Detailed Action
This action is in response to RCE filed on 11/26/2025.
This application was filed on 07/22/2022.
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claims 1-20 are pending.
Claims 1-20 are rejected.
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 11/26/2025 has been entered.
Applicant's Response
In Applicant's Response dated 11/26/2025, Applicant amended claims 1, 13, 14, and 18. Applicant argued against various rejections previously set forth in the Office Action mailed on 09/24/2025.
In light of applicant’s amendments/remarks, all objections to the claims set forth previously are withdrawn.
In light of applicant’s amendments/remarks, all rejection of claims under 35 U.S.C. 112 set forth previously are withdrawn.
Claim Objections
The examiner suggests amending claim 8, line 6-9 in following manner for clarification purposes:
“determining whether the executable program satisfies the one or more performance-related criteria…”
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 is rejected under 35 U.S.C. 101 as being directed to abstract idea without significantly more.
Representative claim 1 is directed to A computer-implemented method comprising:
executing one or more benchmarking programs on a benchmarking platform, wherein the benchmarking platform is an execution platform that simulates an execution platform on which an executable program is to be executed and each of the one or more benchmarking programs is an executable program that corresponds to a respective performance level for execution of the executable program on an associated execution platform;
obtaining one or more first values for one or more performance-related parameters during the execution of the one or more benchmarking programs on the benchmarking platform;
executing the executable program on the benchmarking platform;
obtaining one or more second values for the one or more performance-related parameters during the execution of the executable program on the benchmarking platform;
determining whether the executable program satisfies one or more performance-related criteria for execution on the execution platform based on the one or more first values and the one or more second values for the one or more performance-related parameters; and
performing one or more actions based on a result of the determining.
Per prong 1, Step 2A, the above emphasized element/concepts are not meaningfully different than those concepts found by the courts to be abstract, namely, mental processes including concepts performed in the human mind (including an observation, evaluation, judgment, opinion) and/or humans using pen and paper (see, October 2019 Patent Eligibility Guidance Update, 84 Fed. Reg. 55,942, hereinafter “PEG”). For instance, humans can mentally and/or via aid of pen/paper perform a method comprising: determining whether the executable program satisfies one or more performance-related criteria for execution on the execution platform based on the one or more first values and the one or more second values for the one or more performance-related parameters.
Per prong 2, Step 2A, the additional non-emphasized elements as noted above, are mere data gathering/sending steps/insignificant extra-solution activity to the judicial exception; are merely adding words “apply it” (or an equivalent) with the judicial exception/mere instructions to implement an abstract idea on a computer, or merely uses a computer as a tool to perform an abstract idea; Generally linking the use of the judicial exception to a particular technological environment or field of use. For instance,
“executing one or more benchmarking programs on a benchmarking platform, wherein the benchmarking platform is an execution platform that simulates, an execution platform on which an executable program is to be executed and each of the one or more benchmarking programs is an executable program that corresponds to a respective performance level for execution of the executable program on an associated execution platform; obtaining one or more first values for one or more performance-related parameters during the execution of the one or more benchmarking programs on the benchmarking platform and obtaining one or more second values for the one or more performance-related parameters during the execution of the executable program on the benchmarking platform;” are mere data gathering/insignificant extra-solution activity to the judicial exception, see MPEP 2106.05(f)
“executing the executable program on the benchmarking platform” and “performing one or more actions based on a result of the determining” are merely 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)
Additionally, the recited claim limitations do not improve the functionality of the electronic device or achieve improved technical results and does not sufficiently tie any limitations or combination of limitation to any improvement (if any) to the functionality of the electronic device or achieving improved technical results.
Per Step 2B, the additional non-emphasized elements as noted above, are mere data gathering/sending steps/insignificant extra-solution activity to the judicial exception; are merely adding words “apply it” (or an equivalent) with the judicial exception/mere instructions to implement an abstract idea on a computer, or merely uses a computer as a tool to perform an abstract idea; Generally linking the use of the judicial exception to a particular technological environment or field of use - see MPEP 2106.05(d, f, g, h). . For instance,
“executing one or more benchmarking programs on a benchmarking platform, wherein the benchmarking platform is an execution platform that simulates, at least to a limited-degree, an execution platform on which an executable program is to be executed and each of the one or more benchmarking programs is an executable program that corresponds to a respective performance level for execution of the executable program on an associated execution platform; obtaining one or more first values for one or more performance-related parameters during the execution of the one or more benchmarking programs on the benchmarking platform and obtaining one or more second values for the one or more performance-related parameters during the execution of the executable program on the benchmarking platform;” are mere data gathering/insignificant extra-solution activity to the judicial exception, see MPEP 2106.05(f)
“executing the executable program on the benchmarking platform” and “performing one or more actions based on a result of the determining” are merely 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).
Additionally, the recited claim limitations do not improve the functionality of the electronic device or achieve improved technical results and does not sufficiently tie any limitations or combination of limitations to any improvement (if any) to the functionality of the electronic device or achieving improved technical results.
Accordingly, claim 1 is rejected under 35 U.S.C. 101 as being directed to an abstract idea without significantly more.
Independent claims 13, and 14 are system and medium claims corresponding to method claim 1 and are of substantially same scope.
Accordingly, claims 13, and 14 are rejected under the same rational as set forth for claim 1.
Dependent claims 2-12, and 15-20 when considered individually or in combination per steps as noted above are rejected under the same rational as set forth above for claims 1, 13, and 14, and the recited claim limitations do not improve the functionality of the electronic device or achieve improved technical results and does not sufficiently tie any limitations or combination of limitations to any improvement (if any) to the functionality of the electronic device or achieving improved technical results. In particular,
As per claim 2, the rejection of claim 1 further incorporated, further recites wherein the executable program comprises: a serverless function; a WebAssembly serverless function; a WebAssembly program; a binary executable computer program;an Executable (EXE) program or an Application (APP) program; a script program; or a combination of any two or more thereof.
Per prong 1, Step 2A, the above emphasized element/concepts are not meaningfully different than those concepts found by the courts to be abstract, namely, Mental Processes including concepts performed in the human mind (including an observation, evaluation, judgment, opinion) and/or humans using pen and paper.
Per prong 2, Step 2A and 2B, the additional elements (e.g. non-emphasized elements) are mere data gathering/sending steps/insignificant extra-solution activity to the judicial exception - see MPEP 2106.05(g) and/or are merely adding 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(d, f, g, h).
As per claim 3, the rejection of claim 1 further incorporated, further recites wherein the one or more performance-related parameters comprise one or more parameters related to resource usage and the one or more performance-related criteria comprise one or more resource usage limits.
Per prong 1, Step 2A, the above emphasized element/concepts are not meaningfully different than those concepts found by the courts to be abstract, namely, Mental Processes including concepts performed in the human mind (including an observation, evaluation, judgment, opinion) and/or humans using pen and paper.
Per prong 2, Step 2A and 2B, the additional elements (e.g. non-emphasized elements) are mere data gathering/sending steps/insignificant extra-solution activity to the judicial exception - see MPEP 2106.05(g) and/or are merely adding 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(d, f, g, h).
As per claim 4, the rejection of claim 3 further incorporated, further recites wherein the resource usage comprises: processor usage, memory usage, network input/output, or a combination of any two or more thereof.
Per prong 1, Step 2A, the above emphasized element/concepts are not meaningfully different than those concepts found by the courts to be abstract, namely, Mental Processes including concepts performed in the human mind (including an observation, evaluation, judgment, opinion) and/or humans using pen and paper.
Per prong 2, Step 2A and 2B, the additional elements (e.g. non-emphasized elements) are mere data gathering/sending steps/insignificant extra-solution activity to the judicial exception - see MPEP 2106.05(g) and/or are merely adding 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(d, f, g, h).
As per claim 5, the rejection of claim 4 further incorporated, further recites wherein performing the one or more actions comprises: storing an indication that indicates the result of the determining; enabling or disabling uploading of the executable program to the execution platform based on the result of the determining; or both: (a) storing the indication that indicates the result of the determining and (b) enabling or disabling uploading of the executable program to the execution platform based on the result of the determining.
Per prong 1, Step 2A, the above emphasized element/concepts are not meaningfully different than those concepts found by the courts to be abstract, namely, Mental Processes including concepts performed in the human mind (including an observation, evaluation, judgment, opinion) and/or humans using pen and paper.
Per prong 2, Step 2A and 2B, the additional elements (e.g. non-emphasized elements) are mere data gathering/sending steps/insignificant extra-solution activity to the judicial exception - see MPEP 2106.05(g) and/or are merely adding 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(d, f, g, h).
As per claim 6, the rejection of claim 1 further incorporated, further recites wherein the one or more benchmarking programs comprise two or more benchmarking programs each related to a different performance level..
Per prong 1, Step 2A, the above emphasized element/concepts are not meaningfully different than those concepts found by the courts to be abstract, namely, Mental Processes including concepts performed in the human mind (including an observation, evaluation, judgment, opinion) and/or humans using pen and paper.
Per prong 2, Step 2A and 2B, the additional elements (e.g. non-emphasized elements) are mere data gathering/sending steps/insignificant extra-solution activity to the judicial exception - see MPEP 2106.05(g) and/or are merely adding 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(d, f, g, h).
As per claim 7, the rejection of claim 6 further incorporated, further recites wherein the one or more first values comprise one or more separate values for the one or more performance-related parameters for each benchmarking program of the two or more benchmarking programs.
Per prong 1, Step 2A, the above emphasized element/concepts are not meaningfully different than those concepts found by the courts to be abstract, namely, Mental Processes including concepts performed in the human mind (including an observation, evaluation, judgment, opinion) and/or humans using pen and paper.
Per prong 2, Step 2A and 2B, the additional elements (e.g. non-emphasized elements) are mere data gathering/sending steps/insignificant extra-solution activity to the judicial exception - see MPEP 2106.05(g) and/or are merely adding 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(d, f, g, h).
As per claim 8, the rejection of claim 7 further incorporated, further recites wherein determining whether the executable program satisfies the one or more performance-related criteria for execution on the execution platform based on the one or more first values and the one or more second values for the one or more performance-related parameters comprises, for each benchmarking program of the two or more benchmarking programs: determining whether the executable program satisfies one or more performance-related criteria, defined for the benchmarking program, based on a comparison of the one or more first values obtained for the one or more performance-related parameters for the benchmarking program and the one or more second values for the one or more performance-related parameters obtained for the executable program.
Per prong 1, Step 2A, the above emphasized element/concepts are not meaningfully different than those concepts found by the courts to be abstract, namely, Mental Processes including concepts performed in the human mind (including an observation, evaluation, judgment, opinion) and/or humans using pen and paper.
Per prong 2, Step 2A and 2B, the additional elements (e.g. non-emphasized elements) are mere data gathering/sending steps/insignificant extra-solution activity to the judicial exception - see MPEP 2106.05(g) and/or are merely adding 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(d, f, g, h).
As per claim 9, the rejection of claim 8 further incorporated, further recites wherein performing the one or more actions comprises: notifying a developer of the executable program of the result of the determining for at least one of the two or more benchmarking programs; storing an indication that indicates the result of the determining for at least one of the two or more benchmarking programs; enabling or disabling uploading of the executable program to the execution platform based on the result of the determining for at least one of the two or more benchmarking programs; or any combination of two or more thereof.
Per prong 1, Step 2A, the above emphasized element/concepts are not meaningfully different than those concepts found by the courts to be abstract, namely, Mental Processes including concepts performed in the human mind (including an observation, evaluation, judgment, opinion) and/or humans using pen and paper.
Per prong 2, Step 2A and 2B, the additional elements (e.g. non-emphasized elements) are mere data gathering/sending steps/insignificant extra-solution activity to the judicial exception - see MPEP 2106.05(g) and/or are merely adding 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(d, f, g, h).
As per claim 10, the rejection of claim 8 further incorporated, further recites wherein performing the one or more actions comprises: notifying a developer of the executable program of the result of the determining for at least one of the two or more benchmarking programs; storing an indication that indicates the result of the determining for at least one of the two or more benchmarking programs; enabling or disabling uploading of the executable program to the execution platform based on the result of the determining for at least one of the two or more benchmarking programs; or any combination of two or more thereof.
Per prong 1, Step 2A, the above emphasized element/concepts are not meaningfully different than those concepts found by the courts to be abstract, namely, Mental Processes including concepts performed in the human mind (including an observation, evaluation, judgment, opinion) and/or humans using pen and paper.
Per prong 2, Step 2A and 2B, the additional elements (e.g. non-emphasized elements) are mere data gathering/sending steps/insignificant extra-solution activity to the judicial exception - see MPEP 2106.05(g) and/or are merely adding 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(d, f, g, h).
As per claim 11, the rejection of claim 10 further incorporated, further recites wherein the execution platform is operated by a first entity and the benchmarking platform is operated by a second entity that is different from the first entity..
Per prong 1, Step 2A, the above emphasized element/concepts are not meaningfully different than those concepts found by the courts to be abstract, namely, Mental Processes including concepts performed in the human mind (including an observation, evaluation, judgment, opinion) and/or humans using pen and paper.
Per prong 2, Step 2A and 2B, the additional elements (e.g. non-emphasized elements) are mere data gathering/sending steps/insignificant extra-solution activity to the judicial exception - see MPEP 2106.05(g) and/or are merely adding 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(d, f, g, h).
As per claim 12, the rejection of claim 10 further incorporated, further recites wherein the website hosting service provider is an e- commerce store hosting service.
Per prong 1, Step 2A, the above emphasized element/concepts are not meaningfully different than those concepts found by the courts to be abstract, namely, Mental Processes including concepts performed in the human mind (including an observation, evaluation, judgment, opinion) and/or humans using pen and paper.
Per prong 2, Step 2A and 2B, the additional elements (e.g. non-emphasized elements) are mere data gathering/sending steps/insignificant extra-solution activity to the judicial exception - see MPEP 2106.05(g) and/or are merely adding 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(d, f, g, h).
As per claim 20, the rejection of claim 14 further incorporated, further recites wherein the execution platform is operated by a first entity and the executable program is developed by a second entity that is different than the first entity..
Per prong 1, Step 2A, the above emphasized element/concepts are not meaningfully different than those concepts found by the courts to be abstract, namely, Mental Processes including concepts performed in the human mind (including an observation, evaluation, judgment, opinion) and/or humans using pen and paper.
Per prong 2, Step 2A and 2B, the additional elements (e.g. non-emphasized elements) are mere data gathering/sending steps/insignificant extra-solution activity to the judicial exception - see MPEP 2106.05(g) and/or are merely adding 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(d, f, g, h).
As per claims 13-19:
Claims 13-19 are system and medium claims corresponding to method claims 1-6 and are of substantially same scope.
Accordingly, claims 13-19 are rejected under the same rational as set forth for claims 1-6.
Accordingly, claims 1-20 are rejected under 35 U.S.C. 101 as being directed to abstract idea.
Allowable Subject Matter
Claims 1-20 would allowable if the above noted rejections are overcome via amendments and/or arguments. Reasons for allowance will be held in abeyance until all matters in the prosecution are closed.
Response to Arguments
Applicant’s arguments filed on 11/26/2025 have been fully considered but they are not persuasive and/or moot in view of new/modified grounds of rejections.
35 U.S.C. 101:
Applicant argues “claim 1… provides an improvement to a technology or technical field, namely, software development and performance benchmarking of a software program” by specifically points to paragraph 0019-0021 for support and further argues that claim 1 does not invoke a computer merely as tool to perform process (see, response pages 8-11).
The examiner disagrees.
As noted in rejection above, claim 1 is abstract in that the claim can fundamentally be performed mentally and/or via aid of pen/paper including determining whether the executable program satisfies one or more performance-related criteria for execution on the execution platform based on the one or more first values and the one or more second values for the one or more performance-related parameters. The other limitations as noted in the rejection are mere data gathering steps and/or are merely 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, g). Furthermore, the step of “performing one or more actions based on a result of the determining" is mere generic instructions to apply the abstract idea does not sufficiently (by itself or in combination with other limitations) tie the claimed invention to any improvements to the functionality of the electronic device or improved technical results. In other words, the claim doesn’t actually require doing any step that necessarily leads to improvement of computing device/technical field (e.g. any remediation action to fix/improve issues/problem of executable program). And the recited performing “action”, under broadest reasonable interpretation in view of specification, could be logging and/or notification of the result of the determination which wouldn’t be solve the technical problem or provide a solution the problem. Accordingly, the claim/s, as presently written, fails to recite significantly more than the underlying abstract idea and does not improve computing device/technical field.
Accordingly, applicant argument is not percussive and/or moot in view of modified grounds of rejection.
All other arguments depend on arguments addressed above.
The examiner disagrees as noted above and/or moot in view of modified grounds of rejection.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant’s disclosure.
Device For Characterising And/or Modelling Worst-case Execution Time
DOCUMENT ID
US 11748530 B2
DATE PUBLISHED
2023-09-05
Abstract
A computer device for characterising execution time by a processor, comprising a memory (8) which receives benchmark program data, sets of characterisation configuration data and sets of execution case data, and a constructor (4) which determines, for each set of execution case data, a set of worst-case configuration data of the processor and a set of initialisation values based on a set of execution case data, and determining a reference execution time by executing the benchmark program according to the set of execution case data using the processor configured with the set of configuration data with the set of initialisation values, all the reference execution times forming a set of reference execution times. The constructor (4) determines, for each set of characterisation configuration data, a set of characterisation execution times comprising a number of characterisation execution times equal to the number of elements of the set of reference execution times and each characterisation execution time being determined by executing the benchmark program using the processor configured with a set of characterisation configuration data and with a set of initialisation values representing the benchmark program and the processor. The constructor (4) determines a set of characterisation coefficients by applying an algorithm for determining the maximum likelihood between the set of reference execution times (M0) and the sets of characterisation execution times (M[k]), and the device returns the set of characterisation configuration data and the set of characterisation coefficients.
See form 892.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MUSTAFA A AMIN whose telephone number is (571)270-3181. The examiner can normally be reached on Monday-Friday from 8:00 AM to 5:00 PM.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Kevin Young, can be reached on 571-270-3180. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of an application may be obtained from Patent Center. Status information for published applications may be obtained from Patent Center. Status information for unpublished applications is available through Patent Center for authorized users only. Should you have questions about access to Patent Center, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free).
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) Form at https://www.uspto.gov/patents/uspto-automated- interview-request-air-form.
/MUSTAFA A AMIN/ Primary Examiner, Art Unit 2194