DETAILED ACTION
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 .
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 9/18/2025 has been entered.
Response to Amendment
This communication is in response to the RCE filed on 9/18/2025. Claims 1-25 remain pending in the application and as such are being considered on the merits.
Response to Arguments
Applicant's arguments filed 9/18/2025 have been fully considered but they are not persuasive.
Regarding the rejections under 35 U.S.C. 101, the Applicant argues that the actions being performed by the “execution platform,” such as the multiple determining, executing, monitoring, and performing actions of the independent claims, cannot reasonably be performed by the human mind.
The Examiner respectfully disagrees. The Examiner would like to draw the Applicant’s attention towards MPEP 2106.04(a)(2)(III)(C) in which it is explained that mental processes that require generic computing components may still recite mental processes (please also refer to Symantec Corp., 838 F.3d at 1316-18, 120 USPQ2d at 1360, as well as Example 37 in conjunction with the 2019 PEG). The Examiner maintains that the mental processes of “determining, executing, monitoring, and performing” could reasonably be performed via an operator of the execution platform.
The Applicant further argues that the execution platform is described as “a physical computing system or a virtualization platform including a virtual machine on which the executable program is to be run” thereby stating that the term does not include the human mind. The Applicant continues, stating that the human mind cannot practically execute an executable program as required by the independent claims, or determine resource limits have been reached or exceeded, and perform one or more actions responsive to this determining.
The Examiner respectfully disagrees. In light of MPEP 2106.04(a)(2)(III)(C), it is reasonable for the examiner to assume that an operator using a generic computing device, such as what is described for an “execution platform,” could execute programs and monitor resource usage of said programs. The Examiner is not arguing that the human mind is executing the program by itself, but rather that the step of executing a program could be done through an operator at a computer. Therefore, the BRI of the executing step can be merely a mental process being performed through a generic computing apparatus.
The Applicant argues that a technical solution is being provided by the current claim language through “performing monitoring of resource usage of the executable program using resource limits that are based on the attributes of the inputs rather than hard resource limits.”
The Examiner respectfully disagrees. The use of resource limits is well-understood, routine, and conventional and does not provide more than the judicial exception. The Examiner contends that the BRI of determining a computer’s resource limits can be understood as at least applying a mental process to a computer performing repetitive calculations (See MPEP 2106.05(d)(II)(ii) and Flook, 437 U.S. at 594, 198 USPQ2d at 199 (recomputing or readjusting alarm limit values); Bancorp Services v. Sun Life, 687 F.3d 1266, 1278, 103 USPQ2d 1425, 1433 (Fed. Cir. 2012) ("The computer required by some of Bancorp’s claims is employed only for its most basic function, the performance of repetitive calculations, and as such does not impose meaningful limits on the scope of those claims.") and therefore do not integrate the judicial exception into a practical application. Further, the Examiner argues that the determination of the resource limits is merely insignificant extra-solution activity within the current claim language (please see MPEP 2106.05(g) and Parker v. Flook, 437 U.S. 584, 588-89, 198 USPQ 193, 196 (1978). In Flook, the Court reasoned that "[t]he notion that post-solution activity, no matter how conventional or obvious in itself, can transform an unpatentable principle into a patentable process exalts form over substance. A competent draftsman could attach some form of post-solution activity to almost any mathematical formula". 437 U.S. at 590; 198 USPQ at 197; Id. (holding that step of adjusting an alarm limit variable to a figure computed according to a mathematical formula was "post-solution activity"). Based on the current claim language, the basis of which the execution platform is determining resource limits is to lead to generic execution of a program/application. The Examiner maintains that due to this reason, there is no inherent improvement through the determination of the resource limit, rather the BRI includes just mere instructions to apply an exception (See MPEP 2106.05(f)).
Due to the reasons above, the Examiner contends that the rejections under 35 U.S.C. 101 will be maintained. For further explanation please refer to the 101 rejection section below.
Regarding the rejections under 35 U.S.C. 103, the Applicant argues that the current amendments to the independent claim language is not taught/disclosed/suggested by the Nguyen reference.
The Examiner believes these arguments were persuasive. However, upon further search and consideration, a new ground of rejection has been applied and therefore the arguments are moot.
Regarding claim 5, the Applicant argues that the size of a memtable relating to performance metrics is not analogous to a size attribute of one or more inputs.
The Examiner respectfully disagrees. The examiner is entitled to give claim limitations their broadest reasonable interpretation in light of the specification (See MPEP 2111 [R-1]). The current claim language of claim 5 refers to a generic attribute referring to the size of an input. It is believed by the Examiner that the recitation of a metric collector collecting performance metrics for the platform on which an application is executing, of which can include the size of a memtable, reads upon the BRI of a generic attribute relating to the size of an input.
Regarding claim 7, the Applicant argues that Nguyen does not teach anything about one or more attributes of one or more inputs on which an executable program/application is executed.
The Examiner respectfully disagrees. In paragraph 0036 of Nguyen, it is explained that “the application performance framework 130, which is also referred to as the framework 130, can perform benchmarking processes to measure the performance of various types of applications 110 running in different types of runtime environments, including in various types of cloud platforms.” Further, in paragraph 0099 it states that “the benchmark setup area 510 enables a user to enter/select various benchmarking settings, such as the directory in which files related to the benchmarking process can be found and stored, the minimum heap size, the maximum heap size, the types of workloads to be simulated… the scenarios to be simulated… the number of runs of the benchmarking process, and any files to upload for the benchmarking process.” Since the benchmark setup area is able to simulate various types of workloads/applications which may be selected by the user, the Examiner contends that this teaches the BRI of an attribute being a type of the one or more inputs.
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 1-25 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
In adhering to the 2019 Revised Patent Subject Matter Eligibility Guidance (2019 PEG), Step 1 is directed to determining whether or not the claims fall within a statutory class. Herein, the claims fall within the statutory class of process, machine, or manufacture. Hence, the claims 1-25 qualify as potentially eligible subject matter under 35 U.S.C. 101.
With Step 1 being directed toward a statutory category, the 2019 PEG flowchart is directed to Step 2. Step 2 is a two-prong inquiry. Prong one considers whether the claim recites a judicial exception (an abstract idea enumerated in the 2019 PEG, a law of nature, or a natural phenomenon). In this case, the limitations of independent claims 1, 13, and 14 recite the mental processes of multiple determining, executing, monitoring, and performing which fit into the category of an observation, evaluation, judgment, or opinion (See MPEP 2106.04(a)(2)(III)).
Since the claims recite an abstract idea, analysis flows to prong two. Prong two considers whether the judicial exception is integrated into a practical application. The claims do not integrate any recited abstract ideas into a practical application. The term “execution platform” is merely a generic computing apparatus (Please refer to MPEP 2106.07(b)). Further, when the mental processes take place, such as “prior to executing…” and “after determining the one or more resource limits…” is merely reciting the words “apply it” or an equivalent (See MPEP 2106.05(f)) and does not amount to significantly more than the judicial exceptions.
Since the claims are directed to the determined judicial exception, the analysis flows to Step 2B. Therein, the elements and combination of elements are examined in the claims to determine whether the claims as a whole amount to significantly more than the judicial exception. In this case, the claims recite the additional elements of “receiving, …, a request to execute an executable program…” However, this additional element relates to the well-understood, routine, and conventional activity of receiving or transmitting data over a network and does not amount to significantly more than the judicial exception (See MPEP 2106.05(d)(II)(i) and using the Internet to gather data, Symantec, 838 F.3d at 1321, 120 USPQ2d at 1362 (utilizing an intermediary computer to forward information); TLI Communications LLC v. AV Auto. LLC, 823 F.3d 607, 610, 118 USPQ2d 1744, 1745 (Fed. Cir. 2016) (using a telephone for image transmission); OIP Techs., Inc., v. Amazon.com, Inc., 788 F.3d 1359, 1363, 115 USPQ2d 1090, 1093 (Fed. Cir. 2015) (sending messages over a network); buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355, 112 USPQ2d 1093, 1096 (Fed. Cir. 2014) (computer receives and sends information over a network); but see DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1258, 113 USPQ2d 1097, 1106 (Fed. Cir. 2014) ("Unlike the claims in Ultramercial, the claims at issue here specify how interactions with the Internet are manipulated to yield a desired result‐‐a result that overrides the routine and conventional sequence of events ordinarily triggered by the click of a hyperlink." (Emphasis added))). Please also refer to MPEP 2106.04(a)(2), 2106.05(d)(II)(i), and Example 37 of the 2019 PEG. Further, the act of “performing, by the execution platform, one or more actions…” may also be understood as the well understood, routine, and conventional activity of receiving or transmitting data over a network as one or more actions includes sending notifications (See MPEP 2106.05(d)(II)). Since no recited additional elements amount to significantly more than the judicial exception, the claims are not eligible subject matter under 35 U.S.C. 101.
Dependent claims 2-12, and 15-25 do not cure the deficiencies of the independent claims and are rejected. For example, claims 2-7 and 15-20 all recite generic computing apparatus and types thereof being explained. The Examiner notes that the type of executable programs, execution platform, and input are merely recited in a generic format and do not provide significantly more than the judicial exception (See MPEP 2106.05(f)).
Further, claims 8, 9, 21, and 22, all recite the abstract idea of a mental process. In these claims, settings are being determined for what needs to be monitored, as previously mentioned in the independent claims, the determination of this is a mental process. Following the limitations, the act of scaling as recited in these claims is based on the mental analyzation of the data, and therefore can be done by way of a human, as such it does not provide significantly more than the judicial exception of a mental process.
As for claims 10, 11, 23, and 24, these claims recite the abstract idea of mathematical concepts (See MPEP 2106.04(a)(2)). These claims recite creating resource limits through scaling factors, these scaling factors represent mathematical calculations as applied to generic computing apparatuses (See MPEP 2106.04(a)(2)(C)).
For claims 12 and 25, the BRI of these claims are merely reciting or adding the words “apply it” to the judicial exception (See MPEP 2106.05(f)) as well as merely receiving or transmitting data over a network through the use of notifications (See MPEP 2106.05(d)(II)(i)).
Since no combination of the independent and dependent claims amount to significantly more than the judicial exception, they are rejected under 35 U.S.C. 101.
Claim Rejections - 35 USC § 103
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 (i.e., changing from AIA to pre-AIA ) 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.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim(s) 1, 2, 4, 5, 7-8, 12-15, 17, 18, 20-21, and 25 is/are rejected under 35 U.S.C. 103 as being unpatentable over Nguyen et al. (US 20220413992) and Wang Baldonado et al. (US 20020078117).
Regarding claims 1, 13, and 14, Nguyen teaches: A computing system / non-transitory computer readable medium / A computer-implemented method, comprising: receiving, by an execution platform, a request to execute an executable program on one or more inputs (framework receiving benchmark execution scripts relating to applications par. 0036 – 0045); determining, by the execution platform, one or more attributes of the one or more inputs (benchmark specifications that include parameters related to the tests performed on the application par. 0039; see also par. 0036 – 0045); and while executing the executable program: monitoring, by the execution platform, resource usage of the executable program (monitoring, through report generator, performance needs based on users’ configurations par. 0046) ; determining, by the execution platform, that at least one of the one or more resource limits for execution of the executable program has been reached or exceeded, based on the monitored resource usage (determination that utilization of computing resources exceeds threshold for the specific computing resource par. 0068 and 0007); and performing, by the execution platform, one or more actions responsive to determining that the at least one of the one or more resource limits for execution of the executable program has been reached or exceeded (suggesting/implementation of actions to mitigate hotspots/bottlenecks based on exceeding thresholds par. 0068, 0008 – 0013, and 0034 - 0035).
Nguyen does not explicitly teach resource limits and when resource limits are determined. However, it would be obvious to one of ordinary skill in the art prior to the effective filing date of the application that resource utilization thresholds are synonymous with limits placed on resources and thus can be treated as though they are the same.
However, Wang Baldonado teaches: prior to executing, by the execution platform, the executable program on the one or more inputs, determining, by the execution platform, one or more resource limits for execution of the executable program based on the one or more attributes of the one or more inputs (job execution system, before proceeding with processing of the batch job, will determine readiness based on resource limits of the system par. 0115 - 0116); after determining the one or more resource limits, executing, by the execution platform, the executable program on the one or more inputs (if the job execution system is determined to be ready, based on resource limits of the system, then the job will be processed par. 0115 - 0123);
It would have been prima facie obvious to one of ordinary skill in the art prior to the effective filing date of the application to combine the teachings of Nguyen with the teachings of Wang Baldonado since the job execution system of Wang Baldonado would further enhance the system of Nguyen by allowing for checking system resource limits prior to execution of batch jobs which provides minimal information being exchanged as well as maximal independence preservation of the service provider.
Regarding claims 2 and 15, Nguyen teaches: a serverless function; a WebAssembly serverless function; a WebAssembly program; a binary executable computer program; an Executable (EXE) program or an Application (APP) program (various types of applications being benchmarked par. 0003); a script program (benchmark execution scripts par. 0004); or a combination of any two or more thereof.
Regarding claims 4 and 17, Nguyen teaches: wherein the execution platform is a physical machine (framework including both hardware and software components, thus can be a physical machine par. 0004).
Regarding claims 5 and 18, Nguyen teaches: wherein the one or more attributes of the one or more inputs comprise a size of the one or more inputs (size of memtable relating to performance metrics of application par. 0045; note further par. 0039, and 0043 with associated benchmarking settings / specification).
Regarding claims 7 and 20, Nguyen teaches: wherein the one or more attributes of the one or more inputs comprise an input type of the one or more inputs (note further par. 0039 and 0043 with associated benchmarking settings / specification; Further framework having capabilities to measure different types of applications on different types of environments par. 0036; see also par. 0051-0056 and 0099).
Regarding claims 8 and 21, Nguyen teaches: wherein determining the one or more resource limits for execution of the executable program based on the one or more attributes of the one or more inputs comprises scaling one or more respective default resource limits based on the one or more attributes of the one or more inputs to thereby provide the one or more resource limits for execution of the executable program (analysis of performance results to automatically scale clusters par. 0007, 0012, 0016-0018, 0077 – 0080).
Regarding claims 12 and 25, Nguyen teaches: wherein performing the one or more actions responsive to determining that the at least one of the one or more resource limits for execution of the executable program has been reached or exceeded comprises: terminating execution of the executable program; notifying an operator of the execution platform that execution of the executable program on the one or more inputs exceeded the at least one of the one or more resource limits; notifying a developer of the executable program that execution of the executable program on the one or more inputs exceeded the at least one of the one or more resource limits; notifying an associated end-user that execution of the executable program on the one or more inputs exceeded the at least one of the one or more resource limits (notification, via report generator, that threshold has been exceeded/severe incident has occurred on application par. 0046 – 0048); notifying the associated end-user of one or more impacts on a user experience of the associated end-user that result from termination of the execution of the executable program; or a combination of any two or more thereof.
Claim(s) 3, 6, 9, 16, 19, and 22 is/are rejected under 35 U.S.C. 103 as being unpatentable over Nguyen and Wang Baldonado in view of Nilsen (US 6438573).
Regarding claims 3 and 16, Nilsen teaches: wherein the execution platform is a virtualization platform comprising a virtual machine that executes the executable program (using virtual machines to execute application programs to scale performance in the allocation of resources; col. 3, lines 13 – 39; Col. 4 Line 50 – Col. 5 Line 46).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the application to combine the teachings of Nguyen and Wang Baldonado with the teachings of Nilsen since the teachings of Nilsen provide expanded execution platforms for the methods of Nguyen to run on. Further, Nilsen also provides task scheduling based on size, scaling factors relating to available resources, and real-time execution implementations which would provide Nguyen and Wang Baldonado with ensuring global CPU time is spent to reliably satisfy allocation rates (Nilsen: Col. 21 line 6 – Col. 22 Line 18, and Col. 23 Line 56 – Col. 24 line 20).
Regarding claims 6 and 19, Nilsen teaches: wherein the one or more inputs comprise: input data, wherein the size of the one or more inputs comprises a size of input data in terms of a number of bytes (objects of various byte sizes that the current executing activity has permission to allocate Col. 21 Line 6 – Col. 22 Line 18); one or more input arrays, wherein the size of the one or more inputs comprises either a number of elements comprised in a largest input array from among the one or more input arrays or a total number of elements comprised in all of the one or more input arrays; one or more input arrays, wherein the size of the one or more inputs comprises a total data size of all data comprised in all elements of the one or more input arrays; one or more input data trees, wherein the size of the one or more inputs comprises a number of nodes in an input data tree, a data size of one of the nodes in the input data tree having a largest data size from among all nodes in the input data tree, or a total data size of all data comprised in all nodes of the input data tree; or a combination of any two or more thereof.
For motivation to combine see claim 3 above
Regarding claims 9 and 22, Nguyen teaches: wherein scaling the one or more respective default resource limits based on the one or more attributes of the one or more inputs comprises scaling the one or more respective default resource limits based on the one or more attributes of the one or more inputs and one or more linear scaling factors (scaling clusters using the configured limit for the cluster as a default limit for resources par. 0059).
Nguyen does not explicitly teach one or more linear scaling factors.
However, Nilsen teaches: one or more linear scaling factors (determination of linear scaling factor for resources Col. 23 Line 31 – Col. 24 Line 20).
For motivation to combine see claim 3 above.
Claim(s) 10 and 23 is/are rejected under 35 U.S.C. 103 as being unpatentable over Nguyen, Wang Baldonado, and Nilsen in view of Ahmed et al. (US 20180270164).
Regarding claims 10 and 23, Ahmed teaches: wherein the one or more resource limits comprise two or more resource limits associated to either: (a) two or more different linear scaling factors or (b) the same linear scaling factor (system limit to resources allocated to a job in each stage through sys_factor par. 0029).
It would have been prima facie obvious to one of ordinary skill in the art prior to the effective filing date of the application to combine the teachings of Nguyen, Wang Baldonado, and Nilsen with the teachings of Ahmed since the teachings of Ahmed provide a linear scaling factor for resources requested and the limits therein, providing improvement to resource utilization without modifications to the job or management systems (Ahmed: par. 0024).
Claim(s) 11 and 24 is/are rejected under 35 U.S.C. 103 as being unpatentable over Nguyen and Wang Baldonado in view of Novak et al. (US 11307895).
Regarding claims 11 and 24, Novak teaches: wherein scaling the one or more respective default resource limits based on the one or more attributes of the one or more inputs comprises non-linearly scaling the one or more respective default resource limits based on the one or more attributes of the one or more inputs and a defined or configured non-linear function (resource allocation threshold established then scaled using a resource scaling policy which responds to dynamically fluctuating workload requirements by scaling up or down resources dependent on the policy Col. 3 Line 55 – Col. 4 Line 4, Col. 5 Lines 1 – 20, and Claim 1.).
It would have been prima facie obvious to one of ordinary skill in the art prior to the effective filing date of the application to combine the teachings of Nguyen with the teachings of Novak since the use of miss ratio curves in Novak provides the ability to auto-scale resource in dynamically fluctuating workloads to save on operating costs while avoiding queueing, thrashing, or collapse (Novak: Col. 5. Lines 1 – 20).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Hasegawa (US 20170206072) provides upper limits for resources that applications may use and determining free space.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JORDAN SCOTT MOTTER whose telephone number is (703)756-1550. The examiner can normally be reached Monday - Friday 7:30 a.m. - 4:30 p.m..
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, Pierre Vital can be reached at 571-272-4215. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/J.S.M./ Examiner, Art Unit 2198
/PIERRE VITAL/ Supervisory Patent Examiner, Art Unit 2198