The present application, filed on or after 16 March 2013, is being examined under the first inventor to file provisions of the AIA .
DETAILED ACTION
This office action is in response to Applicant’s submission filed on 16 June 2023. THIS ACTION IS NON-FINAL.
Claims 1-20 are pending.
Claims 1-20 are rejected under 35 U.S.C. 112(b) as indefinite.
Claim 1-20 are rejected under 35 U.S.C. 101 for being directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more.
Claims 1, 6, 8, 13, 15 and 19 are rejected under 35 U.S.C. 103 as unpatentable.
There is no art rejection for claims 2-5, 7, 9-12, 14, 16-18 and 20.
Claim Rejections - 35 USC § 112
112(b) Rejection
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
A claim is indefinite if, when read in light of the specification, it fails to inform, with reasonable certainty, those skilled in the art about the scope of the invention. Nautilus, Inc. v. Biosig Instruments, Inc., 110 USPQ.2d 1688, U.S. Supreme Court (2014).
Claims 1-20 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor, or for pre-AIA the applicant regards as the invention.
Regarding claim 1 / 8 / 15,
(a)The claim opens with "identifying optimal solutions" (plural, no antecedent needed) but closes referencing "an optimal solution" (singular, indefinite article). There is no clear antecedent tying this singular "an optimal solution" back to the plural "optimal solutions" recited earlier. A POSITA cannot tell whether this is one the same optimal solutions identified in the first clause or a newly introduced, undefined optimal solution, the claim is therefore indefinite. For the purpose of applying prior art “an optimal solution” is construed to be “the optimal solutions”.
(b) ”identifying a sub-optimal solution space and adaptability …”, it is unclear what concrete act corresponds to "identifying adaptability." Adaptability is a capacity/property, not something one typically "identifies" as a discrete method step alongside "identifying a solution space." This conjunctive phrasing (identifying [noun 1] and [abstract property]) fails to clearly define what structure or process step provides the "adaptability," making the metes and bounds of this final claim element unclear, the claim is therefore indefinite. For the purpose of applying prior art “identifying a sub-optimal solution space and adaptability for the …” is construed to be “identifying a sub-optimal solution space for the…”.
Regarding claims 2-7 / 9-14 / 16-20, which depend on above rejected claim 1 / 8 / 15, are rejected for the same reason.
Regarding claim 3 / 9 / 16, “the additive pointer modifier”, lack of antecedent basis, the claim is therefore indefinite. For the purpose of applying prior art “identifying a sub-optimal solution space and adaptability for the …” is construed to be “the additive and multiplicative pointer modifier…”.
Regarding claim 5 / 12 / 19, “a candidate system”, as claim 1 / 8 / 9 already establishes "a plurality of candidate systems" and "each candidate system." Claim 5's reintroduction of "a candidate system" (indefinite article) rather than "the candidate system" or "a candidate system of the plurality of candidate systems" creates ambiguity as to whether this is one of the previously-recited candidate systems or a new, unclaimed entity, the claim is therefor indefinite. For the purpose of applying prior art, “a candidate system” is construed to be “a candidate system of the plurality of candidate systems”.
Regarding claim 6, “the optimal candidate system”, lack of antecedent basis, the claim is therefore indefinite. For the purpose of applying prior art, “the optimal candidate system” is construed to be “the optimal solutions”.
Regarding claim 7 / 14 / 20, “the classification systems”, lack of antecedent basis, the claim is therefore indefinite. For the purpose of applying prior art, “the classification systems” is construed to be “the plurality of candidate systems”.
Regarding claim 7 / 14 / 20, “a canary function measure”, While the specification defines them via Eq. (2)–(7), the claims do not recite any of the underlying mathematical relationships. Reciting only the name of a bespoke mathematical construct, without any structural or mathematical limitation in the claim, risks the claim covering any process that could retroactively be labeled "discord" or "exclusion," and raises a question of whether the terms are being used consistently with their special definition in the specification or more broadly, the claim is therefore indefinite. For the purpose of applying prior art, a canary function measure” is construed to be “a measure”
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.
Judicial Exception
Claims 1-20 of the claimed invention are directed to a judicial exception, an abstract idea, without significantly more.
Regarding claims 1-20,
(Independent Claims) With regards to claim 1 / 8 / 15,
Step 1: The claim recites a process / product / machine, which falls into one of the statutory categories.
Step 2A – Prong 1: the claim, in part, recites:
(a)“identifying optimal solutions based on overlaying prioritized NFRs for at least one target system as supported by each candidate system of a plurality of candidate systems, wherein supportable technical NFRs are used for each combination of options under the plurality of candidate systems” (mental process and/or certain methods of organizing human activity (commercial /business relations — evaluating options against requirements)), as drafted, is a process that, under its broadest reasonable interpretation, covers performance of the limitation in the mind but for the recitation of generic computer components. That is, other than reciting generic computer elements, nothing in the claim element precludes the step from practically being performed in the mind. For example, but for the language about generic computer elements, “identifying”, in the limitation citied above encompasses comparing a set of prioritized requirements against a set of candidate options to identify the best match, which is based on observation, evaluation, judgement, and/or opinion, that could be performed by human using paper / pen / calculator. If a claim limitation, under its broadest reasonable interpretation, covers performance of the limitation in the mind but for the recitation of generic computer components, then it falls within the “Mental Processes” grouping of abstract ideas;
(b) “generating a cognitive processing model … for extracting NFRs for options for existing system designs” (mental process and/or math concept), as drafted, is a process that, under its broadest reasonable interpretation, covers mathematical concepts but for the recitation of generic computer components. Under BRI, and consistent with the specification's disclosure that "cognitive processing model" is any of several generic, interchangeable ML model types ([0017]), this limitation amounts to selecting/using a mathematical model to derive parameter values from data — a mathematical calculation. Mathematical relationship and algorithms have been found by the courts to be abstract ideas, e.g., see MPEP 2106.04(a)(2) A. Mathematical Relationships, iv. organizing information and manipulating information through mathematical correlations, Digitech Image Techs., LLC v. Electronics for Imaging, Inc., 758 F.3d 1344, 1350, 111 USPQ2d 1717, 1721 (Fed. Cir. 2014). The patentee in Digitech claimed methods of generating first and second data by taking existing information, manipulating the data using mathematical functions, and organizing this information into a new form. The court explained that such claims were directed to an abstract idea because they described a process of organizing information through mathematical correlations, like Flook's method of calculating using a mathematical formula. 758 F.3d at 1350, 111 USPQ2d at 1721. If a claim limitation, under its broadest reasonable interpretation, covers mathematical relationships, then it falls within the “Mathematical Concepts” grouping of abstract ideas.
(c) “providing classification overlay of each individual candidate system across the NFRs prioritized based on business requirement” (mental process and/or certain methods of organizing human activity), under its broadest reasonable interpretation, covers performance of the limitation in the mind but for the recitation of generic computer components. That is, other than reciting generic computer elements, nothing in the claim element precludes the step from practically being performed in the mind. For example, but for the language about generic computer elements, “providing classification …”, in the limitation citied above encompasses classifying subjects based on requirements, which is based on observation, evaluation, judgement, and/or opinion, that could be performed by human using paper / pen / calculator. If a claim limitation, under its broadest reasonable interpretation, covers performance of the limitation in the mind but for the recitation of generic computer components, then it falls within the “Mental Processes” grouping of abstract ideas;
(d) “utilizing unbiased decision processing based on discord, exclusion and similarity as functions of the cognitive processing model; and identifying a sub-optimal solution space and adaptability for the sub-optimal solution space in absence of an optimal solution” (mental process and/or math concept), as drafted, is a process that, under its broadest reasonable interpretation, covers mathematical concepts but for the recitation of generic computer components. "discord," "exclusion," and "similarity" are expressly defined in the specification as mathematical functions (Eq. 2–4) computing values over a bounded interval [α,β] using max/min and integral operations on fuzzy-classified sets. This is a mathematical formula/relationship falling squarely within the "mathematical concepts" category of MPEP 2106.04(a)(2)(I). See Parker v. Flook, 437 U.S. 584 (1978); SAP America, 898 F.3d at 1163 (claims "directed to a result or effect ... independent of any particular ... process for achieving that result" via mathematical techniques are abstract). If a claim limitation, under its broadest reasonable interpretation, covers mathematical relationships, then it falls within the “Mathematical Concepts” grouping of abstract ideas.
Accordingly, the claim recites an abstract idea.
Step 2A – Prong 2: This judicial exception is not integrated into a practical application. In particular, the claim recites the additional elements of “using a computing device to provide non-functional requirement (NFR) fulfilment based technical disposition…”, “using machine learning adaptivity …”, “A computer program product for providing non-functional requirement (NFR) fulfilment based technical disposition, the computer program product comprising a computer readable storage medium having program instructions embodied therewith, the program instructions executable by a processor to cause the processor to …”, “An apparatus comprising: a memory configured to store instructions; and a processor configured to execute the instructions to…”, which is mere instructions to implement an abstract idea using generic computing device, or merely uses a computer as a tool to perform an abstract idea (see MPEP 2106.05(f)). Accordingly. the additional elements individually or in combination do not integrate the judicial exception into a practical application. The claim is directed to an abstract idea.
Step 2B Analysis: The claim does not include additional elements that are sufficient to amount to significantly more than the judicial exception. As discussed above, the claim recites the additional elements of “using a computing device to provide non-functional requirement (NFR) fulfilment based technical disposition…”, “using machine learning adaptivity …”, “A computer program product for providing non-functional requirement (NFR) fulfilment based technical disposition, the computer program product comprising a computer readable storage medium having program instructions embodied therewith, the program instructions executable by a processor to cause the processor to …”, “An apparatus comprising: a memory configured to store instructions; and a processor configured to execute the instructions to…”, which is mere instructions to implement an abstract idea using generic computing device, or merely uses a computer as a tool to perform an abstract idea (see MPEP 2106.05(f)). Accordingly, the additional elements individually or in combination do not amount to significantly more than the judicial exception. The claim is not patent eligible.
(Dependent claims)
Claims 2-7 / 9-14 / 16-20 are dependent on claim 1 / 8 / 15 and include all the limitations of claim 1 / 8 / 15. Therefore, claims 2-7 / 9-14 / 16-20 recite the same abstract ideas.
With regards to claim 2 / 9 / 16, the claim recites further limitation of “… wherein the unbiased decision processing utilizes a decision function based on additive and multiplicative pointer modifiers and weights” (mental process and/or math concept), which specifies further detail of math relationship / calculation. If a claim limitation, under its broadest reasonable interpretation, covers mathematical relationships, then it falls within the “Mathematical Concepts” grouping of abstract ideas. Except citing generic computer elements to implement the abstract idea, there is no additional element showing integration into a practical application or adding something significantly more to the abstract idea. The claim is not patent eligible.
With regards to claim 3 / 10 / 17, the claim recites further limitation of “… wherein the additive pointer modifier represents all classifications required to create NFR based dispositions” (mental process and/or math concept), which specifies further detail of math relationship / calculation. If a claim limitation, under its broadest reasonable interpretation, covers mathematical relationships, then it falls within the “Mathematical Concepts” grouping of abstract ideas. Except citing generic computer elements to implement the abstract idea, there is no additional element showing integration into a practical application or adding something significantly more to the abstract idea. The claim is not patent eligible.
With regards to claim 4 / 11 / 18, the claim recites further limitation of “… wherein the additive and multiplicative pointer modifiers and weights are determined by a training operation on representative sets of objects with known classifications” (mental process and/or math concept), which specifies further detail of math relationship / calculation. If a claim limitation, under its broadest reasonable interpretation, covers mathematical relationships, then it falls within the “Mathematical Concepts” grouping of abstract ideas. Except citing generic computer elements to implement the abstract idea, there is no additional element showing integration into a practical application or adding something significantly more to the abstract idea. The claim is not patent eligible.
With regards to claim 5 / 12, the claim recites further limitation of “… wherein an NFR classification configuration utilized by a candidate system uses weightage that is defined by business as a penta-model classification system” (mental process and/or math concept), which specifies further detail of math relationship / calculation. If a claim limitation, under its broadest reasonable interpretation, covers mathematical relationships, then it falls within the “Mathematical Concepts” grouping of abstract ideas. Except citing generic computer elements to implement the abstract idea, there is no additional element showing integration into a practical application or adding something significantly more to the abstract idea. The claim is not patent eligible.
With regards to claim 6 / 13 / 19, the claim recites further limitation of “… wherein a second processing iteration for the identifying optimal solutions commences where the sub-optimal solution space is considered in absence of the optimal candidate system” (mental process and/or math concept), which specifies further detail of math relationship / calculation. If a claim limitation, under its broadest reasonable interpretation, covers mathematical relationships, then it falls within the “Mathematical Concepts” grouping of abstract ideas. Except citing generic computer elements to implement the abstract idea, there is no additional element showing integration into a practical application or adding something significantly more to the abstract idea. The claim is not patent eligible.
With regards to claim 7 / 14 / 20, the claim recites further limitation of “… wherein a canary function measure is used as a similarity criterion for producing an expression of a classification result when each comparison within the classification systems is compared with significance categories, and the significance categories are weighted and become a sorted vector that is utilized to cover an entire solution space ordinally” (mental process and/or math concept), which specifies further detail of math relationship / calculation. If a claim limitation, under its broadest reasonable interpretation, covers mathematical relationships, then it falls within the “Mathematical Concepts” grouping of abstract ideas. Except citing generic computer elements to implement the abstract idea, there is no additional element showing integration into a practical application or adding something significantly more to the abstract idea. The claim is not patent eligible.
Claim Rejections - 35 USC § 103
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.
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.
Claims 1, 6, 8, 13, 15, and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Mukherjee et al, US-PATENT NO.9552232B2 [hereafter Mukherjee] in view of Cohon et al, “A review and evaluation of multiobjective programing techniques”, Water Researches research, April 1975 [hereafter Cohon].
With regards to claim 8, Mukherjee teaches
“A computer program product for providing non-functional requirement (NFR) fulfilment based technical disposition, the computer program product comprising a computer readable storage medium having program instructions embodied therewith, the program instructions executable by a processor to cause the processor to (Mukherjee, FIG.1-3, Abstract, C3L25-C4L63,
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identify, by the processor, optimal solutions based on overlaying prioritized NFRs for at least one target system as supported by each candidate system of a plurality of candidate systems, wherein supportable technical NFRs are used for each combination of options under the plurality of candidate systems (Mukherjee, FIG.3-5,
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C2L67-C3L3, ‘When a new service is requested, the data-base is searched and a correct cloud configuration is extracted based on the service’s similarity with a previous cloud configuration …’, C6L22-33, ‘…the search through the database further takes into account user preference (synonymously referred to herein as non-functional requirements) …These preferences can relate to performance requirements (i.e., the processing time for responding to a request), budget/cost (i.e., the price for deployment), and green point, etc. …’, Notice that the service requested is the claimed target system; the database of previously-deployed configurations is the plurality of candidate systems. A overlays the user's prioritized NFR preferences (fixed performance level, sorted-by-cost axis) against each candidate configuration to find the best match — directly reading on "overlaying prioritized NFRs ... as supported by each candidate system."), the identifying further including:
generate, by the processor, a cognitive processing model using machine learning adaptability for extracting NFRs for options for existing system designs (Mukherjee, FIG.4-5, C5L26-41, ‘The parameters for a new service can be assumed and expected values can be computed … There is no limit made herein to the type of classification method used to extract the parameters. Any existing classification method or future innovations in classifications can be used as part of the process…. Such as k-nearest neighbors, decision trees, or support vector machine (SVM) classifier…’);
provide, by the processor, classification overlay of each individual candidate system across the NFRs prioritized based on business requirement (Mukherjee, FIG.4-5, C5L42-C6L58, ‘…the resource usage pattern is mapped to a multidimensional space, which represents a history table and/or database. FIG.5 shows a sample cloud configuration database 500 being maintained as a multi-dimensional history table’, ‘… takes into account user preferences (synonymously referred to herein as ‘non-functional requirements) …to maintain a list of cloud configurations as a sorted list …’); and
utilize, by the processor, unbiased decision processing based on … similarity as functions of the cognitive processing model (Mukherjee, FIG.2-3, ‘… uses the similarity to search …’); and
identify, by the processor, a sub-optimal solution space and adaptability for the sub-optimal solution space in absence of an optimal solution (Mukherjee, FIG.4, C7L5-38, ‘Continuing with FIG.4, if the history table is empty (YES at S408) or no relevant cloud configuration is found after it is searched *YES at S412), an available infrastructure is searched for a new cloud configuration at S414 …The system 100 searches the cloud configuration list for the most similar cloud configuration that is inactive. If the first determined cloud configuration has active status and is not available for deployment, the system continues to search the database for the first inactive entry that it can find through a linear search …’, Notice that When no exact/optimal match exists in the database, or the top match is unavailable, A does not fail — it adaptively expands the search (to infrastructure, or to the next-best entry in the sorted list). This fallback search of a broader, non-optimal candidate space, triggered specifically by the absence of an available optimal solution, reads on "identifying a sub-optimal solution space and adaptability ... in absence of an optimal solution.")”.
Mukherjee does not explicitly detail “…based on discord, exclusion”.
However Cohon teaches “… based on discord, exclusion (Cohon, Evaluation of Solution Techniques, p.215, ‘… the value judgments take the form of weights on the objective, a “concordance condition” and a “discordance condition”…’, Summary of the Evaluation, p.217, ‘…to exclude clearly interior alternatives from further consideration …’)”.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, and having the teachings of Mukherjee and Cohon before him or her, to modify the system and method for solution selection of Mukherjee to include more specific evaluation as shown in Cohon.
The motivation for doing so would have been for evaluation of multiobjective programming (Cohon, Abstract).
With regards to claim 13, Mukherjee in view of Cohon teaches
“The computer program product of claim 8, wherein a second processing iteration for the identifying optimal solutions commences where the sub-optimal solution space is considered in absence of the optimal candidate system (Mukherjee, FIG.4, C7L5-54, ‘The system 100 searches the cloud configuration list for the most similar cloud configuration that is inactive. It the first determined cloud configuration has active status and is not available for deployment, the system continues to search the database for the first inactive entry that it can find through a linear search …’)”.
Claims 1, 6, 15 and 19 are substantially similar to claims 8, 13. The arguments as given above for claims 8, 13 are applied, mutatis mutandis, to claims 1, 6, 15 and 19, therefore the rejection of claim 8, 13 are applied accordingly.
Additional Relevant Art
The prior art made of record is considered pertinent to applicant’s disclosure and is recorded on Form PTO-892. Applicant is required under 37 C.F.R. § 1.111 (c) to consider these references fully when responding to this action, with particular attention paid to:
Cayrol et al, Fuzzy pattern matching”, Kybernetes, 1982, pp.103-116 [hereafter Cayrol] shows member function evaluation for pattern matching.
Wang et al., “QoS-aware web services selection with intuitionistic fuzzy set under consumer’s vague perception”, Expert system with applications 36 (2009) 4460-4466 [hereafter Wang] shows selection of optimal solution using evaluation functions.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to TSU-CHANG LEE whose telephone number is 571-272-3567. The fax number is 571-273-3567.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Omar Fernandez Rivas, can be reached 571-272-2589.
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/TSU-CHANG LEE/
Primary Examiner, Art Unit 2128
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