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 Objections
Claims 1-3, 5-10, and 12-20 are objected to because of the following informalities:
As per claim 1, “a first host”, ll5 should be “a first host from a plurality of hosts”. “a plurality of hosts”, ll7 should be “the plurality of hosts”. “at least one response”, ll8 should be “at least one first response”. “a response”, ll13 should be “a second response”.
As per claim 2, “the at least one response”, ll3 should be “the at least one first response”.
As per claim 3, “the at least one response”, ll2 should be “the at least one first response”.
As per claim 5, “the data”,ll1 should be “data”.
As per claim 6, see objection on claim 5.
As per claim 7, see objection on claim 5.
As per claim 8, see objection on claim 1.
As per claim 9, see objection on claim 2.
As per claim 10, see objection on claim 3.
As per claim 12, see objection on claim 5.
As per claim 13, see objection on claim 6.
As per claim 14, see objection on claim 7.
As per claim 15, see objection on claim 1.
As per claim 16, see objection on claim 2.
As per claim 17, see objection on claim 3.
As per claim 18, see objection on claim 5.
As per claim 19, see objection on claim 6.
As per claim 20, see objection on claim 7.
Appropriate correction is required.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-2, and 4-7 of U.S. Patent No. 11789772 in view of Nidugala et al (US 2017/0315838) (hereinafter Nidugala).
Instant Application
11789772 Patent
1. A system, comprising:
a computing device comprising a processor and a memory;
machine-readable instructions stored in the memory that, when executed by the processor, cause the computing device to at least:
receive an eviction request from a first host, the eviction request identifying a virtual machine executed on the first host;
broadcast the eviction request to a plurality of hosts;
receive at least one response to the eviction request, the at least one response received from at least one of the plurality of hosts to act as a new host for the virtual machine;
select a second host from the at least one of the plurality of hosts to act as the new host for the virtual machine; and
send a response to the at least one of the plurality of hosts, the response associated with the eviction request.
1. A system, comprising:
a computing device comprising a processor and a memory;
machine-readable instructions stored in the memory that, when executed by the processor, cause the computing device to at least:
receive an eviction request from a first host, the eviction request comprising data regarding a virtual machine to be migrated from the first host;
broadcast the eviction request to a plurality of hosts;
receive at least one response to the eviction request, the at least one response comprising a score representing an ability of a respective one of the plurality of hosts to act as a new host for the virtual machine;
select a second host from the plurality of hosts to act as the new host for the virtual machine based at least in part on the at least one score; and
send a response to the first host, the response associated with the eviction request.
2. The system of claim 1 . . .
determine whether any of the plurality of hosts are available as the new host for the virtual machine based at least in part on the at least one response.
2. The system of claim 1, wherein . . .
determine whether any of the plurality of hosts are available as the new host for the virtual machine based at least in part on the at least one score.
4. The system of claim 1, wherein the eviction request is stored in a request queue stored in the memory of the computing device.
4. The system of claim 1, wherein the eviction request is stored in a request queue stored in the memory of the computing device
5. The system of claim 1, wherein the data regarding the virtual machine comprises an amount of memory allocated to the virtual machine.
5. The system of claim 1, wherein the data regarding the virtual machine comprises an amount of memory allocated to the virtual machine.
6. The system of claim 1, wherein the data regarding the virtual machine comprises a central processor utilization (CPU) metric.
6. The system of claim 1, wherein the data regarding the virtual machine comprises a central processor utilization (CPU) metric.
7. The system of claim 1, wherein the data regarding the virtual machine comprises an amount of bandwidth consumed by the virtual machine.
7. The system of claim 1, wherein the data regarding the virtual machine comprises an amount of bandwidth consumed by the virtual machine.
As per claim 3, 772 Patent teaches:
The system of claim 1 (see rejection on claim 1), wherein the machine-readable instructions that cause the computing device to
select the second host based at least in part on the at least one response further comprises: select the at least one response that comprises a score (772 Patent, claim 3);
772 Patent does not expressly teach:
wherein the score indicating an ability to receive the virtual machine.
However, Nidugala discloses:
wherein the score indicating an ability to receive the virtual machine(Nidugala, [0064]).
Both Nidugala and 772 Patent pertain to the art of hosting VMs.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to use Nidugala’s method to use a sore indicating ability to host a VM because it is well-known in the art that when using a suitability score to select a destination server to host a VM, the performance of the VM can be guaranteed after its migration to the destination server.
As per claim 8, see rejection on claim 1.
As per claim 9, see rejection on claim 2.
As per claim 10, see rejection on claim 3.
As per claim 11, see rejection on claim 4.
As per claim 12, see rejection on claim 5.
As per claim 13, see rejection on claim 6.
As per claim 14, see rejection on claim 7.
As per claim 15, see rejection on claim 1.
As per claim 16, see rejection on claim 2.
As per claim 17, see rejection on claim 3.
As per claim 18, see rejection on claim 5.
As per claim 19, see rejection on claim 6.
As per claim 20, see rejection on claim 7.
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.
the claimed invention is directed to non-statutory subject matter. The claim(s) does/do not fall within at least one of the four categories of patent eligible subject matter.
Claims 1-20 are rejected under 35 U.S.C. 101.
As per claim 1, the claim recites a system, therefore is a machine.
The claim recites the limitation of “select a second host from the at least one of the plurality of hosts to act as the new host for the virtual machine”. This limitation, 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. Thus, the claim recites a mental process.
The limitation of “receive an eviction request from a first host . . . broadcast the eviction request to a plurality of hosts . . . receive at least one response to the eviction request . . . send a response to the at least one of the plurality of hosts, the response associated with the eviction request” amounts to data gathering which is considered to be insignificant extra solution activity (MPEP 2106.05(g); it is also a mere generic transmission and presentation of collected and analyzed data which is considered to be insignificant extra solution activity (MPEP 2106.05(g). The elements of “a computing device comprising a processor and a memory” are recited at a high-level of generality (i.e., as a generic processor performing a generic computer function) such that it amounts no more than mere instructions to apply the exception using a generic computer component. Accordingly, these additional elements do not integrate the abstract idea into a practical application because it does not impose any meaningful limits on practicing the abstract idea. The claim is directed to the abstract idea.
As discussed above, “receive an eviction request from a first host . . . broadcast the eviction request to a plurality of hosts . . . receive at least one response to the eviction request . . . send a response to the at least one of the plurality of hosts, the response associated with the eviction request” is a mere generic transmission and presentation of collected and analyzed data which is considered to be insignificant extra solution activity (MPEP 2106.05(g). The elements of “a computing device comprising a processor and a memory” are recited at a high-level of generality (i.e., as a generic processor performing a generic computer function) such that it amounts no more than mere instructions to apply the exception using a generic computer component. The claim is ineligible.
As per claim 2, see rejection on claim 1. “determine . . . one response”, 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. Thus, the claim recites a mental process.
As per claim 3, see rejection on claim 1. “select . . . virtual machine”, 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. Thus, the claim recites a mental process.
As for claim 4, “eviction request . . . stored in . . . “ is a mere generic transmission and presentation of collected and analyzed data which is considered to be insignificant extra solution activity (MPEP 2106.05(g) The claim is ineligible.
As per claim 5, “the data regarding the virtual machine comprises an amount of memory allocated to the virtual machine” is simply appending well-understood, routine, conventional activities previously known to the industry, specified at a high level of generality, to the judicial exception - see MPEP 2106.05(d) and Berkheimer Memo. See US 2015/0261574. The claim is ineligible
As per claim 6, “the data regarding the virtual machine comprises a central processor utilization (CPU) metric” is simply appending well-understood, routine, conventional activities previously known to the industry, specified at a high level of generality, to the judicial exception - see MPEP 2106.05(d) and Berkheimer Memo. See US 2015/0261574. The claim is ineligible
As per claim 7, “the data regarding the virtual machine comprises an amount of bandwidth consumed by the virtual machine” is simply appending well-understood, routine, conventional activities previously known to the industry, specified at a high level of generality, to the judicial exception - see MPEP 2106.05(d) and Berkheimer Memo. See US 2015/0261574. The claim is ineligible
As per claim 8, see rejection on claim 1.
As per claim 9, see rejection on claim 2.
As per claim 10, see rejection on claim 3.
As per claim 11, see rejection on claim 4.
As per claim 12, see rejection on claim 5.
As per claim 13, see rejection on claim 6.
As per claim 14, see rejection on claim 7.
As per claim 15, see rejection on claim 1.
As per claim 16, see rejection on claim 2.
As per claim 17, see rejection on claim 3.
As per claim 18, see rejection on claim 5.
As per claim 19, see rejection on claim 6.
As per claim 20, see rejection on claim 7.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. US 2019/0310881 teaches a method of soring migration requests in a queue.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHARLIE SUN whose telephone number is (571)270-5100. The examiner can normally be reached 9AM-5PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Vital Pierre can be reached at (571) 272-4215. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/CHARLIE SUN/Primary Examiner, Art Unit 2198