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 in the application.
Claim Objections
Claims 8, 18 and 20 are objected to because of the following informalities: “wherein the accessing the historical usage data associated with the application” should read --wherein the accessing the historical usage data by the application-- in light of the amendment to independent claims 1, 16 and 19. Appropriate correction is required.
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.
Claim 1 is rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more. The claim(s) recite(s) the limitations of a method of performing a data transfer comprising “determining…a disruptive event is to be performed…” and “determining…an optimal time window for the disruptive event to be performed” which are processes that can be perform in the mind. The limitations encompass a human mind carrying out the function through observation, evaluation, judgment and /or opinion, or even with the aid of pen and paper, therefore, it falls within the “Mental Processes” grouping of abstract ideas.
This judicial exception is not integrated into a practical application. In particular, the claim recite the following additional elements of “by an application management system” in performing various processes are recited so generically that they represent not more than mere instructions to apply the exception using or on a generic computing system and performing generic computer function. The “accessing…historical usage data …” 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 because it does not impose any meaningful limits on practicing the abstract idea, the claim is therefore directed to the judicial exception. See MPEP 2106.05(g).
The claim 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 an application management system” in performing various processes are recited so generically that they represent not more than mere instructions to apply the exception using or on a generic computing system and performing generic computer function, and as to the “accessing…historical usage data …” the courts have identified mere data gathering as well-understood, routine and conventional activities. See MPEP 2106.05(d). Accordingly, the claim is not patent eligible under 35 USC 101.
As to claims 2-5, 9-10 and 13-14, the claims recite additional/further defining the mental process of determining which are rejected for the same reason as claim 1 above.
Claim 6 do not recite any mental process, however, the additional elements recited in the claim merely described in generic terms the “disruptive event” thus are considered to merely apply the abstract idea which is neither a practical application under prong 2, or amount to significantly more under step 2B.
Claim 7 do not recite any mental process, however, the additional elements recited in the claim merely described in generic terms the “historical usage data” thus are considered to merely apply the abstract idea which is neither a practical application under prong 2, or amount to significantly more under step 2B.
As to claims 8 and 11, the claims recite additional data gathering/transmission, which are rejected for the same reason as claim 1 above.
As to claim 12, this claim does not recite any mental process, however, the additional elements recited in this claim initiate the performing of the disruptive event, which is considered to merely apply the abstract idea which is neither a practical application under prong 2, or amount to significantly more under step 2B.
Claim 15 do not recite any mental process, however, the additional elements recited in the claim merely described in generic terms the “disruptive event” thus are considered to merely apply the abstract idea which is neither a practical application under prong 2, or amount to significantly more under step 2B.
As to claim 16, this claim is rejected for the same rationale as claim 1 above. Additionally, the claims recite the additional element of “memories” and “processor(s)” which are merely generic computer components, thus is neither a practical application under prong 2, or amount to significantly more under step 2B.
As to claims 17-18, these claims are rejected for the same reason as claims 7-8 above.
As to claim 19, this claim is rejected for the same rationale as claim 1 above. Additionally, the claims recite the additional element of “computer-readable medium” and “processor(s)” which are merely generic computer components, thus is neither a practical application under prong 2, or amount to significantly more under step 2B.
As to claim 20, this claim is rejected for the same reason as claim 18 above.
Claim Rejections - 35 USC § 112
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.
Claim 7 is 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 applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention. More specifically, it is unclear whether IOPS performed by a cluster in which the application is deployed or IOPS performed with respect to a storage system associated with the application is inclusive of at least one or more IOPS performed by the application since claim 7 depends on claim 1 in which historical usage data is representative of at least historical usage of resources by the application. For examination purpose, the limitations of “IOPS performed by a cluster” and “IOPS performed with respect to a storage system” are treated as inclusive of at least one or more IOPS performed by the application for the remainder of this office action.
As to claim 17, this claim is rejected for the same reason as claim 7 above.
Allowable Subject Matter
Claims 1-20 are allowable by overcoming the 35 U.S.C. 101 and/or 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph above.
Response to Arguments
Applicant's arguments filed 4/20/26 have been fully considered but they are not persuasive.
In the remarks, Applicant argued in substance that:
a. The language of the claims as presently recited clearly indicates that the subject matter of each of the claims is not directed to an abstract idea. In addition, the claims are directed to statutory subject matter for at least the same reasons that the claims are patentable over the cited art…Even if the claims do involve an abstract idea, which Applicant does not concede, each claim recites significantly more than an abstract idea and is more than a mere instruction to apply the abstract idea on a generic computer.
Examiner respectfully traversed Applicant's remarks:
a. As to point (a), the examiner respectfully disagrees and submits that the examiner’s analysis of the claim limitations of claim 1, as an example clearly recite an abstract idea of a mental process. Applicant is reminded that the analysis of subject matter eligibility is based on claim limitations and not applicant’s teaching in the specification or differences over the cited prior art. Applicant failed to indicate why the steps of “determining…a disruptive event is to be performed…” and “determining…an optimal time window for the disruptive event to be performed” in the context of the claim do not encompass performing manual evaluation in the mind. Therefore applicant’s argument is not persuasive. Furthermore, the judicial exception is not integrated into a practical application. In particular, the claim only recite the additional elements of “by an application management system” in performing various processes and are recited so generically that they represent no more than mere instructions to apply the exception using or on a generic computing system and performing generic computer function. The “accessing…historical usage data …” 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 because it does not impose any meaningful limits on practicing the abstract idea, the claim is therefore directed to the judicial exception. (Note: execution by specific component(s) of specific computing environment/system that carry out/initiate the execution of the disruptive event with respect to an application as a result of the determinations which would impose a meaningful limit to the judicial exception are not explicitly claimed or performed). The claim does 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 element of using or on a generic computing system such as that of an application management system in carrying out the various processes are recited to generically that they represent not more than mere instructions to apply the exception using or on a generic computing system and performing generic computer function, and as to the “accessing…historical usage data …” the courts have identified mere data gathering as well-understood, routine and conventional activities. Therefore applicant’s argument is not persuasive.
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 extension fee 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 QING YUAN WU whose telephone number is (571)272-3776. The examiner can normally be reached M-F 9AM-6PM EST.
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/QING YUAN WU/Primary Examiner, Art Unit 2199
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