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 .
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.
Claims 8-9 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 applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 8 recites the limitation “the environment scaling factor” in line 3. There is insufficient antecedent basis for this limitation in the claim.
Claim 9 recites the limitation “the environment scaling factor” in line 7. There is insufficient antecedent basis for this limitation in the claim.
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 non-statutory subject matter.
Step 1:
According to the first part of the analysis, in the instant case, claims 1-9 is directed to an apparatus comprising: a non-transient computer-readable storage medium having executable instructions embodied thereon; and one or more hardware processors configured to execute the instructions to perform the steps, claims 10-18 is directed to a processor-implemented method, and claims 19-20 is directed to a non-transient computer-readable storage medium having instructions embodied thereon, the instructions being executable by one or more processors to perform a method. Thus, each of the claims falls within one of the four statutory categories (i.e. process, machine, manufacture, or composition of matter).
Regarding claim 10:
A processor-implemented method of managing software application performance, the method comprising:
obtaining, by a processor, an initial set of resource parameters for a software application, the initial set of resource parameters corresponding to the software application processing an initial amount of resource requests;
determining, by the processor and using a test environment, performance parameters for the software application based on observed performance parameters in a production environment;
determining, by the processor and using a data model, a revised set of resource parameters for the software application to process a revised amount of resource requests greater than the initial amount of resource requests; and
dynamically generating, by the processor, a resource recommendation display comprising a plurality of resource recommendation options based on the determined revised set of resource parameters.
Step 2A Prong 1:
“obtaining, by a processor, an initial set of resource parameters for a software application, the initial set of resource parameters corresponding to the software application processing an initial amount of resource requests” is directed to mental step of collecting data.
“determining, by the processor and using a test environment, performance parameters for the software application based on observed performance parameters in a production environment” is directed to math because mathematics is used to compare results from the test environment with those from the production environment, often using statistical skill tests and distance metrics to ensure the test environment is representative and the results are statistically similar.
“determining, by the processor and using a data model, a revised set of resource parameters for the software application to process a revised amount of resource requests greater than the initial amount of resource requests” is directed to mental step of analyzing data.
Each limitation recites in the claim is a process that, under BRI covers performance of the limitation in the mind but for the recitation of a generic “parameters” which is a mere indication of the field of use. Nothing in the claim elements precludes the steps from practically being performed in the mind. Thus, the claim recites a mental process.
Further, the claim recites the step of "determining, by the processor and using a test environment, performance parameters for the software application based on observed performance parameters in a production environment” which as drafted, under BRI recites a mathematical calculation. The grouping of "mathematical concepts” in the 2019 PEG includes "mathematical calculations" as an exemplar of an abstract idea. 2019 PEG Section |, 84 Fed. Reg. at 52. Thus, the recited limitation falls into the "mathematical concept" grouping of abstract ideas. This limitation also falls into the “mental process” group of abstract ideas, because the recited mathematical calculation is simple enough that it can be practically performed in the human mind, e.g., scientists and engineers have been solving the Arrhenius equation in their minds since it was first proposed in 1889.
Note that even if most humans would use a physical aid (e.g., pen and paper, a slide rule, or a calculator) to help them complete the recited calculation, the use of such physical aid does not negate the mental nature of this limitation. See October Update at Section I(C)(i) and (iii).
Additional Elements:
Step 2A Prong 2:
“A processor-implemented method of managing software application performance, the method comprising:” recited in the preamble does not integrate the judicial exception into a practical application. This additional element is merely using a computer as a tool to perform an abstract idea (see MPEP 2106.05(h)).
“obtaining, by a processor, an initial set of resource parameters for a software application, the initial set of resource parameters corresponding to the software application processing an initial amount of resource requests” does not integrate the judicial exception into a practical application. This additional element is merely using a computer as a tool to perform an abstract idea (see MPEP 2106.05(h)).
“determining, by the processor and using a test environment, performance parameters for the software application based on observed performance parameters in a production environment” does not integrate the judicial exception into a practical application. This additional element is merely using a computer as a tool to perform an abstract idea (see MPEP 2106.05(h)).
“determining, by the processor and using a data model, a revised set of resource parameters for the software application to process a revised amount of resource requests greater than the initial amount of resource requests” does not integrate the judicial exception into a practical application. This additional element is merely using a computer as a tool to perform an abstract idea (see MPEP 2106.05(h)).
“dynamically generating, by the processor, a resource recommendation display comprising a plurality of resource recommendation options based on the determined revised set of resource parameters” is directed to insignificant activity and does not integrate the judicial exception into a practical application. See MPEP 2106.05(g).
The claim is merely collecting data, manipulating or analyzing the data using math and mental process, and displaying the results.
This is similar to electric power: MPEP 2106.05(h) vi. Limiting the abstract idea of collecting information, analyzing it, and displaying certain results of the collection and analysis to data related to the electric power grid, because limiting application of the abstract idea to power-grid monitoring is simply an attempt to limit the use of the abstract idea to a particular technological environment, Electric Power Group, LLC v. Alstom S.A., 830 F.3d 1350, 1354, 119 USPQ2d 1739, 1742 (Fed. Cir. 2016).
Whether the claim invokes computers or other machinery merely as a tool to perform an existing process. Use of a computer or other machinery in its ordinary capacity for economic or other tasks (e.g., to receive, store, or transmit data) or simply adding a general purpose computer or computer components after the fact to an abstract idea (e.g., a fundamental economic practice or mathematical equation) does not integrate a judicial exception into a practical application or provide significantly more. See Affinity Labs v. DirecTV, 838 F.3d 1253, 1262, 120 USPQ2d 1201, 1207 (Fed. Cir. 2016) (cellular telephone); TLI Communications LLC v. AV Auto, LLC, 823 F.3d 607, 613, 118 USPQ2d 1744, 1748 (Fed. Cir. 2016) (computer server and telephone unit). Similarly, "claiming the improved speed or efficiency inherent with applying the abstract idea on a computer" does not integrate a judicial exception into a practical application or provide an inventive concept. Intellectual Ventures I LLC v. Capital One Bank (USA), 792 F.3d 1363, 1367, 115 USPQ2d 1636, 1639 (Fed. Cir. 2015). In contrast, a claim that purports to improve computer capabilities or to improve an existing technology may integrate a judicial exception into a practical application or provide significantly more. McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299, 1314-15, 120 USPQ2d 1091, 1101-02 (Fed. Cir. 2016); Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335-36, 118 USPQ2d 1684, 1688-89 (Fed. Cir. 2016). See MPEP §§ 2106.04(d)(1) and 2106.05(a) for a discussion of improvements to the functioning of a computer or to another technology or technical field.
The claim as a whole does not meet any of the following criteria to integrate the judicial exception into a practical application:
An additional element reflects an improvement in the functioning of a computer, or an improvement to other technology or technical field;
an additional element that applies or uses a judicial exception to effect a particular treatment or prophylaxis for a disease or medical condition;
an additional element implements a judicial exception with, or uses a judicial exception in conjunction with, a particular machine or manufacture that is integral to the claim;
an additional element effects a transformation or reduction of a particular article to a different state or thing; and
an additional element applies or uses the judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment, such that the claim as a whole is more than a drafting effort designed to monopolize the exception.
Step 2B:
“A processor-implemented method of managing software application performance, the method comprising:” recited in the preamble does not amount to significantly more than the judicial exception in the claim. This additional element is merely using a computer as a tool to perform an abstract idea (see MPEP 2106.05(h)).
“obtaining, by a processor, an initial set of resource parameters for a software application, the initial set of resource parameters corresponding to the software application processing an initial amount of resource requests” does not amount to significantly more than the judicial exception in the claim. This additional element is merely using a computer as a tool to perform an abstract idea (see MPEP 2106.05(h)).
“determining, by the processor and using a test environment, performance parameters for the software application based on observed performance parameters in a production environment” does not amount to significantly more than the judicial exception in the claim. This additional element is merely using a computer as a tool to perform an abstract idea (see MPEP 2106.05(h)).
“determining, by the processor and using a test environment, performance parameters for the software application based on observed performance parameters in a production environment” does not amount to significantly more than the judicial exception in the claim. This additional element is merely using a computer as a tool to perform an abstract idea (see MPEP 2106.05(h)).
“dynamically generating, by the processor, a resource recommendation display comprising a plurality of resource recommendation options based on the determined revised set of resource parameters” is directed to insignificant activity and does not amount to significantly more than the judicial exception in the claim. See MPEP 2106.05(g) and 2106.05(d)(ii), third list, (iv).
The claim is therefore ineligible under 35 USC 101.
Claim 1 is similar to claim 10 but recites An apparatus configured for managing software application performance, the apparatus comprising: a non-transient computer-readable storage medium having executable instructions embodied thereon; and one or more hardware processors configured to execute the instructions to perform the steps as in claim 10. These additional elements fail to integrate the abstract idea into a practical application. These limitations are recited at a high level of generality and do not add significantly more to the judicial exception. These elements are generic computing devices that perform generic functions. Using generic computer elements to perform an abstract idea does not integrate an abstract idea into a practical application. See 2019 Guidance, 84 Fed. Reg. at 55. Moreover, “the mere recitation of a generic computer cannot transform a patent-ineligible abstract idea into a patent-eligible invention.” Alice, 573 U.S. at 223; see also FairWarninglP, LLCv. latric SysInc., 839 F.3d 1089, 1096 (Fed. Cir. 2016) (citation omitted) (“[T]he use of generic computer elements like a microprocessor or user interface do not alone transform an otherwise abstract idea into patent-eligible subject matter”).
On the record before us, we are not persuaded that the hardware of claim 1 integrates the abstract idea into a practical application. Nor are we persuaded that the additional elements are anything more than well-understood, routine, and conventional so as to impart subject matter eligibility to claim 1.
Claim 19 cites a non-transient computer-readable storage medium having instructions embodied thereon, the instructions being executable by one or more processors to perform a method for managing software application performance, the method comprising the steps as in claim 10. This amounts to nothing more than instructions to implement the abstract idea on a computer, which fails to integrate the abstract idea into a practical application. See 2019 Guidance, 84 Fed. Reg. at 55. Additionally, using instructions to implement an abstract idea on a generic computer “is not ‘enough’ to transform an abstract idea into a patent-eligible invention.” Alice, 573 U.S. at 226. Therefore, the rejection of claim 19 for the same reason discussed above with regard to the rejection of claim 10.
Regarding claims 2 and 11, “dynamically generate the resource recommendation display comprising a plurality of mutually exclusive resource recommendation options” does not integrate the judicial exception into a practical application. It does not amount to significantly more than the judicial exception in the claim. This additional element is merely using a computer as a tool to perform an abstract idea (see MPEP 2106.05(h)).
Regarding claims 3 and 12, “dynamically generate, as part of the resource recommendation display, benefit indications and drawback indications associated with the plurality of resource recommendation options” does not integrate the judicial exception into a practical application. It does not amount to significantly more than the judicial exception in the claim. This additional element is merely using a computer as a tool to perform an abstract idea (see MPEP 2106.05(h)).
Regarding claims 4 and 13, “determine, by the apparatus and using the data model, first and second revised sets of resource parameters for the software application to process the revised amount of resource requests; and dynamically generate, by the apparatus, the plurality of resource recommendation options comprising a first resource recommendation option based on the determined first revised set of resource parameters, and a second resource recommendation option based on the determined second revised set of resource parameters” does not integrate the judicial exception into a practical application. It does not amount to significantly more than the judicial exception in the claim. This additional element is merely using a computer as a tool to perform an abstract idea (see MPEP 2106.05(h)).
Regarding claims 5 and 14, “dynamically generate, as part of the resource recommendation display, benefit indications and drawback indications associated with the plurality of resource recommendation options” does not integrate the judicial exception into a practical application. It does not amount to significantly more than the judicial exception in the claim. This additional element is merely using a computer as a tool to perform an abstract idea (see MPEP 2106.05(h)).
Regarding claims 6 and 15, “dynamically generate, as part of the resource recommendation display, indications of infrastructure capacity, resource use and application responsiveness based on the revised amount of resource requests” does not integrate the judicial exception into a practical application. It does not amount to significantly more than the judicial exception in the claim. This additional element is merely using a computer as a tool to perform an abstract idea (see MPEP 2106.05(h)).
Regarding claims 7 and 16, “modify, by the apparatus and based on an environment scaling factor, one or more test environment parameters associated with the test environment to calibrate the test environment to more accurately emulate the production environment” is directed to math because modifying test environment parameters using an apparatus and an environment scaling factor to better approximate a production environment is a standard engineering and scientific principle rooted in applied mathematics and physics. Mathematical models and scaling criteria are used to determine the appropriate scaling factors and minimize "scaling distortion".
Regarding claims 8 and 17, “determine, by the apparatus and based on the environment scaling factor and a growth factor, a capacity associated with the revised set of resource parameters for the software application to process the revised amount of resource requests; and dynamically generate, by the apparatus, a software application capacity display based on the determined software application capacity” does not integrate the judicial exception into a practical application. It does not amount to significantly more than the judicial exception in the claim. This additional element is merely using a computer as a tool to perform an abstract idea (see MPEP 2106.05(h)).
Regarding claims 9 and 18, “obtain, by the apparatus, historical production data and test data for a plurality of resource parameters at a plurality of input load levels to produce a plurality of individual resource scaling factors at a plurality of load levels; and determine, by the apparatus, the environment scaling factor based on the plurality of individual resource scaling factors” is direct to math because mathematical and computational in nature, as calculating scaling factors and an environment factor from data necessarily involves statistical analysis, data processing, and algorithmic computation.
Hence the claims 1-20 are treated as ineligible subject matter under 35 U.S.C. § 101.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 1-6, 10-15, and 19-20 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Koch et al. (US 2023/0168992).
Regarding claims 1, 10, and 19, Koch et al. disclose an apparatus and computer implement method configured for managing software application performance, the apparatus comprising: a non-transient computer-readable storage medium having executable instructions embodied thereon; and one or more hardware processors configured to execute the instructions (abstract, para. [0006]) to:
obtain, by the apparatus, an initial set of resource parameters (virtual machines) for a software application, the initial set of resource parameters corresponding to the software application processing an initial amount of resource requests (e.g. para. [0034], [0046], [0047]).
determine, by the apparatus and using a test environment, performance parameters for the software application based on observed performance parameters in a production environment (e.g. para. [0045], [0048], [0049]: orchestrator 110 can return an action decision to adjust a software application performance impacting parameter value associated to a target software application of a target computing environment of computing environments 120A-120Z in dependence on the result of a test performed by testing process 112, in which the testing has comprised varying of a software application performance impacting parameter value impacting the performance of a software application running within a test environment);
determine, by the apparatus and using a data model, a revised set of resource parameters for the software application to process a revised amount of resource requests greater than the initial amount of resource requests (e.g. para. [0085]: Referring to Table B, low cost software application performance impacting parameter value adjustments such as increasing provisioning of a virtual machine can be assigned higher scores than relatively higher cost actions, such as re-hosting to a new physical machine computing node. Orchestrator 110 at action decision block 1105 can determine that a candidate software application parameter adjustment is to be implemented based on the scoring value under Eq. 1 exceeding threshold, e.g., a predetermined or dynamically determined threshold); and
dynamically generate, by the apparatus, a resource recommendation display comprising a plurality of resource recommendation options based on the determined revised set of resource parameters (e.g. para. [0131]: the system returns a report containing recommendations or configuration adjustments per computing environment and region, per context, along with an explanation on the parameters being adjusted, context variables, and results obtained).
Regarding claims 2 and 11, Koch et al. disclose dynamically generate the resource recommendation display comprising a plurality of mutually exclusive resource recommendation options (e.g. para. [0131]).
Regarding claims 3, 5, and 12, Koch et al. disclose dynamically generate, as part of the resource recommendation display, benefit indications and drawback indications associated with the plurality of resource recommendation options (e.g. para. [0096], [0131]).
Regarding claims 4, 14, and 20, Koch et al. disclose determine, by the apparatus and using the data model, first and second revised sets of resource parameters for the software application to process the revised amount of resource requests (para. [0048], [0049]); and dynamically generate, by the apparatus, the plurality of resource recommendation options comprising a first resource recommendation option based on the determined first revised set of resource parameters, and a second resource recommendation option based on the determined second revised set of resource parameters {para. [0050]: orchestrator 110 sending provisioning command data to a target computing environment. The provisioning command data can specify the adjusting of one or more software application performance impacting parameter value impacting the performance of a target software application running within a target computing environment of computing environments).
Regarding claims 6 and 13, Koch et al. disclose dynamically generate, as part of the resource recommendation display, indications of infrastructure capacity, resource use and application responsiveness based on the revised amount of resource requests (e.g. para. [0033], [0035]).
Regarding claim 15, Koch et al. disclose dynamically generating, by the processor and based on the data model, a suggested resource recommendation indicator indicating a preferred recommendation from among the displayed plurality of resource recommendation options (e.g. para. [0096], [0131]), wherein the data model comprises an extrapolation model that includes an artificial intelligence / machine learning dimension (para. [0026], [0040]: artificial intelligence (AI) software applications).
Other Prior Art
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure:
Wiener et al. (USP 10,733,087) disclose a computing system include a software application may be configured to improve the selection of software tests based on the performance parameters associated with a particular test. Namely, target performance parameters may be defined for each checkpoint or for a particular round of testing. The target performance parameters may indicate a target test execution time, a target code coverage of the software product, a target extent of resources (e.g., memory, processor cores, etc.) to be used in testing, and a target extent of parallelizability to be employed in execution of the selected software tests, among other target performance parameters. The software application may be configured to select a group of software tests that adhere to the target performance parameters, thus improving the amount of information gained regarding the quality of the source code update per unit of resources (e.g., time, energy, etc.) expanded to gain this information.
Thomas et al. (US 9,436,493) disclose a method comprising: under control of one or more computer systems configured with executable instructions, receiving a request to create a type of instance that includes software; detecting, by the software, resource parameters associated with the instance, wherein the resource parameters include information associated with a respective capacity of one or more computing resources to be utilized by the instance; and after detecting the resource parameters, creating the instance based at least in part on at least a portion of the detected resource parameters, wherein the instance includes an operating system and a software application; receive a request for modification of the instance; determining that the resource parameters associated with the instance have changed according to the request; and configuring the operating system and the software application based at least in part on the determination that the resource parameters have changed, wherein configuring the operating system and the software application comprises at least one of: (i) modifying a number of allowable concurrent connections to a web server, or (ii) modifying a number of allowable threads spawned by the operating system or the software application.
Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JOHN H LE whose telephone number is (571)272-2275. The examiner can normally be reached on Monday-Friday from 7:00am – 3:30pm Eastern Time.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Shelby A. Turner can be reached on (571) 272-6334. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JOHN H LE/Primary Examiner, Art Unit 2857