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 .
DETAILED ACTION
Response to Arguments
Applicant’s arguments with respect to independent claim(s) have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Applicant state: Independent claims 1, 9, and 17 are eligible under at least a prong 2 analysis, as they are integrated into a practical application of co-location determination of virtual resources. Reconsideration and withdrawal of the rejection is therefore respectfully requested.
Examiner states: Examiner respectfully disagrees. The added limitations merely amount to no more than mere instructions, or generic computer/computer components to carry out the exception. Accordingly, the additional element recited in claim 2 fails to provide a practical application under prong 2, or amount to significantly more under step 2B. For this reason, 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 1-20 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.
Regarding independent claims the limitations aggregating timestamps, determining subsets, outputting indicia, as drafted, recites functions that, under its broadest reasonable interpretation, covers a function that could reasonably be performed in the mind, including with the aid of pen and paper, but for the recitation of generic computer components. That is, the limitations as cited above as drafted, are functions that, under its broadest reasonable interpretation, recite the abstract idea of a mental process.
Thus, these limitation falls within the “Mental Processes” grouping of abstract ideas under Prong 1.
Under Prong 2, this judicial exception is not integrated into a practical application. The claim recites the following additional limitations: a clock, physical hardware, processors, and memory. The additional elements are recited at a high-level of generality such that it amounts no more than mere instructions to apply the exception using generic computer, and/or mere computer components, MPEP 2106.05(f). The step of obtaining do nothing more than add insignificant extra solution activity to the judicial exception of merely gathering data. Accordingly, the additional elements do not integrate the recited judicial exception into a practical application and the claim is therefore directed to the judicial exception. See MPEP 2106.05(g) (Ex. v. Consulting and updating an activity log, Ultramercial, 772 F.3d at 715, 112 USPQ2d at 1754).
Under Step 2B, the claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception. As discussed above with respect to integration of the abstract idea into a practical application, the additional elements of a clock, physical hardware, processors, and memory, amount to no more than mere instructions, or generic computer/computer components to carry out the exception.
The recitation of generic computer instruction and computer components to apply the judicial exception, and mere data gathering do not amount to significantly more, thus, cannot provide an inventive concept. Accordingly, the claims are not patent eligible under 35 USC 101.
Regarding claim 7, 15 the limitations of tracking changes are functions that can be reasonably performed in the human mind, thus, additional mental process defined in the claims. The claim does not include any additional element, thus, no limitation that needs to be analyzed under prong 2 for practical application, or under step 2B for significantly more.
Regarding claim 2, 3, 4, 5, 6, 11, 12, 13, 14, 18, 19, 20 the limitation of a data structure, network packets being unrelated, and what are virtual resources are generic computer/computer components to carry out the exception Accordingly, the additional element recited in claim 2 fails to provide a practical application under prong 2, or amount to significantly more under step 2B.
Regarding claim 8, 16 the limitations of migration based on changes are nothing more than insignificant extra solution activity which is not a practical application under prong 2. Under step 2B, the courts of identified the generic function of gathering/storing data, the results of the judicial exception, is well-understood, routine and conventional activity. See MPEP 2106.05(d).
Claim Rejections - 35 USC §103
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 1-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Cheng (Pub. No. US 2022/0150147) in view of Watanabe (Pub. No. US 2021/0306216) in further view of Li (Pub. No. US 2019/0370467).
Claim 1, 9, 17 Cheng teaches “a computer-implemented method for determining whether subsets of a plurality of virtual resources are co-located on a physical resource, the method comprising: obtaining a plurality of raw input signals based on a plurality of network packets between sets of the plurality of virtual resources; aggregating a plurality of timestamps into a data structure, each timestamp of the plurality of timestamps corresponding to one of a sent time or a receive time of a network packet of the plurality of network packets exchanged between two of the virtual resources of the plurality of network packets, the virtual resources synchronized to a common reference clock ([0077] At 730 in FIG. 7, the end-to-end, intra-host flow-based latency (denoted as L(f3) or L3) associated with the third packet flow (f3) between VM1 131 and VM2 132 may be calculated as: L(f3)=y2−y1, which is the difference between a time point at which “P5” 710 is detected at source VIF=VNIC1 141 and a subsequent time point at which “P5” 710/720 is detected at destination VIF=VNIC2 142. The latency table storing flow-based latency measurement for traffic originating from VNIC1 141 may be updated to include mapping information that associates (a) the intra-host latency measurement L(f3) and (b) tuple information associated with intra-host packet flow f3 for the example in FIG. 7. [0036] Depending on the desired implementation, the flow-based latency L(f1) for the first packet flow (f1) may be determined based on any suitable latency measurement approach, such as by calculating L(f1)=d1−d2. In this example, a first duration (d1)=(t4−t1) may represent a time difference between a fourth timestamp (t4) and a first timestamp (t1) recorded by host-A 110A according to a first clock. A second duration (d2)=(t3−t2) may represent a time difference between a third timestamp (t3) and a second timestamp (t2) recorded by host-B 110B according to a second clock. It is not necessary for the first clock running on host-A 110A to synchronize with the second clock running on host-B 110B. In other words, inter-host clock synchronization (which may be difficult to achieve) is not required to implement the examples of the present disclosure.)”.
However, Cheng may not explicitly teach distance.
Watanabe teaches “the data structure representing one or more raw signals of distance between the sets of the virtual resources that exchanged network packets, …and outputting indicia of the subsets ([0080] For example, in a case where the communication cost between the VM1 and the VM2 in the immediately preceding communication cost model is “0” and the calculated difference between the communication costs is “10”, at the edge between the VM1 and the VM2, [0072] In step S208, the model creation unit 68 creates a communication cost model based on the communication cost matrix calculated in step S202, the communication distance relationship created in step S206, and cost definition information. The communication cost model in FIG. 4 is created by storing the communication cost of the cost definition information corresponding to the row and the column, in the value of the communication cost matrix with reference to the communication distance relationship. Since the positional relationship of the cost definition information corresponds to the communication distance relationship, it is sufficient to allocate and store the communication cost of the positional relationship of the cost definition information corresponding to the communication distance relationship. For example, since the communication distance relationship between the VM2 and the VM5 is “different business offices”, 100 that is the communication cost of the “different business offices” of the cost definition information is allocated.)”.
It would have been obvious to one of ordinary skill in the art at the time the invention was filed to apply the teachings of Watanabe with the teachings of Cheng in order to provide a system that teaches distance based on latency. The motivation for applying Watanabe teaching with Cheng teaching is to provide a system that allows for obtaining additional information related to situational awareness. Cheng, Watanabe are analogous art directed towards management of VM resources. Together Cheng, Watanabe teach every limitation of the claimed invention. Since the teachings were analogous art known at the filing time of invention, one of ordinary skill could have applied the teachings of Watanabe with the teachings of Cheng by known methods and gained expected results.
However, the combination may not explicitly teach the new limitations.
Li teaches “determining, using the data structure, subsets of sets of virtual resources that are using shared physical hardware and therefore are co-located on the shared physical hardware ([0018] The untrusted application, e.g., Inspect App 106, handles two requests from the cloud customer: COLLECT and INSPECT requests. These are shown as examples in FIG. 1 as requests to physical machine 101 and physical machine 103, respectively. The COLLECT request returns evidence generated by the TEE application. Pieces of evidence obtained from all existing VMs can be collected and later used as input of the INSPECT request to a newly deployed VM. This is process is depicted in the example of FIG. 1 where the cloud customer sends a COLLECT request to VM.sub.A which provides Evidence.sub.A, and Evidence.sub.A is used by the cloud customer in an INSPECT request to VM.sub.B which ultimately provides a report. Upon an INSPECT request, the TEE Inspect App.sub.0 will verify the pieces of evidence and generate a report that states whether the new VM co-locates with any of the existing VMs. In the example of FIG. 1, evidence collection is performed on VM.sub.A and an inspection process is performed on VMB to determine whether VMA and VMB are co-located. The inspection process for the new VM does not necessarily involve interaction with already deployed VMs. In some embodiments, instead of verifying whether a new VM co-locates with any existing VMs, pieces of evidence from existing VMs are compared by a chosen VM to determine whether the chosen VM co-locates with any other existing VM.)”.
It would have been obvious to one of ordinary skill in the art at the time the invention was filed to apply the teachings of Li with the teachings of Cheng, Watanabe in order to provide a system that teaches co-located determination. The motivation for applying Li teaching with Cheng, Watanabe teaching is to provide a system that allows for situational awareness. Cheng, Watanabe, Li are analogous art directed towards management of VM resources. Together Cheng, Watanabe, Li teach every limitation of the claimed invention. Since the teachings were analogous art known at the filing time of invention, one of ordinary skill could have applied the teachings of Li with the teachings of Cheng, Watanabe by known methods and gained expected results.
Claim 2, 10, 18 the combination teaches the claim, wherein Watanabe teaches “the computer-implemented method of claim 1, wherein the data structure comprises at least one distance matrix ([Fig. 4] The communication cost model in FIG. 4 is created by storing the communication cost of the cost definition information corresponding to the row and the column, in the value of the communication cost matrix with reference to the communication distance relationship. Since the positional relationship of the cost definition information corresponds to the communication distance relationship, it is sufficient to allocate and store the communication cost of the positional relationship of the cost definition information corresponding to the communication distance relationship)”.
Rationale to claim 1 is applied here.
Claim 3, 11, 19 the combination teaches the claim, wherein Watanabe teaches “the computer-implemented method of claim 2, wherein the data structure comprises a plurality of distance matrices comprising the at least one distance matrix, and wherein aggregating the plurality of timestamps into the data structure comprises combining the plurality of distance matrices into a combined distance matrix ([Fig. 4] The communication cost model in FIG. 4 is created by storing the communication cost of the cost definition information corresponding to the row and the column, in the value of the communication cost matrix with reference to the communication distance relationship. Since the positional relationship of the cost definition information corresponds to the communication distance relationship, it is sufficient to allocate and store the communication cost of the positional relationship of the cost definition information corresponding to the communication distance relationship)”.
Rationale to claim 1 is applied here.
Claim 4, 12, 20 the combination teaches the claim, wherein Cheng teaches “the computer-implemented method of claim 1, wherein the network packets are passively exchanged based on instructions of an application that are unrelated to measuring distance between a given set of virtual resources ([0035] At 340 and 350 in FIG. 3, in response to detecting a second encapsulated packet (see “ENCAP2” 250) from host-B 110B responsive to the first encapsulated packet, host-A 110A may identify second time information from a second outer header (see “O2”) of the second encapsulated packet. The second time information may be associated with the first inner data packet (see “P1” 230) and a second inner packet (see “P2” 240) at host-B 110B. Further, at 360, based on the first time information and the second time information, host-A 110A may determine a flow-based latency measurement associated with the packet flow. [0036] Depending on the desired implementation, the flow-based latency L(f1) for the first packet flow (f1) may be determined based on any suitable latency measurement approach, such as by calculating L(f1)=d1−d2. In this example, a first duration (d1)=(t4−t1) may represent a time difference between a fourth timestamp (t4) and a first timestamp (t1) recorded by host-A 110A according to a first clock. Examiner notes a timestamp is interpreted as being unrelated to distance.)”.
Claim 5, 13, the combination teaches the claim, wherein Watanabe teaches “the computer-implemented method of claim 1, wherein the network packets are exchanged based on instructions to measure distance between a given set of virtual resources ([0047] In the example of FIG. 10, the larger the number of the communication cost, the longer the communication distance between the virtual machines, for example, the longer the communication time. As described above, in the communication cost definition information, the communication cost is defined for each positional relationship between the virtual machines in the network configuration. The communication cost is merely an example, and may be another value such as a physical distance, the number of hops, and a communication time corresponding to the positional relationship between the two virtual machines.)”.
Rationale to claim 1 is applied here.
Claim 6, 14 the combination teaches the claim, wherein Cheng teaches “the computer-implemented method of claim 1, wherein the sets of virtual resources comprise one or more of virtual machines (VMs) and virtual network interface cards (vNICs) ([Fig. 4] VMs)”.
Claim 7, 15 the combination teaches the claim, wherein Watanabe teaches “the computer-implemented method of claim 1, further comprising tracking changes in virtual resource allocation to physical hardware over time ([0047] As illustrated in FIG. 8, for the communication relationship between the virtual machines, a communication history including a date and time, a transmission source (src in FIG. 8), and a destination (dst in FIG. 8) is used. In order to acquire the latest communication relationship, a communication history at the latest date and time among communication histories of combinations of the transmission sources and the destinations may be referred to. [0034] A problem associated with the work for the infrastructure operation occurs. For example, when an infrastructure operator changes a network configuration by migrating a virtual machine to another server, a business system may be affected. No matter which server the virtual machine is migrated to, the same function may be used in the virtual machine. However, when one of two virtual machines over the same server migrates to another server, a communication time may be longer than before the migration depending on a migration destination server.)”.
Rationale to claim 1 is applied here.
Claim 8, 16 the combination teaches the claim, wherein Watanabe teaches “the computer-implemented method of claim 6, wherein changes in virtual resource allocation to physical hardware comprise migration of a given virtual resource to different physical hardware ([0043] A configuration change of a network such as a migration of a virtual machine is controlled by the managing server 14. The business system 10 performs a configuration change such as a migration of a virtual machine in accordance with a configuration change notification received from the managing server 14.)”.
Rationale to claim 1 is applied here.
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 WYNUEL S AQUINO whose telephone number is (571)272-7478. The examiner can normally be reached 9AM-5PM EST M-F.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Lewis Bullock can be reached at 571-272-3759. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/WYNUEL S AQUINO/Primary Examiner, Art Unit 2199