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 .
Response to Arguments
Applicant's arguments filed 06/04/2026 have been fully considered but they are not persuasive.
Regarding Claim 1, the amendments do not place the claim in a condition of allowance. For example, the amendments of in response to the second instruction being received by the virtual machine, the apparatus is to: “determine whether the second performance counter is allocated to the virtual machine based on the allocation model, execute the second instruction within the virtual machine in response to a determination that the first performance counter and the second performance counter are allocated to the virtual machine, and raise an exception within the virtual machine in response to a determination that either the first performance counter or the second performance counter is not allocated to the virtual machine,” are considered (in bold) by MPEP 2106.04(a)(2)(III) as a mental process and (in italicize) by MPEP 2106.05(f & g) as mere instructions to apply an exception and extra solution activity, mere data outputting. It is for this reason, the examiner maintains the 101 rejection.
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, 7-14 and 16-20 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.
Specifically, representative Claim 1 recites:
An apparatus comprising: a plurality of performance counters; and an instruction decoder to decode a first instruction to access a first performance counter of the plurality of performance counters; and a storage location, wherein the instruction decoder is also to decode a second instruction to access the storage location, the storage location associated with the first performance counter and a second performance counter of the plurality of performance counters, wherein, in response to the first instruction being received by a virtual machine, the apparatus is to: determine whether the first performance counter is allocated to the virtual machine based on an allocation model to allow any set of the performance counters to be allocated to the virtual machine; and in response to the second instruction being received by the virtual machine, the apparatus is to: determine whether the second performance counter is allocated to the virtual machine based on the allocation model, execute the second instruction within the virtual machine in response to a determination that the first performance counter and the second performance counter are allocated to the virtual machine, and raise an exception within the virtual machine in response to a determination that either the first performance counter or the second performance counter is not allocated to the virtual machine. The claim limitations in the abstract idea have been highlighted in bold above; the remaining limitations are “additional elements”.
Under the Step 1 of the eligibility analysis, we determine whether the claims are to a statutory category by considering whether the claimed subject matter falls within the four statutory categories of patentable subject matter identified by 35 U.S.C. 101: Process, machine, manufacture, or composition of matter. The above claim is considered to be in a statutory category (process).
Under the Step 2A, Prong One, we consider whether the claim recites a judicial exception (abstract idea). In the above claim, the highlighted portion constitutes an abstract idea because, under a broadest reasonable interpretation, it recites limitations that fall into/recite an abstract idea exceptions. Specifically, under the 2019 Revised Patent Subject matter Eligibility Guidance, it falls into the grouping of subject matter when recited as such in a claim limitation, that covers mathematical concepts (mathematical relationships, mathematical formulas or equations, mathematical calculations) and mental processes – concepts performed in the human mind including an observation, evaluation, judgement, and/or opinion.
For example, steps of “decode a first instruction to access a first performance counter of the plurality of performance counters; determine whether the first performance counter is allocated to the virtual machine based on an allocation model to allow any set of the performance counters to be allocated to the virtual machine; determine whether the second performance counter is allocated to the virtual machine based on the allocation model” are treated by the Examiner as belonging to mental process grouping.
Similar limitations comprise the abstract ideas of Claims 13 and 19.
Next, under the Step 2A, Prong Two, we consider whether the claim that recites a judicial exception is integrated into a practical application.
In this step, we evaluate whether the claim recites additional elements that integrate the exception into a practical application of that exception.
The above claims comprise the following additional elements:
In Claim 1: an apparatus, instruction decoder, performance monitoring hardware, virtual machine,
In Claim 13: virtual machine, processor, performance counter;
In Claim 19: system, memory, virtual machine, processor, performance counter, instruction decoder
The additional element in the preamble of “an apparatus, instruction decoder, performance monitoring hardware, virtual machine, system, processor (generic processor, and instruction decoder” are generally recited and are not qualified as particular machines.
Further, the limitations “execute the first instruction within the virtual machine in response to a determination that the first performance counter is allocated to the virtual machine, and raise an exception within the virtual machine in response to a determination that the first performance counter is not allocated to the virtual machine,” are mere instruction s to apply the exception (MPEP 2106.05(f) and insignificant extra solution activity (MPEP 2106.05(g).
In conclusion, the above additional elements, considered individually and in combination with the other claim elements do not reflect an improvement to other technology or technical field, and, therefore, do not integrate the judicial exception into a practical application. Therefore, the claims are directed to a judicial exception and require further analysis under the Step 2B.
However, the above claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception (Step 2B analysis).
The claims, therefore, are not patent eligible.
With regards to the dependent claims, claims 3, 7-14 and 16-20 provide additional features/steps which are part of an expanded algorithm, so these limitations should be considered part of an expanded abstract idea of the independent claims.
Allowable Subject Matter
Claims 1, 3, 7-14 and 16-20 would be allowable if written overcome the 101 rejection set forth in this office action.
The following is a statement of reasons for the indication of allowable subject matter:
Regarding Claim 1, Neiger teaches an apparatus (abstract) comprising: a plurality of performance monitoring hardware resources [0028]; and an instruction decoder to decode a first instruction to access a first performance monitoring hardware resource of the plurality of performance monitoring hardware resources [0019], wherein, in response to the first instruction being received by a virtual machine [0026], the apparatus is to: determine whether the first performance monitoring hardware resource is allocated to the virtual machine based on an allocation model to allow any set of the performance monitoring hardware resources to be allocated to the virtual machine [0030; 0033-0034], execute the first instruction within the virtual machine in response to a determination that the first performance monitoring hardware resource is allocated to the virtual machine [0045], and raise an exception within the virtual machine in response to a determination that the first performance monitoring hardware resource is not allocated to the virtual machine [0033-0034].
Neiger, along with all other references fail to teach a storage location, wherein the instruction decoder is also to decode a second instruction to access the storage location, the storage location associated with the first performance counter and a second performance counter of the plurality of performance counters; wherein, in response to the second instruction being received by the virtual machine, the apparatus is to: determine whether the second performance monitoring hardware resource is allocated to the virtual machine based on the allocation model, execute second instruction within the virtual machine in response to a determination that the first performance monitoring hardware resource and the second performance monitoring are allocated to the virtual machine, and raise an exception within the virtual machine in response to a determination that either the first performance monitoring hardware resource or the second performance monitoring hardware resource is not allocated to the virtual machine. It is for this reason, Claim 1 and all of its dependencies would be allowed.
Claim 13 and 19 includes analogous, though not necessarily coextensive, features in conjunction with Claim 1, an is, therefore, along with its dependencies, for similar rationale as disclosed above, would be allowed.
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 MICHAEL J SINGLETARY whose telephone number is (571)272-4593. The examiner can normally be reached Monday-Friday 8:00am-5:00pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Catherine Rastovski can be reached at 571-270-0349. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MICHAEL J SINGLETARY/Examiner, Art Unit 2857
/Catherine T. Rastovski/Supervisory Primary Examiner, Art Unit 2857
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