “mere data gathering”, which corresponds to the concepts identified as abstract ideas by the courts. Data gathering, including when limited to particular content does not change its character as information, is also within the realm of abstract ideas. As to the limitations "reporting the usage, at least one of the sets of values, and at least one of the sets of factors to the first consumer Electric Power.
As to the limitations "a user portal of a device application", they are recited as a GUI performing generic computer functions routinely used in computer applications.
As to the limitations "generating and running, by the task simulation device, a simulation of the performance of the tasks using the task data and the feature data", the limitations appear to be just “apply it” limitations, because the limitations invoke computers or other machinery merely as a tool to perform an existing process.
As to the limitations “performing, by the task simulation device, a first of the tasks during the first time period according to the identified set of values of values for the features, wherein the performing the first of the tasks during the first time period according to the identified set of values of values for the features includes: using a cloud system to leverage a metering capability to control the resources as a provider of a service for a first user account of a first consumer of the service, wherein the leveraging causes a second amount of work, that is 10% more than the first amount of work being performed by the first computing device and the second computing device communicating within the network during the second time period, to be performed during the first time period", the limitations appear to be just “apply it” limitations, because these claim limitations recite only the idea of a solution or outcome.
This judicial exception is not integrated into a practical application of the exception (2019 PEG Step 2A, Prong Two: Additional elements that integrate the Judicial exception/Abstract idea into a practical application? = NO).
Independent claim 1 Step 2B: As discussed with respect to Step 2A, the claim recites the additional elements computer-implemented and a task simulation device. They are recited at a high level of generality and are recited as performing generic computer functions routinely used in computer applications. Generic computer components recited as performing generic computer functions that are well-understood, routine and conventional activities amount to no more than implementing the abstract idea with a computerized system. Their collective functions merely provide conventional computer implementation. The use of a computer to implement the abstract idea of a mathematical or mental algorithm has not been held by the courts to be enough to qualify as “significantly more”. The implementation on a computing system is described in the specification (underline emphasis added):
'[0016]… processor may generate a simulation of the performance of the tasks using the task data and the feature data… [0027]… a task simulation device 108. The cooperative driving system 108 is configured to receive the target data 102 and task data 104. The task simulation device 108 includes revised targets 110 and a simulation 112. [0028] The task simulation device 108 analyzes attributes of the tasks and generates feature data regarding features of the task based on the analysis. The task simulation device 108 includes simulation 112 that is a simulation of the tasks created using the task data and the feature data… [0057] The computer system 401 may contain one or more general-purpose programmable central processing units (CPUs) 402A, 402B, 402C, and 402D… computer system 401 may contain multiple processors typical of a relatively large system… may alternatively be a single CPU system… [0061]… computer system 401 may be implemented as a desktop computer, portable computer, laptop or notebook computer, tablet computer, pocket computer, telephone, smartphone, network switches or routers, or any other appropriate type of electronic device‘.
As discussed with respect to Step 2A, claim 1 recites data gathering and displaying, these limitations are recited at a high level of generality; and therefore, remain insignificant extra-solution activity even upon reconsideration. As to the limitations "reporting the usage", see for example in the Specification (underline emphasis added):
"[0028]… The first value 116 and the fourth set of factors 118 are output to a user device (not shown) where they are utilized by the user to optimize performance of the tasks".
As discussed with respect to Step 2A, Prong two, the GUI limitations have been found by the courts as not adding an inventive component/concept to claims to render them patentable. A GUI is a well-known graphical modeling means, and it is well-understood, routine, and conventional in the art. A GUI is a well-known graphical modeling means, and it is well-understood, routine, and conventional in the art. See MPEP 2106.04(a)(2), 2106.05(a), 2106.05(f). The GUI is described in the specification:
"[0054]… User portal 346 provides access to the cloud computing environment for consumers and system administrators".
As discussed with respect to Step 2A, Prong two, limitations invoking computers or other machinery merely as a tool to perform an existing process are just “apply it” limitations – simply adding a general purpose computer or computer components after the fact to an abstract idea (e.g., a mathematical equation). See MPEP 2106.05(f)(2). These limitations amount to computer implementation of mental concepts. As to the limitations "generating and running… a simulation…" See for example in the Specification (underline emphasis added):
"[0016]… processor may generate a simulation of the performance of the tasks using the task data and the feature data… processor may identify each task in a set of tasks… processor may identify features of each task that can be varied during the performance of the task… computer simulation may include values for features (e.g., number of iterations for each model in the set of tasks) and values for factors (e.g., quantity, quality, resources, time) over the first time period… simulation may be able to identify the features of the tasks that may be optimized or compromised as the simulation obtains different permutations or combinations of values for features and values for factors… [0023]… processor may run the simulation“.
As discussed with respect to Step 2A, Prong two, limitations reciting only the idea of a solution or outcome are just “apply it” limitations, because they fail to recite details of how a solution to a problem is accomplished. See MPEP 2106.05(f)(1). These limitations are so broad that nothing is known about how the claimed "using a cloud system… to control the resources as a provider of a service” is performed. About these limitations, the specification merely reads (underline emphasis added):
"[0013]… initial targets may relate to specific values for a first set of factors regarding performance of tasks for a first time period… In some embodiments, the first set of factors may be key performance indicators for the performance of the tasks. For example, the key performance indicators may include factors such as the quantity of work done, the time taken to perform the work, the quality of the work, or resources utilized to perform the work (e.g., the tasks). In some embodiments, the key performance indicators may be specific values or specific target values for a first set of factors related to quantity, time, quality, or resources (e.g., perform 10% more work each year, improve the accuracy of work by 5% in a year, reduce computing time by 10% during the year, etc.)…
[0032] Cloud computing is a model of service delivery… This cloud model may include at least five characteristics…
[0033] Characteristics are as follows: …
[0038] Measured service: cloud systems automatically control and optimize resource use by leveraging a metering capability at some level of abstraction appropriate to the type of service (e.g., storage, processing, bandwidth, and active user accounts). Resource usage can be monitored, controlled, and reported, providing transparency for both the provider and consumer of the utilized service".
Thus, taken alone the individual additional elements do not amount to significantly more than the above-identified judicial exception (the abstract idea). Looking at the additional elements as an ordered combination adds nothing that is not already present when looking at the additional elements taken individually. There is no indication that their combination improves the functioning of a computer itself or improves any other technology (underline emphasis added). Therefore, the claim does not amount to significantly more than the abstract idea itself (2019 PEG Step 2B: NO).
Claims 8 and 15 recite substantially the same elements as claim 1 and are rejected for the same reasons above. Further, the additional elements of these claims are rejected below:
Independent claims 8 and 15, Prong Two and Step 2B: The claims recite the additional elements a physical memory, a first computing device, a second computing device, a hardware processor in communication with the physical memory, the first computing device and the second computing device, and a computer readable storage medium, they are interpreted as drawn to a generic computer. (See Independent claim 1, Step 2B above).
Dependent claims Step 2A, Prong One: Dependent claims are substantially drawn to abstract ideas as their independent claims: identifying and selecting values; but for the recitation of generic computer components. (See Independent claim 1, Step 2A, Prong One above).
As to the limitations "3/10/17… for the first consumer to optimize performance of the tasks over a subsequent time period", user choices are mental in nature.
If a claim limitation, under its broadest reasonable interpretation, covers abstract ideas, then it falls within groupings of abstract ideas (2019 PEG Step 2A, Prong One: Abstract Idea Grouping? = Yes).
Dependent claims Step 2A Prong two: As to the limitations "3/10/17… outputting, by the task simulation device/(hardware) processor, the first value and the values for the fourth set of factors that result from performance of the tasks over the first time period using the first value, wherein the performing the first of the tasks during the first time period according to the identified set of values of values for the features further includes reporting the identified set of values and the fourth set of factors to Electric Power.
As to the limitations "3/10/17… the user portal of the device application", they are recited as a GUI performing generic computer functions routinely used in computer applications.
As to the limitations “4/11/18… wherein the using the cloud system to leverage the metering capability to control the resources comprises executing, on an operating system, a program stored in the memory, wherein the program includes a hypervisor that controls the resources", the limitations appear to be just “apply it” limitations, because these claim limitations recite only the idea of a solution or outcome.
As to the limitations "7/14/21… wherein the first computing device is a computer and the second computing device is an automobile computer system" and "22… wherein the first consumer does not control the leveraging of the metering capability to control the resources the resources", they are interpreted as drawn to generic computer functions routinely used in computer applications and merely indicating a field of use or technological environment in which to apply a judicial exception.
This judicial exception is not integrated into a practical application of the exception (2019 PEG Step 2A, Prong Two: Additional elements that integrate the Judicial exception/Abstract idea into a practical application? = NO).
Dependent claims Step 2B: As discussed with respect to Step 2A, in the dependent claims no additional elements are provided that are sufficient to amount to significantly more than the judicial exception when considered individually and in combination and therefore the claims do not provide an inventive concept in Step 2B.
As discussed with respect to Step 2A, claims reciting displaying are recited at a high level of generality; and therefore, remain insignificant extra-solution activity even upon reconsideration.
As discussed with respect to Step 2A, Prong two, the GUI limitations have been found by the courts as not adding an inventive component/concept to claims to render them patentable. (See Independent claim 1, Step 2B above).
As discussed with respect to Step 2A, Prong two, limitations reciting only the idea of a solution or outcome are just “apply it” limitations, because they fail to recite details of how a solution to a problem is accomplished. See MPEP 2106.05(f)(1). These limitations are so broad that nothing is known about how the claimed "hypervisor that controls the resources” is performed. Examiner notes that both the claimed invention and the specification are mute about how the hypervisor controls resources. About these limitations, the specification merely reads (underline emphasis added):
"[0059] One or more programs/utilities 428, each having at least one set of program modules 430 may be stored in memory 404. The programs/utilities 428 may include a hypervisor (also referred to as a virtual machine monitor), one or more operating systems, one or more application programs, other program modules, and program data".
As discussed with respect to Step 2A, claims recited as performing generic computer functions routinely used in computer applications, their collective functions merely provide conventional computer implementation. (See Independent claim 1, Step 2B above). As to the limitations "7/14/21… wherein the first computing device is a computer and the second computing device is an automobile computer system", the specification reads (underline emphasis added):
"[0032] Cloud computing is a model of service delivery for enabling convenient, on-demand network access to a shared pool of configurable computing resources (e.g., networks, network bandwidth, servers, processing, memory, storage, applications, virtual machines, and services) that can be rapidly provisioned and released with minimal management effort or interaction with a provider of the service…
[0049] FIG. 3A, illustrated is a cloud computing environment 310 is depicted. As shown, cloud computing environment 310 includes one or more cloud computing nodes 300 with which local computing devices used by cloud consumers, such as, for example, personal digital assistant (PDA) or cellular telephone 300A, desktop computer 300B, laptop computer 300C, and/or automobile computer system 300N may communicate".
As to the limitations, "the second computing device is an automobile computer system", they amount to merely indicating a field of use or technological environment in which to apply a judicial exception. See MPEP 2106.05(b) Particular Machine, and MPEP 2106.05(h) Field of Use and Technological Environment [R-10.2019].
As to the limitations "22… wherein the first consumer does not control the leveraging of the metering capability to control the resources the resources", the specification reads (underline emphasis added):
'[0040] Software as a Service (SaaS): the capability provided to the consumer is to use the provider's applications running on a cloud infrastructure. The applications are accessible from various client devices through a thin client interface such as a web browser (e.g., web-based e-mail). The consumer does not manage or control the underlying cloud infrastructure including network, servers, operating systems, storage, or even individual application capabilities, with the possible exception of limited user-specific application configuration settings.
[0041] Platform as a Service (PaaS): the capability provided to the consumer is to deploy onto the cloud infrastructure consumer-created or acquired applications created using programming languages and tools supported by the provider. The consumer does not manage or control the underlying cloud infrastructure including networks, servers, operating systems, or storage, but has control over the deployed applications and possibly application hosting environment configurations.
[0042] Infrastructure as a Service (IaaS): the capability provided to the consumer is to provision processing, storage, networks, and other fundamental computing resources where the consumer is able to deploy and run arbitrary software, which can include operating systems and applications. The consumer does not manage or control the underlying cloud infrastructure but has control over operating systems, storage, deployed applications, and possibly limited control of select networking components (e.g., host firewalls)'.
Therefore, the claims do not amount to significantly more than the abstract idea itself (2019 PEG Step 2B: NO).
Allowable Subject Matter
Claims 1, 3-8, 10-15, and 17-22 are allowable over prior art of record. They will be allowed once all outstanding rejections/objections are traversed.
The following is a statement of reasons for the indication of allowable subject matter:
No reference taken either alone or in combination and with the prior art of record discloses claims 1, 8, and 15,
"… initial targets relate to specific values for a first set of factors regarding performance of tasks for a first time period… related to resources, wherein the resources include an amount of work performed by a first computing device and a second computing device communicating within a network, wherein the initial targets include a first amount of work being performed by the first computing device and the second computing device communicating within the network…
analyzing… attributes of the tasks…
a simulation of the performance of the tasks using the task data and the feature data… wherein the revised targets relate to a revision of specific values… for the first time period;
identifying… from the simulation… values for the features,
performing… a first of the tasks during the first time period according to the identified… values…
using a cloud system to leverage a metering capability to control the resources as a provider of a service for a first user account of a first consumer of the service, wherein the leveraging causes a second amount of work, that is 10% more than the first amount of work being performed by the first computing device and the second computing device communicating within the network during the second time period, to be performed during the first time period…",
in combination with the remaining steps, elements, and features of the claimed invention. Also, there is no motivation to combine none of these references to meet these limitations. It is for these reasons that It is for these reasons that Applicant's invention defines over the prior art of record.
As allowable subject matter has been indicated, applicant's reply must either comply with all formal requirements or specifically traverse each requirement not complied with. See 37 CFR 1.111(b) and MPEP § 707.07(a).
Response to Arguments
Regarding the rejections under 101, Applicant's arguments have been considered, but they are not persuasive. Applicant argues, (see page 11, 2nd paragraph to page 13, 1st paragraph):
‘… claim 1 has been amended to specify meaningful limitations by providing transparency for both the provider and first consumer of the service now recited in claim 1. As discussed during interviews conducted between Attorney Derrick Breska (Reg. No. 74,266) and Examiner Ochoa on Aug. 8, 2025 and Nov. 25, 2025 while reviewing paragraph 0038 of the specification of the present application, this transparency is not merely a claimed afterthought of the claim, but instead specifically provided by operations performed during the performance of the first of the tasks during the first time period according to the identified set of values of values for the features. More specifically, these operations include monitoring and reporting usage to the first consumer and provider via a user portal of a device application. Applicant notes that limitations added to dependent claim 3 further detail that this reporting (of values and a set of factors) to a user portal of the device application enables the first consumer to optimize performance of the tasks over a subsequent time period. In other words, without affirmatively reporting monitoring results to hardware infrastructure that the customer has access to and uses (a user portal of the device application), the first consumer would "remain in the dark" with respect to the usage of the resources by the first consumer during the leveraging of the metering capability, and therefore would not be able optimize performance of the tasks over the subsequent time’
As pointed out by Applicant, the specification reads (underline emphasis added):
'[0038] Measured service: cloud systems automatically control and optimize resource use by leveraging a metering capability at some level of abstraction appropriate to the type of service (e.g., storage, processing, bandwidth, and active user accounts). Resource usage can be monitored, controlled, and reported, providing transparency for both the provider and consumer of the utilized service…
[0054]… User portal 346 provides access to the cloud computing environment for consumers and system administrators…
[0056] FIG. 4, illustrated is a high-level block diagram of an example computer system 401 that may be used in implementing one or more of the methods, tools, and modules, and any related functions, described herein (e.g., using one or more processor circuits or computer processors of the computer)… In some embodiments, the major components of the computer system 401 may comprise… a terminal interface 412… an I/O (Input/Output) device interface 414, and a network interface 418, all of which may be communicatively coupled, directly or indirectly, for inter-component communication via a memory bus 403, an I/O bus 408, and an I/O bus interface unit 410'
The MPEP reads (underline emphasis added):
'2106.04(d)(1) Evaluating Improvements in the Functioning of a Computer, or an Improvement to Any Other Technology or Technical Field in Step 2A Prong Two [R-10.2019]... the "improvements" analysis in Step 2A determines whether the claim pertains to an improvement to the functioning of a computer or to another technology… invention may integrate the judicial exception into a practical application by demonstrating that it improves the relevant existing technology although it may not be an improvement over well-understood, routine, conventional activity… the word "improvements" in the context of this consideration is limited to improvements to the functioning of a computer or any other technology/technical field, whether in Step 2A Prong Two or in Step 2B...'.
Examiner's response: Applicant's argument is not persuasive, because the claims may provide an improved abstract idea but do not provide limitations such that an improvement to the functioning of a computer itself or to any other technology is realized. An improved abstract idea is an abstract idea. An improved abstract idea is a species of the genus abstract idea. As to the argued 'reporting (of values and a set of factors)', see supra Specification paragraph [0038], information and/or data also fall within the realm of abstract ideas as information and data are intangible. See Electric Power: “Information… is an intangible”. This idea is similar to the basic concept of manipulating information using mathematical relationships, e.g., converting numerical representation in Gottschalk v. Benson2 (underline emphasis added) (holding that an algorithm that merely transforms data from one form to another is not patent-eligible). As to the limitations "3/10/17… for the first consumer to optimize performance of the tasks over a subsequent time period", user choices are mental in nature. Once again, an improved abstract idea is an abstract idea. An improved abstract idea is a species of the genus abstract idea.
Applicant further argues, (see page 13, 2nd paragraph to page 14, 3rd paragraph):
‘B. Claim 1 Sets Forth A Particular Approach To Achieving An Improvement/Solution…
… the claims do not simply recite the notion of increasing work and optimizing performance. Instead, claim 1 and claims depending therefrom set forth a specific technique to achieve increased work and optimized performance. For instance, claim 1 and claims depending therefrom each require "monitoring . . . and reporting . . . to provide transparency to both the provider and the first consumer of the service." These limitations impose meaningful limits on the scope of claim 1 and claims depending therefrom. Rather than simply reciting the notion of the resulting benefit (increased work and optimization), Applicant claims a specific operative technique for doing so. This technique does not preclude other attempts to achieve the benefits. Instead, specific the monitoring and reporting must be employed according to claims 1 and 3.
The rejection has alleged that otherwise reciting the 10% increase in work amounts to merely reciting "limitations [that] appear to be just 'apply it' limitations, because these claim limitations recite only the idea of a solution or outcome." See FOA at 4. Accordingly, applicant has identified teachings within the specification of the present application that, when performed set forth the previously mentioned particular solution. Accordingly, Applicant respectfully submits claim 1 and claims depending therefrom include meaningful limits on the alleged judicial exception’
MPEP 2106.05 reads (underline emphasis added):
'(f) Mere Instructions To Apply An Exception [R-10.2019]… (3) The particularity or generality of the application of the judicial exception. A claim having broad applicability across many fields of endeavor may not provide meaningful limitations that integrate a judicial exception into a practical application or amount to significantly more. For instance, a claim that generically recites an effect of the judicial exception or claims every mode of accomplishing that effect, amounts to a claim that is merely adding the words "apply it" to the judicial exception'
Examiner's response: Applicant's argument is not persuasive, because the limitations "using a cloud system to leverage a metering capability to control the resources as a provider of a service for a first user account of a first consumer of the service" recite only the idea of a solution or outcome, i.e. these claim limitations fail to recite details of how a solution to a problem is accomplished. These limitations are so broad that nothing is known about how the claimed "using a cloud system… to control the resources as a provider of a service” is performed. (See MPEP 2106.05 supra and Independent claim 1, Step 2B above). Applicant's arguments do not elaborate how the claimed invention’s additional elements/limitations considered both individually and in combination integrate a judicial exception into a practical application in Step 2A Prong Two or amount to significantly more in Step 2B.
Therefore, the rejections are maintained.
Conclusion
Examiner would like to point out that any reference to specific figures, columns and lines should not be considered limiting in any way, the entire reference is considered to provide disclosure relating to the claimed invention.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JUAN CARLOS OCHOA whose telephone number is (571)272-2625. The examiner can normally be reached Mondays, Tuesdays, Thursdays, and Fridays 9:30AM - 7:00 PM.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Renee Chavez can be reached on 571-270-1104. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JUAN C OCHOA/Primary Examiner, Art Unit 2186
1 Electric Power Group, LLC v. Alstom S.A., 119 USPQ2d 1739 Fed. Cir. 2016
2 Gottschalk v. Benson, 409 U.S. 63, 67 (1972)