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 final office action is responsive to the amendments filed on 06/25/2026.
Claims 1-3, 5-6, 9-14 are pending.
Response to Amendment
Applicant has amended independent claims 1, 14 and dependent claims 3, 5-6 to include new/old limitations in a form not previously presented necessitating new search and considerations. Claims 4, and 7-8 have been canceled.
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.
Claims 1-3, 5-6, 9-14 are rejected under 35 U.S.C. 112 (b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or joint inventor regards as the invention.
The following claim language is not clearly understood:
Claim 1 recites “period types” without clearly reciting what constitutes the types of period or what are different types of the periods.
Claim 14 recite elements of claim 1 and have similar deficiency as claim 1. Therefore, they are rejected for the same rationales. Remaining dependent claims 2-3, 13 are also rejected due to similar deficiency inherited from the rejected independent claims.
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 1-3, 5-6, 9-14 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more or integrating into practical application.
Claims 1-3, 5-6, 9-14 are determined to be directed to an abstract idea. Examples of abstract ideas include at least Mathematical concepts, Mental process and Certain Methods of organizing human activity. Independent claim 1 is directed to “determining execution platform for an application based on a levelling index value, wherein the leveling index value is indicative of degree of leveling of predicted resource usage, and wherein predicted resource usage value is based on actual resource usage value” at a high level of generality.
Step 1
As described in MPEP § 2106, subsection III, Step 1 of the eligibility analysis asks: Is the claim to a process, machine, manufacture or composition of matter?
Claim 1 recites a system comprising memory/processors, which falls within the “machine” category of 35 U.S.C. § 101. Claim 14 recites a method, which falls within the “process” category of 35 U.S.C. § 101. Thus, the analysis determines whether the claims recite a judicial exception and fail to integrate the exception into practical application. See Memorandum, 84 Fed. Re. 54-55. If both elements are satisfied, the claims are directed to a judicial exception under the first step of the Alice/Mayo test.
Step 2A Prong One
As described in MPEP § 2106, subsection III, Step 2A of the Office’s eligibility analysis is the first part of the Alice/Mayo test, i.e., the Supreme Court’s "framework for distinguishing patents that claim laws of nature, natural phenomena, and abstract ideas from those that claim patent-eligible applications of those concepts." Alice Corp. Pty. Ltd. v. CLS Bank Int'l, 573 U.S. 208, 217-18, 110 USPQ2d 1976, 1981 (2014) (citing Mayo, 566 U.S. at 77-78, 101 USPQ2d at 1967-68).
Step 2A is a two-prong inquiry, in which examiners determine in Prong One whether a claim recites a judicial exception, and if so, then determine in Prong Two if the recited judicial exception is integrated into a practical application of that exception.
Claim Elements
i.
1. An execution platform determination system, comprising:
intended use
ii.
at least one processor; and at least one memory device storing instruction which, when executed by the at least one processor, cause the at least one processor to perform operations comprising:
generic computing
iii.
identifying, for each of a plurality of execution platforms on which an application to be added is executable, an actual result value of a resource usage status on the each of the plurality of execution platforms;
information gathering
iv.
identifying, for each of the plurality of execution platforms, a predicted value of the resource usage status on the each of the plurality of execution platforms obtained in a case in which the application has been constructed on the each of the plurality of execution platforms based on the actual result value relating to the each of the plurality of execution platforms, wherein the predicted value comprises predicted values for respective period types;
mental process abstract idea
v
identifying, for each of the plurality of execution platforms, based on the predicted value, a leveling index value indicating, in a case in which the application has been constructed on the each of the plurality of execution platforms, a variation in the predicted values for the respective period types on the each of the plurality of execution platforms; and
mental process abstract idea
vi
determining, based on the leveling index value, one of the plurality of execution platforms on which the application is to be constructed from among the plurality of the execution platforms.
mental process abstract idea
The overall process described by steps [iv]-[vi] describes “concepts performed in the human mind” or “observation, evaluation, judgement, opinion.” Thus steps [iv]-[vi] recite the abstract concept of [m]ental processes.” For example, step [iv] recites “identifying, for each of the plurality of execution platforms, a predicted value of the resource usage status on the each of the plurality of execution platforms obtained in a case in which the application has been constructed on the each of the plurality of execution platforms based on the actual result value relating to the each of the plurality of execution platforms, wherein the predicted value comprises predicted values for respective period types;”, which is directed to identify predicted values for respective period types based on actual resource usage value, and is a combination of observation, evaluation, judgement and opinion, and may be performed by human mind, according to the broadest reasonable interpretation of the claims. Claim 1 in step [v] recites “identifying, for each of the plurality of execution platforms, based on the predicted value, a leveling index value indicating, in a case in which the application has been constructed on the each of the plurality of execution platforms, a variation in the predicted values for the respective period types on the each of the plurality of execution platforms”, which is directed to identifying a variation in the predicted values for the respective period types on the each of the plurality of execution platforms based on degree of leveling index value for application on each of plurality of execution, and is a combination of observation, evaluation, judgement and opinion, and may be performed by human mind, according to the broadest reasonable interpretation of the claims. Claim 1 in step [vi] recites “determining, based on the leveling index value, one of the plurality of execution platforms on which the application is to be constructed from among the plurality of the execution platforms”, which is directed to determining one of the platform based on the leveling index values of the plurality of execution platform , which is a combination of observation, evaluation, judgement and opinion, and may be performed by human mind, according to the broadest reasonable interpretation of the claim. Therefore, steps [iv]-[vi] resembles the idea of performing observation, evaluation, judgement and opinion according to the broadest reasonable interpretations of the claim elements and can be performed by human mind alone or with the aid of pen and paper. The courts consider a mental process (thinking) that "can be performed in the human mind, or by a human using a pen and paper" to be an abstract idea. CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1372, 99 USPQ2d 1690, 1695 (Fed. Cir. 2011).
Thus, claim 1 recites a judicial exception of mental process. For these same reasons, claim 14 recites judicial exception of mental process.
Step 2A, Prong Two
As described in MPEP § 2106, subsection III, Step 2A of the Office’s eligibility analysis is the first part of the Alice/Mayo test, i.e., the Supreme Court’s "framework for distinguishing patents that claim laws of nature, natural phenomena, and abstract ideas from those that claim patent-eligible applications of those concepts." Alice Corp. Pty. Ltd. v. CLS Bank Int'l, 573 U.S. 208, 217-18, 110 USPQ2d 1976, 1981 (2014) (citing Mayo, 566 U.S. at 77-78, 101 USPQ2d at 1967-68).
Step 2A is a two-prong inquiry, in which examiners determine in Prong One whether a claim recites a judicial exception, and if so, then determine in Prong Two if the recited judicial exception is integrated into a practical application of that exception.
Because claims 1 and 14 recite a judicial exception of mental process, Analysis determines if the claims recites additional elements that integrate the judicial exception into practical application. In addition to the limitations of claim 1 discussed above that recite the abstract concepts, claim 1 also recites additional steps [i]-[iii]. Claim 1 in step [i] recites “an execution platform determination system”, which recites a system with intended use and is generic and is not considered an improvement in the functioning of a computer or technology or technical field. Claim 1 in step [ii] recites “ at least one processor; and at least one memory device storing instruction which, when executed by the at least one processor, cause the at least one processor to perform operations”, which is directed to generic computing components, as understood by one of ordinary skills in the art. Claim 1 in step [iii] recites “identifying, for each of a plurality of execution platforms on which an application to be added is executable, an actual result value of a resource usage status on the each of the plurality of execution platforms”, which is directed to information gathering, according to the broadest interpretation of claim elements. Information gathering is considered insignificant extra solution activity and is neither inventive nor provide improvement to the technology and /or technical field. The specification doesn’t provide additional details that would distinguish the additional limitations recited in claim 1 steps [i]-[iii] from a generic implementation of the abstract idea. Thus, the claim elements recited in steps [i]-[iii] , under broadest reasonable interpretation, do not integrate the judicial exception into a practical application.
Thus, claim 1 recites a judicial exception of mental process without integrating into practical application. For these same reasons and based on similar analysis as above, claim 14 also recites judicial exception of mental process without integrating into practical application.
Step 2B
As described in MPEP § 2106, subsection III, Step 2B of the Office’s eligibility analysis is the second part of the Alice/Mayo test, i.e., the Supreme Court’s "framework for distinguishing patents that claim laws of nature, natural phenomena, and abstract ideas from those that claim patent-eligible applications of those concepts." Alice Corp. Pty. Ltd. v. CLS Bank Int'l, 573 U.S. 208, 217, 110 USPQ2d 1976, 1981 (2014) (citing Mayo, 566 U.S. 66, 101 USPQ2d 1961 (2012)).
Step 2B asks: Does the claim recite additional elements that amount to significantly more than the judicial exception.
Because claims 1 and 14 are directed to judicial exception of mental process without integrating into practical application, analysis must determine, according to Alice, whether these claims recite an element, or combination of elements that is enough to ensure that the claim is directed to significantly more than a judicial exception.
The Memorandum, Section III (B) (footnote 36) states:
In accordance with existing guidance, an Examiner’s conclusion that an additional element (or combination of elements) is well understood, routine, conventional activity must be supported with a factual determination. For more information concerning evaluation of well-understood, routine, convention activity, see MPEP 2106.05(d), as modified by the USPTO Berkheimer Memorandum.
The Berkheimer Memorandum, Section III(A)(1) states:
A Specification demonstrates the well-understood, routine, conventional nature of additional elements when it describes the additional elements as well-understood or routine or conventional (or an equivalent term), as a commercially available product, on in a manner that indicates that the additional elements are sufficiently well-known that the specification does not need to describe the particulars of such additional elements to satisfy 35 §U.S.C. 112(a). A finding that an element is well-understood, routine, or conventional cannot be based only on the fact that the specification is silent with respect to describing such element.
Claim 1 in step [i] recites additional claim elements of “an execution platform determination system”, which recites a system with intended use and is generic and do not amount to significantly more. Claim 1 in step [ii] recites additional claim elements of “at least one processor; and at least one memory device storing instruction which, when executed by the at least one processor, cause the at least one processor to perform operations”, which is directed to generic computing components, as understood by one of ordinary skills in the art, and do not amount to significantly more. Claim 1 in step [iii] recites additional claim elements of “identifying, for each of a plurality of execution platforms on which an application to be added is executable, an actual result value of a resource usage status on the each of the plurality of execution platforms”, which is directed to information gathering, according to the broadest interpretation of claim elements. Information gathering is considered insignificant extra solution activity. The specification doesn’t provide additional details that would distinguish the additional limitations recited in claim 1 steps [i]-[iii] from a generic implementation of the abstract idea. As such these additional claim elements are not directed to anything beyond conventional nature of these elements or otherwise more than well-understood, routine, conventional activity in the field of computing. These limitations either alone or in combination simply append well-understood, routine, conventional activities previously known to the industry, specified at a high level of generality, to the judicial exception.
As such, it has been recognized by court that receiving, processing, and storing data as well as receiving or transmitting data over a network are a well-understood, routine and conventional activities. Mortg. Grader, Inc. v. First choice Loan Servs. Inc., 811 F.3d 1314 (Fed. Cir. 2016) (generic computer components, such as interface, “network”, and “database,” fail to satisfy the inventive concept requirement); see also TLI Commc’ns, 823 F.3d 607; Elec. Power, 830 F.3d at 1350. There is no indication that the recited claim elements override the conventional use of known features or involve an unconventional arrangement or combination of elements such that the particular combination of generic technology results in anything beyond well-understood, routine, and conventional data gathering and output. Alice, 573 U.S. at 223 (“[T]he mere recitation of a generic computer cannot transform a patent ineligible abstract idea into a patent-eligible invention.”) See also Customedia Techs. LLC v. Dish Network Corp., 951 F.3d 1359, 1366(Fed. Cir. 2020) (“[T]he invocation of ‘already-available computers that are not themselves plausibly asserted to be an advance…amounts to a recitation of what is well-understood, routine, and conventional.”)(quoting SAP Am., Inc. v. InvestPic, LLC, 898F3.d 1161, 1170 (Fed. Cir. 2018)); and buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355(Fed. Cir 2014)(“That a computer receives and sends the information over a network -- with no further specification -- is not even arguably inventive.”).
Thus, Claims 1 and 14 , under broadest reasonable interpretation, directed to mental process abstract idea without integrating into a practical application and do not amount to significantly more.
Dependent claim 2 recites “wherein 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 plurality of execution platforms as the actual result value of the resource usage status on the each of the plurality of execution platforms”, which is a combination of observation, evaluation, judgement and opinion, and may be performed by human mind alone or with the help of pen and paper, according to the broadest reasonable interpretation of the claims.
Dependent claim 3 recites “wherein 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”, which is a combination of observation, evaluation, judgement and opinion, and may be performed by human mind, according to the broadest reasonable interpretation of the claims.
Dependent claim 5 recites “wherein determining comprises determining , based on smallest variation among variations indicated by the leveling index value identified for the plurality of execution platforms, the one of the plurality of execution platforms on which the application is to be constructed”, which is a combination of observation, evaluation, judgement and opinion, and may be performed by human mind, according to the broadest reasonable interpretation of the claims.
Dependent claim 6 recites “wherein identifying the leveling index value comprises identifying the leveling index value indicating, in the case in which the application has been constructed on the each of the plurality of execution platforms, a difference between a maximum value and a minimum value of the predicted values for the respective period types on the each of the plurality of execution platforms, and wherein determining comprises determining, based on smallest difference among differences indicated by the leveling index values identified for the plurality of execution platforms, the one of the plurality of execution platforms on which the application is to be constructed”, which is a combination of observation, evaluation, judgement and opinion, and may be performed by human mind, according to the broadest reasonable interpretation of the claims.
Dependent claim 9 recites “the operations further comprise constructing the application on the determined one of the plurality of execution platforms”, which is deploying the application on the platform and is neither inventive nor provide improvement to the technology and/or technical field, and also do not amount to significantly more because deploying application is well-understood, routine and conventional as recognized by one of ordinary skills in the art.
Dependent claim 10 recites “wherein the execution platform is a Kubernetes cluster”, which describes the execution platform, without further imposing limitations on the claim in such a manner to make the claim patent eligible.
Dependent claim 11 recites “wherein the application is an application included in a communication system”, which describes the application without further imposing limitations on the claim in such a manner to make the claim patent eligible.
Dependent claim 12 recites “wherein the application is a network function”, which describes the application without further imposing limitations on the claim in such a manner to make the claim patent eligible.
Dependent claim 13 recites “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”, which only defines the resource usage status without further imposing limitations on the claim in such a manner to make the claim patent eligible.
Therefore, the claim(s) 1-14 are rejected under 35 U.S.C. 101 as being directed to judicial exception without integrating into practical application or significantly more.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 1-3, 5-6, 9-14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Zhang et al. (US 2014/0325072 A1, hereafter Zhang) in view of Iwasa et al. (US 2021/0373968 A1, hereafter Iwasa).
Both Zhang and Iwasa were cited in the last office action.
As per claim 1, Zhang teaches the invention substantially as claimed including an execution platform determination system, comprising ([0011] execute, software programs, computing-related hardware resources [0031] computing nodes 120 for executing programs):
at least one processor; and
at least one memory device storing instructions which, when executed by the at least one processor, cause the at least one processor to perform operations comprising ([0073]):
identifying, for each of a plurality of execution platforms on which an application to be added is executable ([0034] selection of various different computing nodes, choose for executing program; fig. 4 405 425), an actual result value of a resource usage status on the each of the plurality of execution platforms ([0081] actual program execution capacity that is available from computing node groups; fig. 5 515 [0090] obtains actual execution capacity usage values used during prior execution of computing node group [0046] fig. 2A CPU utilization, network bandwidth utilization [0042] different computing system, program with different types or resource criteria and/or computing resource usage);
identifying, for each of the plurality of execution platforms ([0034] selection of various different computing nodes, choose for executing program; fig. 4 405 425 [0042]), a predicted value of the resource usage status on the each of the plurality of execution platforms obtained in a case in which the application has been constructed on the each of the plurality of execution platforms ([0091] generate predicted execution capacity usage values, multiple future times i.e. hypothetically executed in future [0090] predicted execution capacity information is to be generated, including information about one or more particular software programs that will be executed by the computing node group at one or more future times of interest [0034] various different computing node groups; fig. 6 generate predicted execution capacity values for the computing node group based on the obtained values 620 ) based on the actual result value relating to the each of the plurality of execution platforms ([0091] use prior actual capacity usages to generate corresponding predicted execution capacity usage values; fig. 6 actual execution capacity values used during prior execution of the computing node group 610),
wherein the predicted value comprises predicted values for respective period types ([0017] predicted future program execution capacity , future time intervals , future resource usage capacity e.g. use of hardware resources of one or more types [0018] predicted future program execution, future period of time; e.g. days / hours / weeks / months/ years, multiple time intervals of a different size [0078] predicted execution capacity information, particular times, after every time interval e.g. every hour, day [0104] predictions, specialized time period [0102] generate predicted capacity, Monday, time based categories );
identifying, for each of the plurality of execution platforms, based on the predicted value ([0091] use prior actual capacity usages to generate corresponding predicted execution capacity usage values; fig. 6 620), a leveling index value indicating, in a case in which the application has been constructed on the each of the plurality of execution platforms, a variation in the predicted values for the respective period types on the each of the plurality of execution platform ([0101] [0102] generate predicted capacity, Monday, time based categories, days-of-week, month-of-year, year-to-year [0103] [0105] upper and lower bounds for some or all predicted capacity usage amounts; uncertainty; deviation of the predicted data from actual data, tracked, determine the width of the prediction range, predicted value, varied, reflect type of software program e.g. standard deviation, percentile, uncertainty range; [0109] prediction, forecast, specified further data, determine a variation for the predicted, traffic fig. 8 835 840 [0018] adding upper and lower bounds for some or all predicted program execution capacity amounts for particular future time intervals, such as to reflect generated uncertainty for and/or confidence intervals for particular predicted program execution capacity amounts; etc. [0034] selection of various different computing nodes, choose for executing program; fig. 4 405 425); and
determining, based on the leveling index value, one of the plurality of execution platforms on which the application is to be constructed from among the plurality of the execution platforms ([0106] generated predicted capacity information, enable later acquisition and/or provisioning of computing node for the computing node group [0105] upper and lower bounds for some or all predicted capacity usage amounts; uncertainty; deviation of the predicted data from actual data, tracked, determine the width of the prediction range, predicted value, varied, reflect type of software program e.g. standard deviation, percentile, uncertainty range; fig. 8 835 840; particular computing node group, selected to be used in future [0078] predicted execution capacity information for particular computing node groups at particular times [0024] automatically governing dynamic program execution capacity modifications based on predicted information, manage amount of work handled by each computing node [0034] selection of various different computing nodes, choose for executing program; fig. 4 405 425 [0042] computing systems to select for executing particular programs [0043] particular computing node is selected to execute one or more programs).
Iwasa, however, teaches levelling ([0017] load leveling).
It would have been obvious to one of ordinary skills in the art before the effective filing date of the invention was made to combine the teachings of Zhang with the teachings of Iwasa of load levelling to improve efficiency, ease of use /description and allow levelling of the resource usage to the method of Zhang as in the instant invention.
The combination would have been obvious because applying the load levelling as taught by Iwasa to the method of determining the prediction range for software program as taught by Zhang to yield predictable result with improved efficiency and ease of use/description.
As per claim 2, Zhang teaches wherein 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 plurality of execution platforms as the actual result value of the resource usage status on the each of the plurality of execution platforms ([0081] actual program execution capacity that is available from computing node groups; fig. 5 515 [0090] obtains actual execution capacity usage values used during prior execution of computing node group [0046] fig. 2A CPU utilization, network bandwidth utilization [0042] different computing system, program with different types or resource criteria and/or computing resource usage [0026] total computing resources and program capacity of the group [0027] aggregate amount of one or more types of computing resources e.g. amounts of memory, hard drive space, CPU, network bandwidth).
As per claim 3, Zhang teaches wherein 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 a same type as the type of the application to be added ([0016] prediction, resource usage, historical information is assessed and adjusted to create predictions [0052] generating predicted time-series data based on assessing historical time-series data).
As per claim 5, Zhang teaches wherein determining comprises determining , based on smallest variation among variations indicated by the leveling index values identified for the plurality of execution platforms, the one of the plurality of execution platforms on which the application is to be constructed ([0105] determine the width of the prediction range, predicted value, varied, reflect type of software program e.g. standard deviation, percentile, uncertainty range [0090] deviating, mean/midpoint, threshold, standard deviation [0024] automatically governing dynamic program execution capacity modifications based on predicted information, manage amount of work handled by each computing node [0034] selection of various different computing nodes, choose for executing program; fig. 4 405 425 [0042] computing systems to select for executing particular programs [0043] particular computing node is selected to execute one or more programs [0025] dynamic modifications, program execution capacity modifications, satisfies some specified criteria such as largest, smallest).
Iwasa teaches remaining claim elements of leveling ([0017] load leveling).
As per claim 6, Zhang teaches wherein identifying the leveling index value comprises identifying the leveling index value indicating, in the case in which the application has been constructed on the each of the plurality of execution platforms, a difference between a maximum value and a minimum value of the predicted values for the respective period types on the each of the plurality of execution platforms ([0011] predictions, execution related capacity, future time period, months, years [0105] upper and lower bounds for some or all predicted capacity usage amounts; uncertainty; deviation of the predicted data from actual data, tracked, determine the width of the prediction range, predicted value, varied, reflect type of software program e.g. standard deviation, percentile, uncertainty range; fig. 8 835 840 [0101] time periods, days and/or month-of-year), and
wherein determining comprises determining, based on smallest difference among differences indicated by the leveling index values identified for the plurality of execution platforms, the one of the plurality of execution platforms on which the application is to be constructed ([0105] determine the width of the prediction range, predicted value, varied, reflect type of software program e.g. standard deviation, percentile, uncertainty range [0090] deviating, mean/midpoint, threshold, standard deviation [0024] automatically governing dynamic program execution capacity modifications based on predicted information, manage amount of work handled by each computing node [0025] dynamic modifications, program execution capacity modifications, satisfies some specified criteria such as largest, smallest [0034] selection of various different computing nodes, choose for executing program; fig. 4 405 425 [0042] computing systems to select for executing particular programs [0043] particular computing node is selected to execute one or more programs ).
Iwasa teaches remaining claim elements of leveling ([0017] load leveling).
As per claim 9, Zhang teaches the operations further comprise constructing the application on the determined one of the plurality of execution platforms ([0034] selection of various different computing nodes, choose for executing program; fig. 4 405 425 [0042] computing systems to select for executing particular programs [0043] particular computing node is selected to execute one or more programs).
As per claim 10, Iwasa teaches wherein the execution platform is a Kubernetes cluster ([0001] virtual infrastructure [0004] VMware vSphere, virtual infrastructure).
As per claim 11, Zhang teaches wherein the application is an application included in a communication system ([0072] computing system/nodes, mobile communication networks ).
As per claim 12, Iwasa teaches wherein the application is a network function (fig. 5 VNF).
As per claim 13, Zhang teaches 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 ([0046] fig. 2A CPU utilization, network bandwidth utilization [0042] different computing system, program with different types or resource criteria and/or computing resource usage).
Claim 14 recites method for elements similar to claim 1. Therefore, it is rejected for the same rationales.
Allowable Subject Matter
Examiner proposed amending claim 1 to include limitations of claim 6 and 9. Applicant didn’t accept the proposed amendments; and therefore, the proposed allowable subject matter has been withdrawn.
Response to Arguments
The previous objections to the specification have been withdrawn.
The previous 112(b) rejections have been withdrawn.
The previous double patenting rejections have been withdrawn.
Applicant's arguments filed on 06/25/2026 have been fully considered but they are not persuasive. In Applicant’s response filed on 06/25/2026, Applicant argues the following:
35 USC 101:
Claim 1 as a whole recites a specific ordered combination of steps that provides an improvement to computing resource management technology. Specifically, claim 1 recites: (1) "identifying, for each of a plurality of execution platforms on which an application to be added is executable, an actual result value of a resource usage status on the each of the plurality of execution platforms"; (2) "identifying, for each of the plurality of execution platforms, a predicted value of the resource usage status on the each of the plurality of execution platforms obtained in a case in which the application has been constructed on the each of the plurality of execution platforms based on the actual result value"; (3) "identifying, for each of the plurality of execution platforms, based on the predicted value, a leveling index value indicating, in a case in which the application has been constructed on the each of the plurality of execution platforms, a variation in the predicted values for the respective period types on the each of the plurality of execution platforms"; and (4) "determining, based on the leveling index value, one of the plurality of execution platforms on which the application is to be constructed from among the plurality of the execution platforms."
This ordered combination is not merely an abstract evaluation. The combination of steps as recited in claim 1 provides a specific technical solution to a specific technical problem: determining which execution platform among multiple candidates should host a new application by evaluating predicted resource usage leveling across the candidate platforms.
The result of this ordered combination is a concrete improvement to computing infrastructure management, namely more effective utilization of resources across execution platforms by selecting the platform that achieves the best leveling of resource usage.
This is analogous to the claims found eligible in USPTO Subject Matter Eligibility Example 37 (Relocation of Icons on a Graphical User Interface), Claim 1, where although the determining step (determining the amount of use of each icon) was a mental process, the claim as a whole integrated the mental process into a practical application because the additional elements recited a specific manner of automatically displaying icons to the user based on usage, which provided a specific improvement over prior systems, resulting in an improved user interface for electronic devices. Similarly, claim 1 here recites a specific manner of determining which execution platform should host a new application based on predicted resource usage leveling, which provides a specific improvement over prior systems in computing resource management.
Unlike Example 37, Claim 3, which merely determined the amount of use and ranked icons without any further action on the computer system and was found ineligible. Claim 1 here recites a multi-step technical process that culminates in "determining...one of the plurality of execution platforms on which the application is to be constructed," which is a concrete technical determination that directly governs how computing resources are allocated across execution platforms.
Because claim 1 as a whole integrates any alleged judicial exception into a practical application by providing a specific improvement to computing resource management technology, claim 1 is not directed to a judicial exception at Step 2A. Accordingly, reconsideration and withdrawal of claim 1, as being directed to non-statutory subject matter, are respectfully requested.
USC 103:
The Office failed to establish a prima facie case of obviousness, because the Office failed to properly determine the scope and content of the cited references. Claim 1 recites, in relevant part, "identifying, for each of the plurality of execution platforms, a predicted value of the resource usage status on the each of the plurality of execution platforms obtained in a case in which the application has been constructed on the each of the plurality of execution platforms based on the actual result value relating to the each of the plurality of execution platforms." This feature includes a hypothetical placement prediction: for each candidate execution platform, predicting what the resource usage status would be if the application to be added were constructed on that platform, based on the actual result value of that platform.
Zhang does not teach or suggest predicting, for each of multiple candidate execution platforms, what the resource usage status on each platform would be in a hypothetical scenario where the application to be added has been constructed on that platform. The prediction in Zhang answers the question "what will future capacity usage look like for this same group?" Claim 1, in contrast, recites answering the question "what would resource usage look like on each of several candidate platforms if a new application were placed there?" These are fundamentally different concepts, and Zhang fails to teach or suggest the claimed "predicted value" limitation.
Claim 1 as amended further recites that the predicted value comprises "predicted values for respective period types" and that the leveling index value indicates "a variation in the predicted values for the respective period types on the each of the plurality of execution platforms." Zhang does not teach or suggest identifying predicted values for respective period types in the context of hypothetical application placement on candidate execution platforms, or computing a leveling index value that indicates a variation in predicted values across period types on each candidate platform. Zhang's temporal forecasting predicts future capacity for the same computing node group over time, and does not involve evaluating variations in predicted resource usage across different period types for each of multiple candidate platforms. This further distinguishes claim 1 as amended over Zhang.
Claim 1 further recites "determining, based on the leveling index value, one of the plurality of execution platforms on which the application is to be constructed from among the plurality of the execution platforms." This feature includes selecting one execution platform from among multiple candidates based on a leveling index value that indicates a degree of leveling of resource usage.
The Office asserted that Zhang at paragraphs [0106], [0105], [0024], [0034], [0042], and [0043] teaches this limitation. However, Zhang paragraph [0106] describes storing generated predicted capacity information "to enable later acquisition and/or provisioning of computing nodes for the computing node group." See Zhang, paragraph [0106]. This is provisioning nodes for single group based on predicted future needs, not selecting among multiple candidate platforms. Zhang paragraphs [0034] and [0042]-[0043] describe general selection of computing nodes for executing programs, but this selection is based on resource availability and user preferences, not on a leveling index value derived from predicted resource usage. See Zhang, paragraphs [0034], [0042]-[0043]. Iwasa describes load leveling by switching Active/Standby VMs based on current actual load standard deviation, not by selecting a platform for placing a new application based on a leveling index value. See Iwasa, paragraph [0017]. The combination of Zhang and Iwasa therefore fails to teach or suggest the claimed "determining" limitation. Because the combination of Zhang and Iwasa fails to teach or suggest at least the "predicted value" and "determining" limitations of claim 1, claim 1 is not rendered obvious by the cited references. Accordingly, reconsideration and withdrawal of the rejection of claim 1, as being unpatentable over Zhang in view of Iwasa, are respectfully requested.
Examiner has thoroughly considered Applicant’s arguments, but respectfully, find them unpersuasive for at least the following reasons:
35 U.S.C. 101
With respect to point a: Examiner respectfully indicate that the argued improvement is valid to the extent that described invention is directed to improvement, however it has not been realized in the claim i.e. while claim does determine the execution platform, it doesn’t actually use the identified execution platform for constructing / executing the application. Examiner suggests amending the claim in such a manner as to realize the improvement into the claim e.g. constructing /executing the application on the determined one of the plurality of execution platforms as recited in claim 9, to overcome the 35 USC 101 abstract idea rejection.
With respect to point b, c, d: Same as claim point a. above.
With respect to point i.) Examiner respectfully indicate that all prediction is determined for hypothetical situation and not for current values. Zhang also teaches predicting usage /capacity for executing the program on different computing nodes based on the prior values ([0090][0091] [0034] fig. 6, 2A-B). As for different execution platform, Zhang clearly teaches different computing node groups and variation in computing node groups ([0031]-[[032] [0038] [0057]; fig. 1B 175, fig. 2A ), which is directed to different computing node groups or at least a variation of the groups. One of ordinary skills in the art would understand, predicted values could be obtained for any such of the modified groups of computing nodes ([0034] [0042]). In response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e. hypothetical values) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
With respect to point ii.) Applicant's arguments have been fully considered but they are moot in view of newly cited portion of the cited prior arts.
With respect to point iii.) Applicant’s argument is directed to selection of execution platforms based on leveling index value. As explained above with respect to point i.) above, Zhang teaches different computing node groups, which is equivalent to having potential multiple execution platform for execution of the application. In addition, Zhang also teaches modifying the configuration of the group of computing nodes based on predicted usage values, which further provides different arrangement of nodes for predicted usage. Zhang teaches determining variation in predicted values of different usage metrics and suggests selected a node group for future use ([0105]), which is equivalent to limitation of selecting based on the leveling index value. Examiner would like to point out that leveling index is same as variation in predicted use for different time period and is taught by Zhang([0105]). Iwasa is merely used for providing the leveling word, while variation of the different metric is taught by Zhang.
Examiners Note
Applicant is further reminded of that the cited paragraphs and in the references as applied to the claims above for the convenience of the applicant(s) and although the specified citations are representative of the teachings of 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 from the applicant in preparing responses, to fully consider all of the references in 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.
Conclusion
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The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Aronovich (US 11,366,694 B1) teaches estimating attributes of running workloads on platforms in a system of multiple platforms as a service.
Bai et al. (US 2023/0004436 A1) teaches container scheduling method based on estimated resource usage of the to-be-scheduled POD replica at a target time moment.
Cai et al. (US 2020/0342068 A1) teaches two-tier capacity planning
Matsura et al. (US 2020/0034209 A1) teaches management server managing computer resources and usage state of the computer resource, selecting computer resource executing an application having a relatively small degree of deviation from an initial expected execution time.
McAlister et al. (US 9,128,899 A1) teaches predictive failover planning.
Zhuang et al. (US 2017/0346889 A1) teaches co-locating application instance.
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).
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/ABU ZAR GHAFFARI/Primary Examiner, Art Unit 2195
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