DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . This office action is in response to communication filed 5/4/2026.
The instant application having application No. 18/568,843 filed on December 11, 2023, is a continuation of PCT/JP2022/020273 filed on May 13, 2022.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 4/14/2026 was filed before the mailing date of the Non-Final Office Action. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Status of the Claims
Claims 1 and 17 are amended, claim 3 was previously canceled, claims 1-2, and 4-17 are currently pending in the application.
Response to Amendment
Regarding 101 abstract idea rejections: The amended claims are still abstract idea without significantly more, the rejections are maintained.
Examiner Notes
Examiner cites particular columns, paragraphs, figures and line numbers in the references as applied to the claims below for the convenience of the applicant. Although the specified citations are representative of the teachings in the art and are applied to the specific limitations within the individual claim, other passages and figures may apply as well. It is respectfully requested that, in preparing responses, the applicant fully consider the references in their entirety as potentially teaching all or part of the claimed invention, as well as the context of the passage as taught by the prior art or disclosed by the examiner.
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.
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 1-2, and 4-17 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
With respect to claim 1 (Currently Amended), This claim is within at least one of the four categories of patent eligible subject matter as it is directed to a system claim under Step 1.
Under Prong 1, Step 2A:
However, the limitations of claim 1,
“constructing each of a plurality of applications […];
identifying, […], an actual result value of a resource usage status […];
identifying, for each of a plurality of replacement patterns, based on the actual result value, a leveling index value indicating, in a case in which at least one of the applications has been replaced […], at least one of a degree of leveling of a resource usage status […] or a degree of leveling of resource usage statuses […];
determining, based on the leveling index value identified for each of the plurality of the replacement patterns, a replacement pattern relating to replacement to be executed; and
replacing at least one of the applications based on the determined replacement pattern […], wherein the identifying the leveling index value comprises identifying the leveling index value based on a degree of improvement in the leveling of the resource usage status […] of the replacement destination and a degree of improvement in the leveling of the resource usage status […] of a replacement source.”
as drafted, are functions that, under its broadest reasonable interpretation, recite the abstract idea of a mental process. The limitations encompass a human mind carrying out the functions through observation, evaluation, judgment and /or opinion, or even with the aid of pen and paper. E.g. human can manually construct applications as defined in the claim element, can manually identify actual result value of a resource usage status as defined in the claim element, can manually identify a leveling index value as defined in the claim element, can manually determine a replacement pattern as defined in the claim element, and can manually replace one of the applications based on the determined replacement pattern. “wherein the identifying the leveling index value comprises identifying the leveling index value based on a degree of improvement in the leveling of the resource usage status on the each of the execution platforms of the replacement destination and a degree of improvement in the leveling of the resource usage status on the one of the execution platforms of a replacement source” further defines the identifying processes, and are the same mental processes as the identifying process. Thus, these claim limitations fall within the “Mental Processes” grouping of abstract ideas under Prong 1 Step 2A.
Under Prong 2, Step 2A:
The judicial exception is not integrated into a practical application. The claim recites the following additional elements
“a system”, “at least one processor”, “at least one memory device” and “execution platforms”, and
“by acquiring a container image of the at least one of the applications from a repository and deploying a container corresponding to the container image on the another one of the execution platforms of the replacement destination”.
The elements “a system”, “at least one processor”, “at least one memory device” and “execution platforms” are recited at a high-level of generality (i.e. as a generic processing device performing generic computer functions) such that it amounts to no more than mere instructions to apply the judicial exception using a generic computer component, Refer to MPEP 2106.05(f). Accordingly, these additional elements do not integrate the abstract idea into a practical application because they do not impose any meaningful limits on practicing the abstract idea. The “acquiring …” and “deploying …” processes are insignificant extra-solution activities such as retrieving data from a repository and storing data, Refer to MPEP 2106.05(g).
Under Step 2B:
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 elements “a system”, “at least one processor”, “at least one memory device” and “execution platforms”, that are mere use of generic computer to implement the abstract idea, thus, are not an inventive concept. The “acquiring …” and “deploying …” processes are insignificant extra-solution activities such as retrieving data from a repository and storing data which are recognized as well-understood, routine, and conventional activities, see MPEP 2106.05(d) II, Versata Dev. Group, Inc. v. SAP Am., Inc. for retrieving and storing data.
Accordingly, the claim does not appear to be patent eligible under 35 USC 101.
With respect to claim 17 (Currently Amended), it is directed to a method that is disclosed in claim 1, and therefore, recites the same abstract idea as claim 1. Please refer to the analysis for claim 1 above which covers all limitations of claim 17.
With respect to claim 2 (Previously Presented), “the operations further comprise selecting an application to be replaced from among the plurality of the applications,
wherein the identifying the leveling index value comprises identifying the leveling index value indicating, in a case in which the application to be replaced has been replaced onto each of the execution platforms different from one of the execution platforms on which the application is being executed, at least one of the degree of leveling of the resource usage status on the each of the execution platforms of the replacement destination or the degree of leveling of the resource usage statuses among the plurality of the execution platforms,
wherein the determining comprises determining the each of the execution platforms of the replacement destination for the application to be replaced based on the leveling index value in the case in which the application to be replaced has been replaced onto the each of the execution platforms different from the one of the execution platforms on which the application is being executed, and
wherein the replacing comprises replacing the application to be replaced onto the determined each of the execution platforms.” as drafted, are functions that, under its broadest reasonable interpretation, recite the abstract idea of a mental process. The limitations encompass a human mind carrying out the functions through observation, evaluation, judgment and /or opinion, or even with the aid of pen and paper. E.g. the user can manually perform the selecting, the identifying, the determining, and the replacing processes as defined in the claim. The execution platforms are mere use of generic computer to implement the abstract idea.
With respect to claim 4 (Previously Presented), “wherein the identifying the actual result value comprises identifying a total sum of actual result values of resource usage statuses in respective applications executed on the each of the execution platforms as the actual result value of the resource usage status on the each of the execution platforms.” as drafted, are functions that, under its broadest reasonable interpretation, recite the abstract idea of a mental process. The limitations encompass a human mind carrying out the functions through observation, evaluation, judgment and /or opinion, or even with the aid of pen and paper. E.g. the user can manually perform the identifying process as defined in the claim. The execution platforms are mere use of generic computer to implement the abstract idea.
With respect to claim 5 (Previously Presented), “the operations further comprise identifying, for an addition-scheduled execution platform on which an application is to be added among the plurality of the execution platforms, a predicted value of the resource usage status on the addition-scheduled execution platform in a case in which the application has been constructed on the addition-scheduled execution platform,
wherein the identifying the leveling index value comprises identifying the leveling index value based on the identified predicted value.” as drafted, are functions that, under its broadest reasonable interpretation, recite the abstract idea of a mental process. The limitations encompass a human mind carrying out the functions through observation, evaluation, judgment and /or opinion, or even with the aid of pen and paper. E.g. the user can manually perform the identifying process as defined in the claim. The execution platforms are mere use of generic computer to implement the abstract idea.
With respect to claim 6 (Previously Presented), “wherein the identifying the predicted value comprises identifying the predicted value based on the actual result value of the resource usage status in a running application of the same type as the type of the application to be added.” as drafted, are functions that, under its broadest reasonable interpretation, recite the abstract idea of a mental process. The limitations encompass a human mind carrying out the functions through observation, evaluation, judgment and /or opinion, or even with the aid of pen and paper. E.g. the user can manually perform the identifying process as defined in the claim.
With respect to claim 7 (Previously Presented), “wherein the identifying the leveling index value comprises identifying the leveling index value based on predicted values of the resource usage statuses for respective period types.” as drafted, are functions that, under its broadest reasonable interpretation, recite the abstract idea of a mental process. The limitations encompass a human mind carrying out the functions through observation, evaluation, judgment and /or opinion, or even with the aid of pen and paper. E.g. the user can manually perform the identifying process as defined in the claim.
With respect to claim 8 (Previously Presented), “wherein the identifying the leveling index value comprises identifying the leveling index value based on, in the case in which at least one of the applications has been replaced onto another one of the execution platforms, the predicted values of the resource usage statuses for the respective period types on the another one of the execution platforms of the replacement destination.” as drafted, are functions that, under its broadest reasonable interpretation, recite the abstract idea of a mental process. The limitations encompass a human mind carrying out the functions through observation, evaluation, judgment and /or opinion, or even with the aid of pen and paper. E.g. the user can manually perform the identifying process as defined in the claim. The execution platforms are mere use of generic computer to implement the abstract idea.
With respect to claim 9 (Previously Presented), “wherein the identifying the leveling index value comprises identifying the leveling index value indicating a variation in the predicted values for the respective period types, and wherein the determining comprises determining the replacement pattern relating to the replacement to be executed based on smallness of the variation indicated by the leveling index value.” as drafted, are functions that, under its broadest reasonable interpretation, recite the abstract idea of a mental process. The limitations encompass a human mind carrying out the functions through observation, evaluation, judgment and /or opinion, or even with the aid of pen and paper. E.g. the user can manually perform the identifying and the determining processes as defined in the claim.
With respect to claim 10 (Previously Presented), “wherein the identifying the leveling index value comprises identifying the leveling index value indicating a difference between a maximum value and a minimum value of the predicted values for the respective period types, and wherein the determining comprises determining the replacement pattern relating to the replacement to be executed based on smallness of the difference indicated by the leveling index value.” as drafted, are functions that, under its broadest reasonable interpretation, recite the abstract idea of a mental process. The limitations encompass a human mind carrying out the functions through observation, evaluation, judgment and /or opinion, or even with the aid of pen and paper. E.g. the user can manually perform the identifying and the determining processes as defined in the claim.
With respect to claim 11 (Previously Presented), “wherein the identifying the leveling index value comprises identifying the leveling index value indicating, in the case in which at least one of the applications has been replaced onto another one of the execution platforms, a variation in the predicted values of the resource usage statuses among the plurality of the execution platforms, and wherein the determining comprises determining the replacement pattern relating to the replacement to be executed based on smallness of the variation indicated by the leveling index value.” as drafted, are functions that, under its broadest reasonable interpretation, recite the abstract idea of a mental process. The limitations encompass a human mind carrying out the functions through observation, evaluation, judgment and /or opinion, or even with the aid of pen and paper. E.g. the user can manually perform the identifying and the determining processes as defined in the claim. The execution platforms are mere use of generic computer to implement the abstract idea.
With respect to claim 12 (Previously Presented), “wherein the identifying the leveling index value comprises identifying the leveling index value indicating, in the case in which at least one of the applications has been replaced onto another one of the execution platforms, a total sum of absolute values of differences between the predicted values of the resource usage statuses on the respective plurality of the execution platforms and a predetermined value, and wherein the determining comprises determining, based on smallness of the total sum of the absolute values of the differences indicated by the leveling index value, the replacement pattern relating to the replacement to be executed.” as drafted, are functions that, under its broadest reasonable interpretation, recite the abstract idea of a mental process. The limitations encompass a human mind carrying out the functions through observation, evaluation, judgment and /or opinion, or even with the aid of pen and paper. E.g. the user can manually perform the identifying and the determining processes as defined in the claim. The execution platforms are mere use of generic computer to implement the abstract idea.
With respect to claim 13, “wherein each of the execution platforms is a Kubernetes cluster.” as drafted, is merely indicating a field of use or technological environment in which to apply a judicial exception, and does not amount to significantly more than the exception itself, and cannot integrate a judicial exception into a practical application. See MPEP § 2106.05(h).
With respect to claim 14, “wherein each of the applications is an application included in a communication system.” as drafted, is merely indicating a field of use or technological environment in which to apply a judicial exception, and does not amount to significantly more than the exception itself, and cannot integrate a judicial exception into a practical application. See MPEP § 2106.05(h).
With respect to claim 15, “wherein each of the applications is a network function.” as drafted, is merely indicating a field of use or technological environment in which to apply a judicial exception, and does not amount to significantly more than the exception itself, and cannot integrate a judicial exception into a practical application. See MPEP § 2106.05(h).
With respect to claim 16, “wherein the resource usage status is at least one of a usage status of a CPU, a usage status of a memory, a usage status of a storage, a usage status of a network, or a usage status of electric power.” as drafted, is merely indicating a field of use or technological environment in which to apply a judicial exception, and does not amount to significantly more than the exception itself, and cannot integrate a judicial exception into a practical application. See MPEP § 2106.05(h).
Response to Arguments
Applicant's arguments with respect to 101 abstract idea rejections filed 5/4/2026 have been fully considered but they are not persuasive.
At p7 second from last paragraph to p8 third paragraph of the Remarks, Applicant argued that “The Amended Claims Do Not Recite a Mental Process Under Step 2A Prong One”. Particularly, at p7 second from last paragraph of the Remarks, Applicant argued that “Amended claim 1 now recites replacing at least one of the applications based on the determined replacement pattern "by acquiring a container image of the at least one of the applications from a repository and deploying a container corresponding to the container image on the another one of the execution platforms of the replacement destination." This limitation recites (1) acquiring a container image from a repository, and (2) deploying a container corresponding to the container image on an execution platform. These operations cannot be practically performed in the human mind.”
Examiner respectfully disagrees, because, as set forth in the office action, the constructing, identifying, determining, and replacing of claim 1 are mental processes as human can manually perform these processes. The acquiring and deploying are not mental processes, but they are insignificant extra-solution activities.
At p7 last to p8 second paragraph of the Remarks, Applicant compared instant claims to claim 2 of Example 37, and argued that “Similarly, the amended claim 1 recites "acquiring a container image of the at least one of the applications from a repository and deploying a container corresponding to the container image on the another one of the execution platforms of the replacement destination." This step cannot be practically performed in the human mind, at least because acquiring a container image requires accessing a repository storing container images, and deploying a container requires executing deployment operations on server infrastructure (e.g., Kubernetes clusters) or an execution platform. These operations inherently require interaction with computer infrastructure/repository/execution platform that cannot be performed mentally or with pen and paper.”
Examiner respectfully disagrees, because, Example 37 claim 2 is not applicable here. For Example 37 claim 2, “determining the amount of use of each icon by tracking how much memory has been allocated to each application associated with each icon over a predetermined period of time” is not abstract idea and not insignificant extra-solution activity. The instant claims do not recite any feature similar to those of Example 37 claim 2. As set forth in the office action, and as explained above, the acquiring and deploying processes are insignificant extra-solution activities. Acquiring a container image is like retrieving data, and deploying a container image is like storing data. Retrieving and storing data are insignificant extra-solution activities which are recognized as well-understood, routine, and conventional activities, see MPEP 2106.05(d) II, Versata Dev. Group, Inc. v. SAP Am., Inc. for retrieving and storing data.
At p8 third paragraph of the Remarks, Applicant argued that “Moreover, when the claim is evaluated as a whole, the amended claim 1 recites a series of operations that collectively cannot be practically performed in the human mind: (1) constructing applications on execution platforms, (2) identifying actual result values of resource usage statuses on the execution platforms, (3) identifying leveling index values based on dual-sided improvement considering both the replacement destination and replacement source, (4) determining a replacement pattern, and (5) replacing applications by acquiring a container image from a repository and deploying a container on the replacement destination execution platform. This ordered combination of operations is rooted in computer technology and cannot be practically performed in the human mind or with pen and paper.”
Examiner respectfully disagrees, because, as set forth in the office action and as explained above, the constructing …, identifying actual result values …, identifying leveling index …, determining …, and replacing… are mental processes as human can manually perform these processes. The acquiring …, and deploying… are insignificant extra-solution activities. Even viewed as whole, the claim does not integrate the judicial exception into a practical application.
At p8 last to p9 first paragraph of the Remarks, Applicant argued that “Applicant respectfully submits that even if individual elements such as "acquiring a container image from a repository" and "deploying a container" were considered conventional, this does not affect the Step 2A Prong One analysis. The relevant inquiry under Step 2A Prong One is whether the claimed step can be practically performed in the human mind - not whether the step is conventional. Whether an element is conventional is a consideration under Step 2B, not Step 2A Prong One.”
Examiner respectfully disagrees, because, during the interview conducted on 4/28/2026, Examiner’s comments of “conventional” activities were not meant for analysis under Step 2A Prong One, but for Step 2B. As set forth in the office action, For Step 2A Prong One, mental processes were determined such as constructing, identifying, and replacing.
At p9 second paragraph of the Remarks, Applicant argued that “As noted above, in USPTO Example 37 Claim 2, "tracking how much memory has been allocated to each application" may also involve computer operations known in the art. However, the USPTO found that this limitation renders the claim not a mental process because the step "requires a processor accessing computer memory indicative of application usage." The same logic applies here: "acquiring a container image of the at least one of the applications from a repository and deploying a container corresponding to the container image on the another one of the execution platforms of the replacement destination" as recited in amended claim 1 requires actual interaction with computer systems and cannot be performed in the human mind, regardless of whether such operations may be considered conventional in the art.”
Examiner respectfully disagrees, because, as explained above, Example 37 claim 2 is not applicable here. For Example 37 claim 2, “determining the amount of use of each icon by tracking how much memory has been allocated to each application associated with each icon over a predetermined period of time” is not abstract idea and not insignificant extra-solution activity. For instant claims, acquiring and deploying are not mental processes, but they are insignificant extra-solution activities and are recognized as well-understood, routine, and conventional activities in MPEP. Thus, the instant claims are abstract idea without significantly more.
At p9 third paragraph of the Remarks, Applicant argued that “Furthermore, the Office should not consider whether an element is "conventional" when analyzing improvements under Step 2A Prong Two. As noted in the USPTO Subject Matter Eligibility Examples 43-46, Example 45, Practice Note: "Note that under the 2019 PEG, examiners should perform their analysis of 'improvements' at Step 2A Prong Two without reference to what is well-understood, routine, conventional activity." See USPTO Subject Matter Eligibility Examples 43-46, Example 45, Practice Note. Therefore, even under Step 2A Prong Two, the Office's concern that the amended limitation may be conventional should not affect the analysis of whether the claims are integrated into a practical application.
Examiner respectfully disagrees, because, as explained above, during the interview conducted on 4/28/2026, Examiner’s comments of “conventional” activities were not meant for analysis under Step 2A Prong One, and not for analysis under Step 2A Prong Two, but for Step 2B. As set forth in the office action, for Step 2A Prong One, mental processes were determined such as constructing, identifying, and replacing. For Step 2A Prong Two, additional elements such as acquiring and deploying, were analyzed and determined that the additional elements do not integrate the identified judicial exception into a practical application.
At p9 last two to p10 first paragraphs of the Remarks, Applicant compared the instant claims to Example 45, and argued that “the claims as a whole integrate any such abstract idea into a practical application.”
Examiner respectfully disagrees, because, Example 45 claims 2 and 4 are not applicable here. For Example 45, claim 2, e.g., limitation (d) “send control signals to the injection molding apparatus once the polyurethane has reached a target percentage, the control signals instructing the apparatus to open the mold and eject the molded polyurethane from the mold.” This limitation “adds a meaningful limitation in that it employs the information provided by the judicial exceptions (the calculated percentage of the extent of cure) to control the operation of the injection molding apparatus.” The instant claims do not recite any feature similar to those of Example 45 claim 2 or 4. The leveling index and the determined replacement pattern are used in mental processes of determining whether and/or how to replace an execution platform.
At p10 second paragraph of the Remarks, Applicant argued that “As explained in the specification, the leveling of the resource usage statuses through the replacement helps to enable effective utilization of resources of execution platforms on which applications are constructed. See specification at page 10, lines 3-8 (non-limiting). A person of ordinary skill in the art would recognize that the amended claim 1, in combination with the other claim limitations, reflects the technical advantages described in the specification. The amended claim 1 as a whole thus helps to improve upon previous resource management approaches used in the technical field of distributed computing infrastructure. The amended claim 1 is not merely applying an abstract idea using generic computer components, but rather recites a specific technical implementation for application migration in containerized communication systems.”
Examiner respectfully disagrees, because, the effective utilization of resources is achieved with abstract idea without significantly more, technology is not affected. The instant claims may be different or advantageous over the previous resource management approaches, technology is not affected because the instant claims are abstract idea without significantly more, and the previous resource management approaches may even be just mental processes, i.e. the instant claims do not affect technology.
At p10 third paragraph of the Remarks, Applicant argued that “For at least the reasons discussed above, amended claim 1 is directed to a statutory patent- eligible subject matter. Accordingly, reconsideration and withdrawal of the rejection of claim 1 are respectfully requested.”
Examiner respectfully disagrees, because, as set forth in the office action, and as explained above, amended claim 1 is still abstract idea without significantly more, the 101 abstract idea rejections are maintained.
At p10 last two paragraphs of the Remarks, Applicant argued that all other claims are directed to a statutory patent- eligible subject matter for at least the reasons set forth above with respect to claim 1.
Examiner respectfully disagrees, because, as explained above, amended claim 1 is still abstract idea without significantly more, the 101 abstract idea rejections are maintained. The 101 abstract idea rejections to all other claims are similarly maintained.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. For example, Shelton et al. US 20220027136 A1 teaches image transfer.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Zengpu Wei whose telephone number is 571-270-1302. The examiner can normally be reached on Monday to Friday from 8:00AM to 5:00 PM.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Bradley Teets, can be reached on 571-272-3338. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ZENGPU WEI/
Examiner, Art Unit 2197
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