DETAILED ACTION
Statement of claims
The present amended application include :
Claims 1, 7-8 and 14-15 were amended.
Claims 1-20 remain pending in the application. Claims 1-20 are being considered on the merits.
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 .
Response to Arguments
Patent Eligible Subject Matter Under 35 U.S.C. § 101
Applicant argues (pages 10-26 ) that:
“ the claim limitation does not recite a mental process because the claim limitation cannot practically be performed in the human mind”, “The Office Action's analysis under Step 2A Prong Two improperly fails to consider the USPTO's exemplary considerations that are indicative that elements and/or a combination of elements integrates any alleged judicial exception into a practical application based on the elements reflecting an improvement to the functioning of a computer, or an improvement to another technology of technical field.” .
In response Examiner respectfully disagree and submit that:
Claims 1 , 8 and 15 taken alone, the additional elements do not amount to significantly more the above-identified judicial exception (the abstract idea). Looking at the limitations as an ordered combination adds nothing that is not already present when looking at the elements taken individually. There is no indication that the combination of elements improves the functionality of the computer itself. Accordingly, the additional elements merely recite the generic computer or computer components for carrying out or applying the abstract idea, do not amount to significantly more than the abstract idea and cannot provide an inventive concept.
Therefore, In view of the amendment and applicant’s remarks, 101 rejection is not withdrawn. Applicant’s argument regarding the §101 is not found to be persuasive. Accordingly, the 101 rejection has been maintained.
Claims 1, 8 and 15 also fails both Step 2A prong 2, thus the claims are directed to the judicial exception as it has not been integrated into practical application, and fails Step 2B as not amounting to significantly more Therefore, Claims 1, 6 and 15 do not recite patent eligible subject matter under 35 U.S.C. § 101.
Therefore, claims 1-20 appear to be patent ineligible under 35 USC 101.
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 1-20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more.
Under Step 2A, Prong 1, Claim 1 recites A computer-implemented method comprising: “populating and maintaining a corpus of datacenters, wherein maintaining the corpus of datacenters further comprises detecting current and previous computing capabilities and performance of each datacenter in the corpus”, “generating a user profile for each type of user based on the machine-learned user profile data”, “wherein detecting the user experience based on the machine-learned user experience data further comprises detecting the one or more types of computing tasks being executed by the user on the cloud-based solution by the specific type of user and the performance of the one or more datacenters during execution of the one or more types of computing tasks” . The limitations of “populating and maintaining”, “generating” is a process that, under their broadest reasonable interpretation, covers performance of the limitation in the mind, but for the recitation of generic computer components. That is, other than reciting “corpus of datacenters”, “datacenter in the corpus” , “user profile based on the machine-learned user profile data “, “user experience”, “machine-learned user experience data”,” types of computing tasks being executed”, “ user on the cloud-based solution”, “specific type of user”, “ performance of the one or more datacenters during execution of the one or more types of computing tasks”, nothing in the claim element precludes the step from practically being performed in a human mind or with the aid of pen and paper. If a claim limitation, under its broadest reasonable interpretation, covers performance of the limitation in the mind, then it falls within the “Mental Processes” grouping of abstract ideas (concepts performed in the human mind including an observation, evaluation, judgment, and opinion).
Under Prong 2, The judicial exception is not integrated into a practical application.
The additional elements “identifying different types of users using the cloud-based solution”, “identifying different types of users using the cloud-based solution”,” wherein identifying the different types of users …. further comprises automatically identifying a specific type of user and one or more types of computing tasks executed by the specific type of user, and associating the one or more types of computing tasks with the specific type of user and with a time in which the specific type of user executes the one or more types of computing tasks”, “using a machine-learning algorithm to detect a user experience with the cloud- based solution on one or more datacenters from the corpus of datacenters for each type of user based on the machine-learned user experience data, wherein detecting the user experience based on the machine-learned user experience data further comprises detecting the one or more types of computing tasks being executed by the user on the cloud-based solution by the specific type of user and the performance of the one or more datacenters during execution of the one or more types of computing tasks”, which “… identifying …”, “associating…” , “using…”, “detecting…”, amounts to data gathering and display which is considered to be insignificant extra solution activity (MPEP 2106.05(g).
The additional element ““for automatically migrating a cloud-based solution onto a datacenter based on machine-learned user profile data and user experience data.”, “ “using the machine-learning algorithm to correlate, for the specific type of user and for the one or more types of computing tasks associated with the specific type of user, the machine-learned user profile data with the machine-learned user experience data and the current and previous computing capabilities and performance of each datacenter in the corpus”, “automatically migrating the cloud-based solution onto the datacenter from the corpus of datacenters for the specific type of user based on the correlation between the machine-learned user profile data, the machine-learned user experience data, and the current and previous computing capabilities and performance of the datacenter.” are insignificant extra-solution activity (e.g. selecting a particular data source or type of data to be manipulated, insignificant application) which “automatically migrating … “ and “using the machine-learning algorithm to correlate …” are insignificant extra solution activities (MPEP 2106.05(g).
The additional element of “ computer-implemented”, “ cloud-based solution”, “ datacenter”, “user profile”, “machine-learned user profile data”, “user experience data”, “user experience”, “corpus of datacenters” , “types of computing tasks being executed by the user”, “the specific type of user and the performance of the one or more datacenters during execution of the one or more types of computing tasks”, “computing capabilities and performance of each datacenter in the corpus”, “types of users using the cloud-based solution” , “specific type of user and one or more types of computing tasks executed by the specific type of user”, “types of computing tasks with the specific type of user and with a time in which the specific type of user executes the one or more types of computing tasks” are recited at a high-level of generality (i.e., as a generic processor performing a generic computer function) such that it amounts no more than mere instructions to apply the exception using a generic computer component. Accordingly, these additional elements do not integrate the abstract idea into a practical application because they do not impose any meaningful limits on practicing the abstract idea. (see MPEP 2106.05(f)). The claim is directed to an abstract idea.
Step 2B:
The claim does not include additional elements that are sufficient to amount significantly more than the judicial exception. The limitations automatically migrating … “ and “using the machine-learning algorithm to correlate …” are Well-Understood, Routine and Conventional. See at least MPEP § 2106.05(d)(ll) “The courts have recognized the following computer functions as well-understood, routine, and conventional functions when they are claimed in a merely generic manner (e.g., at a high level of generality) or as insignificant extra-solution activity. i. Receiving or transmitting data over a network, e.g., using the Internet to gather data”. That is, in the instant claims these limitations merely receive data which is Well-Understood, Routine and Conventional.
Therefore, claim 1 as a whole does not amount to significantly more than the judicial exception. Consequently, claim 1 is not eligible.
Further claim 2, The additional element “automatically and preemptively selecting a datacenter and migrating the cloud-based solution onto the datacenter for the specific type of user”, amounts to merely generally linking the use of the judicial exception to a particular technological environment or field or use, and “ as result of said correlation is merely applying the judicial exception, is merely applying the judicial exception, do not integrate the abstract idea into a practical application, therefore, does not amount to significantly more, hence, cannot provide an inventive concept.
Further claim 3, The additional element “automatically migrating the cloud-based solution from a first datacenter to a second datacenter during real-time use of the cloud-based solution to provide an optimal user experience for the specific type of user.”, amounts to merely generally linking the use of the judicial exception to a particular technological environment or field or use, and “ as result of said correlation is merely applying the judicial exception, is merely applying the judicial exception, do not integrate the abstract idea into a practical application, therefore, does not amount to significantly more, hence, cannot provide an inventive concept.
Further, claim 4 recite additional elements of “wherein the machine-learned user profile data is selected from a group comprising at least one of user role data, user location data, datacenter preferences, typical computing activities performed data, typical times of performing the computing activities data, scheduled computing activities data, and user computing preferences..”, is insignificant extra-solution activity (e.g. selecting a particular data source or type of data to be manipulated, insignificant application), which do not integrate a judicial exception into practical application. See MPEP 2106.05(d). Thus, do not integrate a judicial exception into practical application, do not amount to significantly more than the abstract idea, thus cannot provide an inventive concept.
Further, claim 5 recite additional elements of, “wherein the machine-learned user experience data is selected from a group comprising at least one of detected performance of the cloud-based solution, detected repeated clicks by the specific type of user on the cloud-based solution, detected response times or an elapsed time for performing specific computing activities, latency issues, and buffering or lagging issues.”, is insignificant extra-solution activity (e.g. selecting a particular data source or type of data to be manipulated, insignificant application), which do not integrate a judicial exception into practical application. See MPEP 2106.05(d). Thus, do not integrate a judicial exception into practical application, do not amount to significantly more than the abstract idea, thus cannot provide an inventive concept.
Further, claim 6 recite additional elements of “determining an overall score for the datacenter by scoring and summing different parts of data associated with the machine-learned user profile data and the machine-learned user experience data, and weighing one or more scores for the different parts of data differently”, is insignificant extra-solution activity (e.g. selecting a particular data source or type of data to be manipulated, insignificant application), which do not integrate a judicial exception into practical application. See MPEP 2106.05(d). Thus, do not integrate a judicial exception into practical application, do not amount to significantly more than the abstract idea, thus cannot provide an inventive concept.
Further, claim 7 recite additional elements of “receiving feedback to adjust the scores and weight of the different parts of data”, is insignificant extra-solution activity (e.g. selecting a particular data source or type of data to be manipulated, insignificant application), which do not integrate a judicial exception into practical application. See MPEP 2106.05(d). Thus, do not integrate a judicial exception into practical application, do not amount to significantly more than the abstract idea, thus cannot provide an inventive concept.
As to claims 8-14,
Similar analysis as claim 1 is applied to claim 8 . Further Claim 8: The judicial exception is not integrated into a practical application. In particular, the claim recites the following additional elements “ A computer system” , “ processors”, “ computer-readable memories”, “computer-readable tangible storage devices”, “program instructions stored”, “ storage devices”, “execution” which are merely recitations of generic computing components (see MPEP §2106.05(f)) which does not integrate a judicial exception into practical application. These elements represent no more than mere instructions to apply the judicial exception on a computer. The A computer system” , “ processors”, “ computer-readable memories”, “computer-readable tangible storage devices”, “program instructions stored”, “ storage devices”, “execution” are all 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). This does not integrate into a practical application, NOR does it provide significantly more.
Similar analysis as claims 9-14 is applied to claims 2-7 above.
As to claims 15-20,
Similar analysis as claim 1 is applied to claim 15 . Further Claim 15: The judicial exception is not integrated into a practical application. In particular, the claim recites the following additional elements “A computer program product” , “tangible computer-readable storage devices”, “program instructions stored on at least one of the one or more tangible computer-readable storage devices, the program instructions executable by a processor,”, which are merely recitations of generic computing components (see MPEP §2106.05(f)) which does not integrate a judicial exception into practical application. These elements represent no more than mere instructions to apply the judicial exception on a computer. The “A computer program product” , “tangible computer-readable storage devices”, “program instructions stored on at least one of the one or more tangible computer-readable storage devices, the program instructions executable by a processor” are all 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). This does not integrate into a practical application, NOR does it provide significantly more.
Similar analysis as claims 16-20 is applied to claims 1-6 above.
For at least these reasons, claims 1-20 are not patent eligible.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ABDOU K SEYE whose telephone number is (571)270-1062. The examiner can normally be reached M-F 9-5:30.
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/ABDOU K SEYE/Examiner, Art Unit 2198
/PIERRE VITAL/Supervisory Patent Examiner, Art Unit 2198