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 .
This office action is in response to applicant’s amendment filed on 06/02/2026.
Claims 1, 3-7, 9-13 and 15-21 are pending and examined.
Claims 2, 8 and 14 are cancelled.
Response to Arguments
Applicant's arguments filed 06/02/2026 with respect to the claim objections have been fully considered and are persuasive. The formulas presented are clearer and therefore the claim objections have been withdrawn.
Applicant's arguments filed 06/02/2026 with respect to 35 U.S.C. 112(b) have been fully considered and are persuasive. The insufficient antecedent basis has been removed in the amendments and therefore the rejections under 35 U.S.C. 112(b) have been withdrawn.
Applicant's arguments filed 06/02/2026 with respect to 35 U.S.C. 101 have been fully considered but they are not persuasive. Applicant argued that the claims cannot be performed solely by the human mind, even with the air of pen and paper or by using a computer as a general tool, that the concepts are integrated into a practical application, and the claims present an improvement over existing technology through balancing the load of individual hosts. Examiner respectfully disagrees, see 35 U.S.C. 101 rejections below for a detailed analysis. Claims 1 and 9 have been amended to incorporate the subject matter from claim 2, where claims 2 and 14 merely further describe the calculation formula of the target function of claims 1 and 9 respectively. The claims do not include additional elements that integrate into practical application or are sufficient to amount to significantly more than the judicial exception. The independent claims 1 and 9 contain abstract ideas, such as performing, calculating, and determining steps in which a human could reasonably perform a function calculation step to obtain target function values corresponding to the respective fireflies, calculate a target function according to the location of each of the to-be-processed objects, and determine whether a maximum number of iterations is reached, for example, by plugging in respective values into a target function to calculate a value or checking if the current number if iterations exceeds the maximum number of iterations. The claims appear to be directed to the overall performance of the abstract idea steps without elaborating on details of the deployment step that is related to the improvement claimed by the applicant.
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, 3-7, 9-13 and 15-21 are rejected under 35 U.S.C. 101 because the claimed invention is directed to (an) abstract idea(s) without significantly more.
Claims 1, 9 and 10 recite:
A virtual machine deployment method performed by a processor in a cloud computing environment, comprising:
randomly setting, by a processor, locations of respective fireflies and
initializing target parameters of the respective fireflies, wherein the locations of the respective fireflies are locations of respective to- be-selected hosts;
taking, by a processor, the respective fireflies separately as to-be-processed objects, and
performing a function calculation step to obtain target function values corresponding to the respective fireflies;
the function calculation step comprising: calculating a target function according to the location of each of the to-be-processed objects, wherein the target function can represent an average performance score of all the to-be-selected hosts after assuming that a virtual machine has been deployed to each of the to-be-processed objects;
determining, by a processor, whether a maximum number of iterations is reached;
when the maximum number of iterations is reached, determining, by a processor, a firefly corresponding to the largest target function value among all target function values as a destination firefly,
determining a to-be-selected host corresponding to the destination firefly as a destination host, and
deploying the virtual machine to the destination host to maximize the average performance of all the to-be-selected hosts, thereby maximizing the operation performance of all hosts in the cloud platform while scheduling the virtual machines; and
when the maximum number of iterations is not reached, updating, by the processor, the target parameters of the respective fireflies,
updating the locations of the respective fireflies according to the updated target parameters, and
re-performing the step of taking the respective fireflies separately as the to-be-processed objects and
performing the function calculation step to obtain target function values corresponding to the respective fireflies; wherein the calculation formula of the target function is:
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wherein F is the target function; fp is an average power consumption of the to-be- selected hosts after assuming that the virtual machine has been deployed to each of the to-be- processed objects; fCPU is an average CPU utilization rate of all the to-be-selected hosts after assuming that the virtual machine has been deployed to each of the to-be-processed objects; fload is an average resource balance degree of all the to-be-selected hosts after assuming that the virtual machine has been deployed to each of the to-be-processed objects; K1, K2 and K3 are preset weight values, respectively.
Step 1: Is the claim to a process, machine, manufacture, or composition of matter?
Yes.
Claim 1 is a process.
Claim 9 is a machine.
Claim 10 is a manufacture.
Step 2A, Prong I: Does the claim recite an abstract idea, law of nature, or natural phenomenon?
Yes: (an) abstract idea(s).
The ‘performing’ limitation in #4 above, as claimed and under broadest reasonable interpretation (BRI), is a mathematical concept that covers mathematical relationships, formulas, equations, and calculations. The limitation “performing” in the context of this claim encompasses performing a function calculation step to obtain target function values.
The ‘calculating’ limitation in #5 above, as claimed and under broadest reasonable interpretation (BRI), is a mathematical concept that covers mathematical relationships, formulas, equations, and calculations. The limitation “calculating” in the context of this claim encompasses calculating a target function according to the location of each to-be-processed object.
The ‘determining’ limitation in #6 above, as claimed and under broadest reasonable interpretation (BRI), is a mental process that covers performance of the limitation in the mind. The limitation “determining” in the context of this claim encompasses a person analyzing, evaluating, or determining whether a maximum number of iterations is reached, including comparison or judgement.
The ‘determining’ limitation in #7 above, as claimed and under broadest reasonable interpretation (BRI), is a mental process that covers performance of the limitation in the mind. The limitation “determining” in the context of this claim encompasses a person analyzing, evaluating, or determining a firefly corresponding to the largest target function value as a destination firefly, including comparison or judgement.
The ‘determining’ limitation in #8 above, as claimed and under broadest reasonable interpretation (BRI), is a mental process that covers performance of the limitation in the mind. The limitation “determining” in the context of this claim encompasses a person analyzing, evaluating, or determining a to-be-selected host corresponding to the destination firefly as a destination host, including comparison or judgement.
The ‘performing’ limitation in #13 above, as claimed and under broadest reasonable interpretation (BRI), is a mathematical concept that covers mathematical relationships, formulas, equations, and calculations. The limitation “performing” in the context of this claim encompasses performing a function calculation step to obtain target function values.
Step 2A, Prong II: Does the claim recite additional elements that integrate the judicial exception into a practical application?
No.
The ‘setting’ limitation in #1 above, as claimed and under broadest reasonable interpretation (BRI), is an additional element as “apply it” that is mere instructions to apply an exception. The limitation “setting” in the context of this claim encompasses merely randomly setting locations of fireflies. See MPEP 2106.05(f).
The ‘initializing’ limitation in #2 above, as claimed and under broadest reasonable interpretation (BRI), is an additional element as “apply it” that is mere instructions to apply an exception. The limitation “initializing” in the context of this claim encompasses merely initializing target parameters of fireflies. See MPEP 2106.05(f).
The ‘taking’ limitation in #3 above, as claimed and under broadest reasonable interpretation (BRI), is an additional element that is insignificant extra-solution activity. The limitation “taking” in the context of this claim encompasses merely taking the fireflies as to-be-processed objects. See MPEP 2106.05(g).
The ‘deploying’ limitation in #9 above, as claimed and under broadest reasonable interpretation (BRI), is an additional element as “apply it” that is mere instructions to apply an exception. The limitation “deploying” in the context of this claim encompasses merely deploying the virtual machine to the destination host. See MPEP 2106.05(f).
The ‘updating’ limitation in #10 above, as claimed and under broadest reasonable interpretation (BRI), is an additional element as “apply it” that is mere instructions to apply an exception. The limitation “updating” in the context of this claim encompasses merely updating the target parameters of the fireflies. See MPEP 2106.05(f).
The ‘updating’ limitation in #11 above, as claimed and under broadest reasonable interpretation (BRI), is an additional element as “apply it” that is mere instructions to apply an exception. The limitation “updating” in the context of this claim encompasses merely updating the locations of the fireflies. See MPEP 2106.05(f).
The ‘re-performing’ limitation in #12 above, as claimed and under broadest reasonable interpretation (BRI), is an additional element that is insignificant extra-solution activity. The limitation “re-performing” in the context of this claim encompasses merely re-performing the step of taking the fireflies as to-be-processed objects. See MPEP 2106.05(g).
Additionally, one or more of the claims recite the following additional elements:
A memory (Claim 9)
A processor (Claims 9 and 10)
A computer program (Claims 9 and 10)
These additional elements are recited at a high level of generality (i.e., as generic computer components) such that they amount to no more than components comprising mere instructions to apply the exception. Accordingly, these additional elements do not integrate the abstract idea(s) into a practical application because they do not impose any meaningful limits on practicing the abstract ideas(s).
Step 2B: Does the claim recite additional elements that amount to significantly more than the judicial exception?
No.
As discussed above with respect to integration of the abstract idea(s) into a practical application, the aforementioned additional elements amount to no more than components for obtaining or gathering data and comprising mere instructions to apply the exception which is evidently seen in MPEP 2106.05(g)&(f). Mere instructions to apply an exception using generic computer components cannot provide an inventive concept.
Claims 3 and 15 merely further describe the average resource balance degree of Claims 2 and 14 respectively. The claims do not include additional elements that integrate into practical application or are sufficient to amount to significantly more than the judicial exception.
Claims 11 and 20 merely further describe the neighbor firefly of Claims 5 and 17 respectively. The claims do not include additional elements that integrate into practical application or are sufficient to amount to significantly more than the judicial exception.
Claims 12 and 21 merely further describe the probability of each neighbor firefly of Claims 11 and 20 respectively. The claims do not include additional elements that integrate into practical application or are sufficient to amount to significantly more than the judicial exception.
Claims 13 merely further describes the quantity of locations of fireflies and hosts of Claim 1. The claim does not include additional elements that integrate into practical application or are sufficient to amount to significantly more than the judicial exception.
Therefore, Claims 1, 3, 9-13, 15, and 20-21 is directed to (an) abstract idea(s) without significantly more.
Claims 4 and 16 recite:
wherein the target parameter comprises fluorescein and a step length; the step of updating, by the processor, the target parameters of the respective fireflies comprises:
updating, by the processor, fluorescein of the respective fireflies with a first formula, wherein the first formula is:
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updating, by the processor, step lengths of the respective fireflies with a second formula, wherein the second formula is:
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wherein li(t+ 1) is fluorescein of a firefly i at the (t+1)th iteration, p(0 < p < 1) is a fluorescein volatilization speed of the firefly i, li(t) is fluorescein of the firefly i at the tth iteration, y is a fluorescein update rate of the firefly i, Fi(t +1) is a target function value of the firefly i at the (t+1)th iteration, si(t + 1) is a step length of the firefly i at the (t+1)th iteration, smin is a preset minimum step length, smax is a preset maximum step length, t+1 is the current number of iterations, and tmax is the maximum number of iterations
Step 1: Is the claim to a process, machine, manufacture, or composition of matter?
Yes.
Claim 4 is a process.
Claim 16 is a machine.
Step 2A, Prong I: Does the claim recite an abstract idea, law of nature, or natural phenomenon?
Yes: (an) abstract idea(s).
The ‘updating’ limitation in #14 above, as claimed and under broadest reasonable interpretation (BRI), is a mathematical concept that covers mathematical relationships, formulas, equations, and calculations. The limitation “updating” in the context of this claim encompasses updating the fluorescein of fireflies with a first formula.
The ‘updating’ limitation in #15 above, as claimed and under broadest reasonable interpretation (BRI), is a mathematical concept that covers mathematical relationships, formulas, equations, and calculations. The limitation “updating” in the context of this claim encompasses updating the step lengths of fireflies with a second formula.
Step 2B: Does the claim recite additional elements that amount to significantly more than the judicial exception?
No.
As discussed above with respect to integration of the abstract idea(s) into a practical application, the aforementioned additional elements amount to no more than components for obtaining or gathering data and comprising mere instructions to apply the exception which is evidently seen in MPEP 2106.05(f). Mere instructions to apply an exception using generic computer components cannot provide an inventive concept.
Therefore, Claims 4 and 16 are directed to (an) abstract idea(s) without significantly more.
Claims 5 and 17 recite:
wherein the step of updating, by the processor, the locations of the respective fireflies according to the updated target parameters comprises:
updating, by the processor, the locations of the respective fireflies with a third formula, wherein the third formula is:
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wherein xi(t+1) is a location of the firefly i at the (t+1)th iteration, xi(t) is a location of the firefly i at the tth iteration, si(t + 1) is the step length of the firefly i at the (t+1)th iteration, xj(t) is a location of a firefly j at the tth iteration, and ||xj(t) – xi(t)|| is a Euclidean distance between the location of the firefly i and the location of the firefly j and wherein the firefly j is a neighbor firefly selected within a decision domain of the firefly i at the tth iteration based on the roulette rule, and the fluorescein of the firefly j is greater than the fluorescein of the firefly i.
Step 1: Is the claim to a process, machine, manufacture, or composition of matter?
Yes.
Claim 5 is a process.
Claim 17 is a machine.
Step 2A, Prong I: Does the claim recite an abstract idea, law of nature, or natural phenomenon?
Yes: (an) abstract idea(s).
The ‘updating’ limitation in #16 above, as claimed and under broadest reasonable interpretation (BRI), is a mathematical concept that covers mathematical relationships, formulas, equations, and calculations. The limitation “updating” in the context of this claim encompasses updating the locations of fireflies with a third formula.
Step 2B: Does the claim recite additional elements that amount to significantly more than the judicial exception?
No.
As discussed above with respect to integration of the abstract idea(s) into a practical application, the aforementioned additional elements amount to no more than components for obtaining or gathering data and comprising mere instructions to apply the exception which is evidently seen in MPEP 2106.05(f). Mere instructions to apply an exception using generic computer components cannot provide an inventive concept.
Claims 6 and 18 merely further describe the target parameter of Claims 5 and 17 respectively. The claims do not include additional elements that integrate into practical application or are sufficient to amount to significantly more than the judicial exception.
Therefore, Claims 5-6 and 17-18 are directed to (an) abstract idea(s) without significantly more.
Claims 7 and 19 recite:
performing, by the processor, normalization on the average power consumption, the average CPU utilization rate, and the average resource balance degree, wherein a normalization formula is:
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wherein fp is the average power consumption after normalization, fp_0 is the average power consumption before normalization, fp_min is a minimum average power consumption, and fp_max is a maximum average power consumption; fcpu is the average CPU utilization rate after normalization, fcpu_o is the average CPU utilization rate before normalization, fcpu_min is a minimum average CPU utilization rate, fcpu_max is a maximum average CPU utilization rate; fload is the average resource balance degree after normalization, fload_0 is the average resource balance degree before normalization, fload_min is a minimum average resource balance degree, fload_max is a maximum average resource balance degree.
Step 1: Is the claim to a process, machine, manufacture, or composition of matter?
Yes.
Claim 7 is a process.
Claim 19 is a machine.
Step 2A, Prong I: Does the claim recite an abstract idea, law of nature, or natural phenomenon?
Yes: (an) abstract idea(s).
The ‘performing’ limitation in #17 above, as claimed and under broadest reasonable interpretation (BRI), is a mathematical concept that covers mathematical relationships, formulas, equations, and calculations. The limitation “performing” in the context of this claim encompasses performing normalization on the average power consumption using a normalization formula.
Step 2B: Does the claim recite additional elements that amount to significantly more than the judicial exception?
No.
As discussed above with respect to integration of the abstract idea(s) into a practical application, the aforementioned additional elements amount to no more than components for obtaining or gathering data and comprising mere instructions to apply the exception which is evidently seen in MPEP 2106.05(f). Mere instructions to apply an exception using generic computer components cannot provide an inventive concept.
Therefore, Claims 7 and 19 are directed to (an) abstract idea(s) without significantly more.
Allowable Subject Matter
Claims 1, 3-7, 9-13 and 15-21 would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 101 set forth in this Office action and to include all of the limitations of the base claim and any intervening claims.
Prior Art Made of Record
The prior art made of record and not relied upon is considered pertinent to applicant’s disclosure.
Barlaskar et al. (NPL: “Energy-efficient virtual machine placement using enhanced firefly algorithm”); teaching a method of virtual machine placement using an enhanced and modified firefly algorithm and a hierarchical cluster-based modified firefly algorithm. These algorithms present comparative analysis relating to energy optimization and detect when hosts are overloaded when considering placement options.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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 SELINA HU whose telephone number is (571)272-5428. The examiner can normally be reached Monday-Friday 8:30-5:30.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Chat Do can be reached at (571) 272-3721. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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SELINA HU
Examiner
Art Unit 2193
/Chat C Do/Supervisory Patent Examiner, Art Unit 2193
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