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
Status of Claims
The following is a Final Office Action in response to Applicant’s amendment received 07/22/2025.
In accordance with Applicant’s amendment, claims 1, 3, and 7-10 are amended and claim 2 is canceled. Claims 1 and 3-10 are currently pending.
Response to Amendment
Applicant’s amendment necessitated the new ground(s) of rejection set forth in this Office Action.
The 35 U.S.C. 112(f) claim interpretation (means-plus-function) applied to the various units recited in claims 1-4 and 7-10 is no longer applicable because the claims have been amended in a manner that no longer invokes §112(f).
The 35 U.S.C. §112(a) and §112(b) rejections of claims 1-10 are withdrawn in response to applicant’s amendment, however a new ground of §112(b) rejection is applied to claim 9 below, which was necessitated by the amendment.
At page 7 of the submission filed on 07/22/2025, applicant indicates there is an amendment to the Specification and requests to “Please change the title to: COMPUTING DEVICE, AND COMPUTING METHOD,” however the title has not been amended, but is identical to the original title in the application. Accordingly, the objection to the title is maintained below.
Response to Arguments
Response to §101 arguments: Applicant’s arguments (Remarks at pgs. 10-13) concerning the §101 rejection of claims 1-10 have been considered, but are not persuasive.
Applicants first argues that “The claims are directed to online computing and improvements in burst processing” and “improvements in computing technology itself” (Remarks at pg. 10). The Examiner respectfully disagrees.
In response, it is first noted that applicant’s argument relies on features not actually recited or required by the claims. For example, the claims do not recite or require “online” implementation. Notably, the claims do not recite or require any form of “online” execution, architecture, or the like. See Superguide Corp. v. DirecTV Enterprises, Inc., 358 F.3d 870, 875, 69 USPQ2d 1865, 1868 (Fed. Cir. 2004). See also, CollegeNet, Inc. v. Apply Yourself Inc., 418 F.3d 1225, 1231 (Fed. Cir. 2005) (while the specification can be examined for proper context of a claim term, limitations from the specification will not be imported into the claims). With respect to “burst processing,” the claims have not been shown to yield a technical improvemetn to “burst processing,” but instead merley invoke a generic computer to determine whether a job can be completed within a time frame, store an instanc list, and identify an instance that allows the job to be completed within the time frame and that achieves the lowest cost, for all the batch jobs in the job list, which are activities that fall under the scope of the abstract idea itself because these steps, but for the generic computer implementation (storage device, one or more processors, computing unit), these activities could be implemented mentally such as via human evaluation, judgment, or opinion, perhaps with the aid of pen and paper. Merely identifying an instance that satisfies the specified criteria, i.e., completion time frame and lowest cost, does not amount to a technical improvement to the generic computing elements or to burst processing.
In response to Applicant’s reliance on the CAFC’s BASCOM decision (Remarks at pg. 11), the Examiner emphasizes that the Federal Circuit found that the claims in BASCOM amounted to a “non-conventional and non-generic arrangement” of the additional elements, including installation of a filtering tool at a specific location, remote from end-users, with customizable filtering features specific to each end user. However, Applicant’s claims do not include similar additional elements or a non-conventional arrangement of the additional elements, instead relying on a general purpose computing elements (computing device, storage device, one or more processors and one or more non-transitory computer-readable storage media, the non-transitory computer-readable storage media having stored thereon, and computing unit), such that, whether considered individually and as an ordered combination, the claims have not been shown to yield an improvement to the generic computing device, storage device, processor, computing unit, or any other technology. Therefore, Applicant’s reliance on the rationale set forth in the BASCOM decision is not persuasive.
For the reasons above along with the reasons set forth below in the updated §101 rejection, the amendments and arguments are not sufficient to overcome the §101 rejection.
Specification
The Title of the invention is objected to for the following reason: The title of the invention, which is currently recited as “COMPUTING DEVICE, AND COMPUTING METHOD,” is not descriptive. A new title is required that is clearly indicative of the invention to which the claims are directed.
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 9 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 pre-AIA the applicant regards as the invention.
Claim 9 recites, in part, The computing device according to claim [[2]], wherein…,” however the claim scope is indefinite because dependent claim 9 fails to identify the parent claim from which claim 9 depends. For purposes of examination, claim 9 will be interpreted as depending from claim 1. 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.
Claims 1 and 3-10 are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-patentable subject matter. The claims are directed to an abstract idea without significantly more.
Claims 1 and 3-10 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more. The judicial exception is not integrated into a practical application. The claims do include additional elements that are sufficient to amount to significantly more than the judicial exception. The eligibility analysis in support of these findings is provided below, in accordance with the subject matter eligibility guidance set forth in MPEP 2106.
With respect to Step 1 of the eligibility inquiry (as explained in MPEP 2106.03), it is first noted that the claimed computer device (claims 1 and 3-9) and method (claim 10) are each directed to a potentially eligible category of subject matter (i.e., machine and process, respectively). Accordingly, claims 1-0 satisfy Step 1 of the eligibility inquiry.
With respect to Step 2A Prong One of the eligibility inquiry (as explained in MPEP 2106.04), it is next noted that the claims recite an abstract idea that falls under the “Mental Processes” abstract idea grouping by setting forth activities that, but for the generic computer implementation, could be performed in the human mind (e.g., observation, evaluation, judgment, or opinion), such as with the aid of pen and paper. The limitations reciting the abstract idea, as set forth in independent claim 1 are identified in bold text below, whereas the additional elements are presented in plain text and are separately evaluated under Step 2A Prong Two and Step 2B:
computing device comprising: a storage device that stores a job list (The storing of a job list, but for the generic computer implementation, could be implemented as mental activity such as via human observation, evaluation, judgment, or opinion, including with the aid of pen/paper to write a list of jobs. In addition, the “stores” activity is considered as insignificant extra-solution activity, which is not enough to amount to a practical application (MPEP 2106.05(g)), and such extra-solution data gathering activity has also been recognized as well-understood, routine, and conventional, and thus insufficient to add significantly more to the abstract idea. See MPEP 2106.05(d) - Receiving or transmitting data over a network, e.g., using the Internet to gather data, Symantec, 838 F.3d at 1321, 120 USPQ2d at 1362 (utilizing an intermediary computer to forward information); TLI Communications LLC v. AV Auto. LLC, 823 F.3d 607, 610, 118 USPQ2d 1744, 1745 (Fed. Cir. 2016) (using a telephone for image transmission); OIP Techs., Inc., v. Amazon.com, Inc., 788 F.3d 1359, 1363, 115 USPQ2d 1090, 1093 (Fed. Cir. 2015) (sending messages over a network); buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355, 112 USPQ2d 1093, 1096 (Fed. Cir. 2014) (computer receives and sends information over a network)); and
one or more processors and one or more non-transitory computer-readable storage media, the non-transitory computer-readable storage media having stored thereon (These are additional elements evaluated below under Step 2A Prong Two and Step 2B) at least:
a computing unit that performs a computation related to an instance capable of executing burst processing by consuming credits (The computation, but for the generic computer implementation, could be implemented as mental activity such as via human evaluation, judgment, or opinion, such as by estimating or calculating an amount of time related to the processing), wherein
the job list is a list of batch jobs (The list of jobs, but for the generic computer implementation, could be implemented as mental activity such as via human evaluation, judgment, or opinion, such as be listing the jobs with the aid of pen/paper),
the batch jobs include a plurality of combinations of a time frame and data regarding a size of a job, the time frame being set as a combination of a time point at which execution of the job can be started and a time point at which the job should have been completed (The descriptive details of the batch jobs in this limitation, but for the generic computer implementation, could provide the details of the time frame and size via human mental activity such as via human evaluation, judgment, or opinion, such as with the aid of pen/paper),
the burst processing is processing of the job at a speed exceeding a baseline but not exceeding a maximum speed, the baseline being a processing speed of the job that can always be attained (The descriptive details related to burst processing, but for the generic computer implementation, could be provided via human mental activity such as via human evaluation, judgment, or opinion, such as with the aid of pen/paper), and
the computing unit determines whether or not the job can be completed within the time frame, for the batch jobs in the job list (The “determines” step, but for the generic computer implementation, could be provided via human mental activity such as via human evaluation, judgment, or opinion, such as with the aid of pen/paper, e.g., a human opinion as to whether or not the batch jobs can be completed in the time frame, such as via a simple “yes” or “no” indication);
the storage device further stores an instance list, the instance list includes, for each instance, the baseline, the maximum speed, a maximum balance of the credits, and a cost required to use a corresponding instance (The “stores” step, but for the generic computer implementation with a storage device, could be implemented via human mental activity such as via human evaluation, judgment, or opinion, such as by storing the instance list of the instances with the aid of pen/paper), and
the computing unit identifies an instance that allows the job to be completed within the time frame and that achieves the lowest cost, for all the batch jobs in the job list (The “identifies” step, but for the generic computer implementation, could be implemented via human mental activity such as via human evaluation, judgment, or opinion, such as with the aid of pen/paper, e.g., a human being evaluating identifying the instance meeting the specified criteria, i.e., completion time frame and lowest cost).
Claim 10 is directed to a method and recites substantially similar limitations as those set forth in claim 1 and discussed above, and has therefore been determined to recite the same abstract idea as claim 1.
With respect to Step 2A Prong Two of the eligibility inquiry (as explained in MPEP 2106.04(d)), the judicial exception is not integrated into a practical application. Independent claims 1 and 10 recite the additional elements of computing device, storage device, one or more processors and one or more non-transitory computer-readable storage media, the non-transitory computer-readable storage media having stored thereon, and computing unit. The additional elements have been evaluated, but fail to integrate the abstract idea into a practical application because they amount to using generic computing elements or instructions (software) to perform the abstract idea, similar to adding the words “apply it” (or an equivalent), which merely serves to link the use of the judicial exception to a particular technological environment (generic computing environment). See MPEP 2106.05(f) and 2106.05(h). Even if the activity for storing of a job list or instance list is interpreted as an additional element, this activity at most amounts to insignificant extra-solution activity, which is not indicative of a practical application, as noted in MPEP 2106.05(g). In addition, these limitations fail to provide an improvement to the functioning of a computer or to any other technology or technical field, fail to apply the exception with a particular machine, fail to apply the judicial exception to effect a particular treatment or prophylaxis for a disease or medical condition, fail to effect a transformation of a particular article to a different state or thing, and fail to apply/use the abstract idea in a meaningful way beyond generally linking the use of the judicial exception to a particular technological environment.
Accordingly, because the Step 2A Prong One and Prong Two analysis resulted in the conclusion that the claims are directed to an abstract idea, additional analysis under Step 2B of the eligibility inquiry must be conducted in order to determine whether any claim element or combination of elements amount to significantly more than the judicial exception.
With respect to Step 2B of the eligibility inquiry (as explained in MPEP 2106.05), it has been determined that the claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception. Independent claims 1 and 10 recite the additional elements of computing device, storage device, one or more processors and one or more non-transitory computer-readable storage media, the non-transitory computer-readable storage media having stored thereon, and computing unit. The additional elements have been evaluated, but fail to add significantly more to the claims because they amount to using generic computing elements or instructions/software to perform the abstract idea. See, e.g., Fig. 2 and Spec. at pars. [0015] – [0016], describing a “general-purpose computer” for implementing the invention, which merely serves to tie the abstract idea to a particular technological environment (generic computing environment), similar to adding the words “apply it” (or an equivalent), which merely serves to link the use of the judicial exception to a particular technological environment (generic computing environment) and does not amount to significantly more than the abstract idea itself. See, e.g., Alice Corp., 134 S. Ct. 2347, 110 USPQ2d 1976; Versata Dev. Group, Inc. v. SAP Am., Inc., 793 F.3d 1306, 1334, 115 USPQ2d 1681, 1701 (Fed. Cir. 2015).
Even if the storing of a job list or instance list activity is interpreted as an additional element, this activity nevertheless amount to insignificant extra-solution data gathering or output activity, which has been recognized as well-understood, routine, and conventional, and thus insufficient to add significantly more to the abstract idea. See MPEP 2106.05(d) - Receiving or transmitting data over a network, e.g., using the Internet to gather data, Symantec, 838 F.3d at 1321, 120 USPQ2d at 1362 (utilizing an intermediary computer to forward information); TLI Communications LLC v. AV Auto. LLC, 823 F.3d 607, 610, 118 USPQ2d 1744, 1745 (Fed. Cir. 2016) (using a telephone for image transmission); OIP Techs., Inc., v. Amazon.com, Inc., 788 F.3d 1359, 1363, 115 USPQ2d 1090, 1093 (Fed. Cir. 2015) (sending messages over a network); buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355, 112 USPQ2d 1093, 1096 (Fed. Cir. 2014) (computer receives and sends information over a network).
In addition, when taken as an ordered combination, the ordered combination adds nothing that is not already present as when the elements are taken individually. There is no indication that the combination of elements integrate the abstract idea into a practical application. Their collective functions merely provide generic computer implementation. Therefore, when viewed as a whole, these additional claim elements do not provide meaningful limitations to transform the abstract idea into a practical application of the abstract idea or that, as an ordered combination, amount to significantly more than the abstract idea itself.
Dependent claims 3-9 recite the same abstract idea as recited in the independent claims, and have been determined to recite further details/activities falling under the “mental processes” abstract idea grouping, such as by describing features that can be implemented with human observation, evaluation, judgment, or opinion. With respect to the visualization unit (claim 7) and a change command unit (claim 9), these additional elements are not described as requiring anything more than a generic computing device to implement (Spec. at pars. 12-13). If the visualization unit is intended to involve a user interface or graphical representation via a user interface (which is not clear), at most this would involve a user interface of a generic computer to create the visualization diagram in claim 7, which is insufficient for eligibility. See, e.g., Affinity Labs of Texas LLC v. DirecTV LLC, 838 F.3d 1253, 1257-1258 (Fed. Cir. 2016) (mere recitation of a GUI does not make a claim patent-eligible); Intellectual Ventures I LLC v. Capital One Bank, 792 F.3d 1363, 1370 (Fed. Cir. 2015) (“the interactive interface limitation is a generic computer element”). The ordered combination of elements in the dependent claims (including the limitations inherited from the parent claim(s)) add nothing that is not already present as when the elements are taken individually. There is no indication that the combination of elements improves the functioning of a computer or improves any other technology. Their collective functions merely provide generic computer implementation. Accordingly, the subject matter encompassed by the dependent claims fails to amount to a practical application or significantly more than the abstract idea itself.
Allowable over the prior art
Claims 1 and 3-10 are allowable over the prior art. The closest prior art reference of record, Jamjoom et al. (US 2014/0344814), is directed to scheduling homogeneous and heterogeneous workloads with runtime elasticity in a parallel processing environment. Jamjoom et al. and the other prior art of record teach several features recited in independent claims 1/10, including a computing unit that performs a computation related to an instance capable of executing burst processing by consuming credits, wherein the job list is a list of batch jobs, the batch jobs include a plurality of combinations of a time frame and data regarding a size of a job, the time frame being set as a combination of a time point at which execution of the job can be started and a time point at which the job should have been completed, the burst processing is processing of the job at a speed exceeding a baseline but not exceeding a maximum speed, the baseline being a processing speed of the job that can always be attained, and the computing unit determines whether or not the job can be completed within the time frame, for the batch jobs in the job list (See NF OA mailed 05/19/2025 for prior art citations addressing the above-noted limitations). However, Jamjoom et al. and the other prior art references of record do not teach the storage device further stores an instance list, the instance list includes, for each instance, the baseline, the maximum speed, a maximum balance of the credits, and a cost required to use a corresponding instance, and the computing unit identifies an instance that allows the job to be completed within the time frame and that achieves the lowest cost, for all the batch jobs in the job list, as recited by independent claim 1 and as similarly encompassed by independent claim 10, thereby rendering claims 1/10 and dependent claims 3-9 as allowable over the prior art. These claims are not allowed, however, because they stand rejected under 35 USC §101 (claims 1 and 3-10) and §112(b) (claim 9), as discussed above.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure:
L. g. A. Sung and J. W. Wong, "Autonomic Resource Management for a Cluster that Executes Batch Jobs," 2006 IEEE International Conference on Cluster Computing, Barcelona, Spain, 2006, pp. 1-10: discloses heuristic algorithms for dynamic resource allocation in a server cluster.
G. Capannini, R. Baraglia, D. Puppin, L. Ricci and M. Pasquali, "A job scheduling framework for large computing farms," SC '07: Proceedings of the 2007 ACM/IEEE Conference on Supercomputing, Reno, NV, USA, 2007, pp. 1-10: discloses a convergent scheduling of a continuous stream of batch jobs in order to optimize usage of hardware and software resources while respecting deadline requirements of jobs.
Joseph Y.-T. Leung, C.T. Ng, T.C. Edwin Cheng, Minimizing sum of completion times for batch scheduling of jobs with deteriorating processing times, European Journal of Operational Research, Volume 187, Issue 3, 16 June 2008, Pages 1090-1098: discloses techniques for optimizing scheduling of batch jobs given a set of constraints.
Gnanasambandam et al. (US 2012/0057191): discloses features for automatically handling document processing workload, including estimation techniques that can select which jobs in a queue have to be burst out if needed (at least par. 9) and a cloud-burst engine that controls location and slack regarding parallel execution (at least par. 39).
Lau et al. (US Patent No. 10,075,520): discloses distributed aggregation of real-time metrics for large scale distribution systems, including synchronized bursts and batch metric reports.
Siebel et al. (US 2017/0006135): discloses batch analytics processing for improving performance and reliability of processing-intensive tasks (at least par. 235).
Sandstrom (US 2013/0117168): discloses features for maximizing throughput of multi-user parallel data processing systems, including capability to burst up to the full system core capacity (par. 110).
Wan et al. (US 2022/0179769): discloses features for estimating cloud resources for batch processing, including cloud bursting for load-balancing between clouds (par. 87).
Ishiguro et al. (US 2007/0220516): discloses a program/apparatus/method for distributing batch job in multiple server environment according to monitored load, status, and performance of servers executing batch jobs (pars. 31-36, 38, and 89).
Plancarte et al. (US 2010/0162245): discloses batch job processing architecture that optimizes parallelism execution of batch jobs by, inter alia, creating/distributing tasks based on the amount of processing power available locally or across batch servers (at least par. 4).
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any 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 date of this final action.
Any inquiry of a general nature or relating to the status of this application or concerning this communication or earlier communications from the Examiner should be directed to Timothy A. Padot whose telephone number is 571.270.1252. The Examiner can normally be reached on Monday-Friday, 8:30 - 5:30. If attempts to reach the examiner by telephone are unsuccessful, the Examiner’s supervisor, Brian Epstein can be reached at 571.270.5389. The fax phone number for the organization where this application or proceeding is assigned is 571- 273-8300.
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/TIMOTHY PADOT/
Primary Examiner, Art Unit 3625
08/14/2025