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
Claims 1-20 are pending.
Examiner Notes
Examiner cites particular paragraphs and/or columns and lines in the references as applied to Applicant’s claims for the convenience of the Applicant. Although the specified citations are representative of the teachings in the art and are applied to the specific limitations within the individual claim, other passages and figures may apply as well. It is respectfully requested that, in preparing responses, the Applicant fully consider the references in entirety as potentially teaching all or part of the claimed invention, as well as the context of the passage as taught by the prior art or disclosed by the examiner. The prompt development of a clear issue requires that the replies of the Applicant meet the objections to and rejections of the claims. Applicant should also specifically point out the support for any amendments made to the disclosure. See MPEP § 2163.06.
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 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.
Authorization for Internet Communications in a Patent Application
Applicant is encouraged to file an Authorization for Internet Communications in a Patent Application form (http://www.uspto.gov/sites/default/files/documents/sb0439.pdf) along with the response to this office action to facilitate and expedite future communication between Applicant and the examiner. If the form is submitted then Applicant is requested to provide a contact email address in the signature block at the conclusion of the official reply.
Allowable Subject Matter
Claims 1-20 would be allowable over the prior art of record if rewritten to overcome the applicable rejection(s) and objection(s) set forth in this Office action because the examiner found neither prior art cited in its entirety, nor based on the prior art, found any motivation to combine any of the said prior art.
Applicant’s Reply Not Fully Responsive
The reply filed on 04/02/2026 is not fully responsive to the prior Office action because of the following omission(s) or matter(s): Applicant’s arguments fail to comply with 37 CFR 1.111(b)-(c) because they amount to a general allegation that the dependent claims are eligible without specifically pointing out how the language of the dependent claims makes the claims eligible in view of the rejections made. Further, they do not show how the amendments avoid such rejections. More specifically, Applicant’s Remarks are only directed to the independent claims and fail to address any of the abstract idea rejections to the dependent claims. Even if an independent claims is deemed eligible then it does not necessarily mean that all of the dependent claims are also eligible. The response appears to be bona fide, but through an apparent oversight or inadvertence, consideration of some matter or compliance with some requirement has been omitted. Applicant is required to supply the omission or correction to thereby provide a full subsequent response to the instant Office action.
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 (an abstract idea) without significantly more.
Step 1: The claim is a process, machine, manufacture, or composition of matter:
Claim 1. A computer apparatus comprising.
Step 2A Prong One: The claim recites an abstract idea because it includes limitations that can be considered mental processes (concepts performed in the human mind including an observation, evaluation, judgment, and/or opinion). If a claim limitation, under its broadest reasonable interpretation, covers performance of the limitation in the human mind or via pen and paper, then it falls within the “Mental Processes” grouping of abstract ideas. Accordingly, the claim recites an abstract idea:
schedule a resource allocation for the first user (abstract idea mental process);
determine if the second user is associated with one or more resource allocation metrics below a predefined threshold (abstract idea mental process);
apply a preemption algorithm configured to record each incidence of a user request and each incidence of a user allocation to determine if the resource allocation for the first user should be preempted in favor of the second requested allocation to facilitate a usage balance between multiple users (abstract idea mental process);
rescind the resource allocation for the first user when an absolute value of user allocations or a ratio of user allocations to user requests for the second user falls below the predefined threshold (abstract idea mental process); and
schedule a resource allocation for the second user (abstract idea mental process), wherein the predefined threshold is dynamically adjusted based on a comparison of total requests and allocations for the resource to requests and allocations for a specific user such that the predefined threshold is specific for each user (abstract idea mental process).
Step 2A Prong Two: The abstract idea is not integrated into a practical application because the abstract idea is recited but for generically recited additional computer elements (i.e. data storage, processor, memory, computer readable medium, etc.) which do not add meaningful limitations to the abstract idea amounting to simply implementing the abstract idea on a generic computer using generic computing hardware and/or software (e.g. generally linking the use of the judicial exception to a particular technological environment or field of use (see MPEP 2106.05(h)). Mere instructions to apply an exception using a generic computer component cannot provide an inventive concept. The generic computing components are recited at a high-level of generality such that they amount to no more than mere instructions to apply the exception using the recited generic computer components. Accordingly, these additional elements do not integrate the abstract idea into a practical application because they do not impose any meaningful limits on practicing the abstract idea:
at least one processor in data communication with a memory storing processor (generic computing components);
executable code for configuring the at least one processor (generic computing components) to:
receive a resource allocation request from a first user (generic computing components performing extra-solution activity of receiving data/information);
receive a resource allocation request from a second user (generic computing components performing extra-solution activity of receiving data/information).
Step 2B: The claim includes limitations which can be considered extra-solution activity (see MPEP 2106.05(g)) insufficient to amount to significantly more than the abstract idea because the additional limitations only perform at least one of collecting, gathering, displaying, generating, modifying, updating, storing, retrieving, sending, and receiving data/information data which are well-understood, routine, conventional computer functions as recognized by the court decisions listed in MPEP § 2106.05(d)II. The claim further includes limitations that do not integrate the judicial exception into a practical application because they merely recite the words "apply it" (or an equivalent) with the judicial exception, or merely including instructions to implement an abstract idea on a computer, or merely using a computer as a tool to perform an abstract idea, as discussed in MPEP § 2106.05(f). Therefore, the claim, and its limitations when considered separately and in combination, is directed to patent ineligible subject matter:
at least one processor in data communication with a memory storing processor;
executable code for configuring the at least one processor to:
receive a resource allocation request from a first user (extra-solution activity of receiving data/information);
receive a resource allocation request from a second user (extra-solution activity of receiving data/information).
Claim 2. The computer apparatus of Claim 1, wherein the at least one processor is further configured to record resource allocation metrics for each of the first user and second user over time (extra-solution activity of saving/storing/recording data/information).
Claim 3. The computer apparatus of Claim 2, wherein the resource allocation metrics comprise total usage time of the resource (extra-solution activity of saving/storing/recording data/information).
Claim 4. The computer apparatus of Claim 2, wherein the resource allocation metrics comprise a ratio of successful allocations to total allocation requests (extra-solution activity of saving/storing/recording data/information).
Claim 5. The computer apparatus of Claim 2, wherein the resource allocation metrics comprise a disparity of a time of request and an allocated time (extra-solution activity of saving/storing/recording data/information).
Claim 6. The computer apparatus of Claim 1, wherein the at least one processor is further configured to apply a randomizer to decide if the resource allocation should be rescinded (abstract idea mental process).
Claim 7. The computer apparatus of Claim 1, wherein the at least one processor is further configured to reschedule the resource allocation for the first user (abstract idea mental process).
As per claim 8, it has similar limitations as claim 1 and is therefore rejected using the same rationale.
As per claim 9, it has similar limitations as claim 2 and is therefore rejected using the same rationale.
As per claim 10, it has similar limitations as claim 3 and is therefore rejected using the same rationale.
As per claim 11, it has similar limitations as claim 4 and is therefore rejected using the same rationale.
As per claim 12, it has similar limitations as claim 5 and is therefore rejected using the same rationale.
As per claim 13, it has similar limitations as claim 6 and is therefore rejected using the same rationale.
As per claim 14, it has similar limitations as claim 7 and is therefore rejected using the same rationale.
As per claim 15, it has similar limitations as claim 1 and is therefore rejected using the same rationale.
As per claim 16, it has similar limitations as claim 2 and is therefore rejected using the same rationale.
As per claim 17, it has similar limitations as claim 3 and is therefore rejected using the same rationale.
As per claim 18, it has similar limitations as claim 4 and is therefore rejected using the same rationale.
As per claim 19, it has similar limitations as claim 5 and is therefore rejected using the same rationale.
As per claim 20, it has similar limitations as claim 6 and is therefore rejected using the same rationale.
Response to Arguments
All of Applicant's arguments have been fully considered. Applicant’s arguments regarding the 35 U.S.C. 101 abstract idea rejections are not persuasive.
In the Remarks on pg. 9, Applicant argues that the independent claims provide an improvement to the functioning of a computer system. The examiner respectfully traverses. If it is asserted that the invention improves upon conventional functioning of a computer, or upon conventional technology or technological processes, a technical explanation as to how to implement the invention should be present in the specification (see MPEP 2106.05(a)). That is, the disclosure must provide sufficient details such that one of ordinary skill in the art would recognize the claimed invention as providing an improvement and the claim itself must reflect the improvement in technology (emphasis added by the examiner). An indication that the claimed invention provides an improvement can include a discussion in the specification that identifies a technical problem and explains the details of an unconventional technical solution expressed in the claim, or identifies technical improvements realized by the claim over the prior art. The claim must be evaluated to ensure the claim itself reflects the improvement in technology (emphasis added by the examiner). An important consideration in determining whether a claim is directed to an improvement in technology is the extent to which the claim covers a particular solution to a problem or a particular way to achieve a desired outcome, as opposed to merely claiming the idea of a solution or outcome. It is important to note that in order for a method claim to improve computer functionality, the broadest reasonable interpretation of the claim must be limited to computer implementation. That is, a claim whose entire scope can be performed mentally, cannot be said to improve computer technology. Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d 1138, 120 USPQ2d 1473 (Fed. Cir. 2016) (a method of translating a logic circuit into a hardware component description of a logic circuit was found to be ineligible because the method did not employ a computer and a skilled artisan could perform all the steps mentally). Similarly, a claimed process covering embodiments that can be performed on a computer, as well as embodiments that can be practiced verbally or with a telephone, cannot improve computer technology. See RecogniCorp, LLC v. Nintendo Co., 855 F.3d 1322, 1328, 122 USPQ2d 1377, 1381 (Fed. Cir. 2017) (process for encoding/decoding facial data using image codes assigned to particular facial features held ineligible because the process did not require a computer). To show that the involvement of a computer assists in improving the technology, the claims must recite the details regarding how a computer aids the method, the extent to which the computer aids the method, or the significance of a computer to the performance of the method. Thus, for at least the reasons provided above, Applicant’s arguments are unpersuasive and the rejections are sustained.
On pg. 9-10 of the Remarks, Applicant alleges that the independent claims recite a specific asserted improvement. The examiner respectfully disagrees. Applicant’s attempt to show that the recited abstract idea is very narrow and specific is not persuasive. A specific abstract idea is still an abstract idea and is not eligible for patent protection without significantly more recited in the claim. Hence, for at least the rationale provided above, Applicant’s arguments are not persuasive and the rejections are maintained.
In the Remarks on pg. 10, Applicant argues that the independent claims improve how computing resources are managed by enabling dynamic usage balancing across users based on real-time statistical analysis. The examiner respectfully disagrees. Firstly, it should be noted that on pg. 10, Applicant asserts that the claims “continuously records quantitative usage data”, however, no such language appears in the claims or in the instant disclosure. Secondly, Applicant contends that the improvement occurs based on “real-time statistical analysis” i.e., the supposed improvement is in the analysis (emphasis added by the examiner). Hence, Applicant is alleging that the supposed improvement is directed to an abstract idea of analyzing or performing an analysis. Applicant’s attempt to show that the recited abstract idea is the improvement is not persuasive. An “improved” abstract idea (i.e., an “improved” analysis) is still an abstract idea nonetheless and is not eligible for patent protection without significantly more recited in the claim. The examiner respectfully submits that an improvement in computer functionality is a reason for supporting the significance of the additional elements in a claim (Step 2A Prong Two and Step 2B, and not Step 1 or Step 2A Prong One). In other words, the “improvement” rationale is reserved for evaluating whether the additional elements and not the abstract idea itself amount to significantly more than the abstract idea itself (see MPEP 2106.05). Applicant is reminded that the abstract idea itself cannot be directed to an improvement in computer functionality (Step 2A Prong One). Rather only the additional elements can qualify as significantly more (i.e., the improvement) than the abstract idea itself (Step 2A Prong Two and Step 2B). Contrary to Applicant’s assertion, the claims are not directed to a specific asserted improvement in computer capabilities because no capability of the computer is being improved in any way. Applicant cannot rely on “an improved analysis”. Thus, for at least the reasons provided above, Applicant’s arguments are unpersuasive and the rejections are sustained.
On pg. 10 of the Remarks, Applicant alleges that the independent claims are analogous to those in the Enfish case. The examiner respectfully traverses. Initially, it should be noted that the eligibility decision made by the court in the Enfish case was prior to the 2019 Patent Subject Matter Eligibility Guidelines provided by the USPTO (2019 PEG). Even such, applying the 2019 PEG analysis to the claims in the Enfish case would also not render the Enfish claims ineligible because there are no abstract idea limitations recited in the Enfish claims. Furthermore, the Enfish claims are directed to a logical model for a computer database. Unlike the Enfish claims, the instant claims (a) do in fact recite abstract idea limitations and (b) are not directed to a logical model for a computer database. Applicant has failed to explain how the fact patterns of the Enfish case map to those of the instant claims and therefore the examiner asserts that the instant claims are wholly different than the claims in the Enfish case. Hence, for at least the rationale provided above, Applicant’s arguments are not persuasive and the rejections are maintained.
In the Remarks on pg. 10-11, Applicant argues that the independent claims recite specific limitations that meaningfully limit the scope of the claims. The examiner respectfully disagrees. Applicant’s attempt to show that the recited abstract idea is very narrow and specific is not persuasive. A specific abstract idea is still an abstract idea and is not eligible for patent protection without significantly more recited in the claim. Thus, for at least the reasons provided above, Applicant’s arguments are unpersuasive and the rejections are sustained.
On pg. 11 of the Remarks, Applicant alleges that the independent claims provide an inventive concept that is neither conventional nor routine. The examiner respectfully traverses. Applicant is reminded that the lack of prior art (i.e. novelty) does not avoid the problem of abstractness. While § 101 subject matter eligibility is a threshold test that typically precedes the novelty or obviousness inquiry (Bilski v. Kappos, 561 U.S. 593, 602 (2010)), it is a requirement separate from those other patentability inquiries (see Return Mail, Inc. v. USPS, 123 USPQ2d 1813, 1827 (Fed. Cir. 2017) and Mayo Collaborative Servs v. Prometheus Labs, Inc., 566 U.S. 66, 90 (2012)). It is important to recognize that the 35 U.S.C. 101 inquiry and other patentability inquiries might sometimes overlap. However, shifting the 35 U.S.C. 101 patent-eligibility inquiry entirely to the 35 U.S.C. 102 and 103 sections risks creating significantly greater legal uncertainty, and assumes that those sections can do work that they are not equipped to do. While material may be relevant to a novelty and obviousness analysis it may be the case where the material is not relevant to a determination of eligible subject matter. Eligibility and novelty are separate inquiries (see Affinity Labs of Tex., v. DirecTV, LLC, 120 USPQ2d 1201, 1208 Fed. Cir. 2016 and Synopsys, Inc. v. Mentor Graphics Corp., 120 USPQ2d 1473, 1483 Fed. Cir. 2016). Even assuming that a particular claimed feature was novel does not avoid the problem of abstractness. The search for an inventive concept under 35 U.S.C. 101 is thus distinct from demonstrating 35 U.S.C. 102 novelty. The novelty and nonobviousness of the claims under 35 U.S.C. 102 and 103 does not bear on whether the claims are directed to patent-eligible subject matter under 35 U.S.C. 101 (see 2016 U.S. Dist. LEXIS 107478, [WL] and *4). As made clear by the courts, the "‘novelty’ of any element or steps in a process, or even of the process itself, is of no relevance in determining whether the subject matter of a claim falls within the § 101 categories of possibly patentable subject matter." Intellectual Ventures I v. Symantec Corp., 838 F.3d 1307, 1315, 120 USPQ2d 1353, 1358 (Fed. Cir. 2016) (quoting Diamond v. Diehr, 450 U.S. at 188–89, 209 USPQ at 9). See also Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d 1138, 1151, 120 USPQ2d 1473, 1483 (Fed. Cir. 2016) ("a claim for a new abstract idea is still an abstract idea. The search for a § 101 inventive concept is thus distinct from demonstrating § 102 novelty."). In addition, the search for an inventive concept is different from an obviousness analysis under 35 U.S.C. 103. See, e.g., BASCOM Global Internet v. AT&T Mobility LLC, 827 F.3d 1341, 1350, 119 USPQ2d 1236, 1242 (Fed. Cir. 2016) ("The inventive concept inquiry requires more than recognizing that each claim element, by itself, was known in the art. . . . [A]n inventive concept can be found in the non-conventional and non-generic arrangement of known, conventional pieces."). Specifically, lack of novelty under 35 U.S.C. 102 or obviousness under 35 U.S.C. 103 of a claimed invention does not necessarily indicate that additional elements are well-understood, routine, conventional elements. Because they are separate and distinct requirements from eligibility, patentability of the claimed invention under 35 U.S.C. 102 and 103 with respect to the prior art is neither required for, nor a guarantee of, patent eligibility under 35 U.S.C. 101. The distinction between eligibility (under 35 U.S.C. 101) and patentability over the art (under 35 U.S.C. 102 and/or 103) is further discussed in MPEP § 2106.05(d). A prior art search should not be necessary to resolve the inquiry as to whether an additional element (or combination of additional elements) is well-understood, routine, conventional activity. The Supreme Court’s decisions make it clear that judicial exceptions need not be old or long-prevalent, and that even newly discovered or novel judicial exceptions are still exceptions. The Supreme Court’s cited rationale for considering even "just discovered" judicial exceptions as exceptions stems from the concern that "without this exception, there would be considerable danger that the grant of patents would ‘tie up’ the use of such tools and thereby ‘inhibit future innovation premised upon them.’" Myriad, 133 S. Ct. at 2116, 106 USPQ2d at 1978-79 (quoting Mayo, 566 U.S. at 86, 101 USPQ2d at 1971). See also Myriad, 133 S. Ct. at 2117, 106 USPQ2d at 1979 ("Groundbreaking, innovative, or even brilliant discovery does not by itself satisfy the §101 inquiry."). Hence, for at least the rationale provided above, Applicant’s arguments are not persuasive and the rejections are maintained.
Citation of Relevant Prior Art
The prior art made of record and not relied upon is considered pertinent to Applicant's disclosure:
Bekiares et al. (US 2013/0155966) in at least [0006], [0017], and [0052] disclose that it may be advantageous to preempt more than one existing bearer reservation in favor of admitting a single requested bearer reservation. For example, multicast and broadcast bearers inherently make more efficient use of wireless connection resources given their ability to deliver a single data stream to multiple UEs using a single set of wireless connection resources. As such, it may be advantageous to preempt multiple existing unicast bearer reservations in favor of admitting a request for a single multicast bearer reservation.
Hermsmeyer et al. (US 2008/0112312) in at least [0010] disclose that if there is insufficient backup bandwidth to support all service streams affected by worker link failure, then lower ranking service streams are preempted in favor of higher ranking service streams, hence the amount of high quality or `mission critical` service streams is maximized. The overlay protection scheme can be implemented on the same set of active links of a LAG in multiple instances, each having a different protection and preemption overlay scheme: one service type can e.g. be preempted and use remaining bandwidth of all links in load balancing mode.
Rabie et al. (US 2005/0160171) in at least [0092] disclose that a requested connection may, in some situations, "bump" or preempt existing connections that have lower priority for breaking ties among multiple preemption candidate connections with equal priority for improved load balancing, or for deciding in favor of bumping several small connections rather than a single large connection.
Munemann (US 2013/0226865) in at least [0142] discloses that a pre-determined threshold may be statically or dynamically set. The threshold may be set by a system administrator and applicable to one user or a group of users. Individual users may set their threshold value. The threshold may be dynamically set, such as by comparing when the user selects the relationship the counter value.
Vajda (US 2012/0060170) disclose scheduling processing resources on a multi-core chip.
Sait (US 10,353,745) disclose assessing performance of disparate computing environments.
Raja et al. (US 2008/0225718) disclose providing global server load balancing of heterogeneous devices.
Gupta et al. (US 2020/0196345) disclose scheduling of periodic traffic due to a missed transmission opportunity in unlicensed spectrum.
Doo et al. (US 2016/0277142) disclose optical network unit for low latency packet transmission.
Cutrell et al. (US 2005/0076336) disclose scheduling resources on a switched underlay network.
Chen et al. (US 2016/0234857) disclose parallel low latency awareness.
Boyden et al. (US 2005/0047379) disclose ultra-wide band wireless communication for delivering audio/video content.
Baker et al. (US 2010/0189046) disclose reactive scheduling to enable peer-to-peer communication links in a wireless system.
Conclusion
THIS ACTION IS MADE FINAL. 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 Adam Lee whose telephone number is (571) 270-3369. The examiner can normally be reached on M-TH 8AM-5PM.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Pierre Vital can be reached on 571-272-4215. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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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.
/Adam Lee/Primary Examiner, Art Unit 2198 April 21, 2026
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