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 .
Response to Arguments
Applicant's arguments filed 09/14/2026 have been fully considered but they are not persuasive.
On page 11 of the remark, applicant argued: “ The Examiner's characterization of the claimed "determine" steps as mental processes fails to account for the inherently technological nature of the claimed operations. Claim 1 recites that a first computing node is configured to "determine a first result using the subset of the information, wherein the first result includes a first virtual machine allocation and a first container placement strategy to achieve the predefined objective," and that a second computing node independently determines a corresponding second result. As the specification explains, "virtual machine allocation" refers to "assigning or provisioning virtual machine on host“. The examiner disagrees. Determining VM allocations can be performed on paper. A case in point: university professors often demonstrate VM allocations (assign VM to a server) on a classroom blackboard. Furthermore, engineers routinely work out VM assignment examples on paper/whiteboard before implementation in SW.
On page 13 of the remark, applicant argued: “Claim 1 departs from this convention by reciting multiple independent computing nodes that each generate their own VM allocation and container placement solution, with a separate third processor that evaluates fitness values based on actual hardware performance metrics-time and energy-to select the optimal result. This is not a well-understood, routine, or conventional arrangement of computing components”. The examiner disagrees. Reciting three processors in claim 1 does not (under the broadest reasonable interpretation) eliminate the possibility to have “a centralized algorithm in which the decision-making process is performed in a centralized manner”. A centralized algorithm (on mulit-processors) occurs routinely in shared-memory and high performance computing environments. It is thus not clear how claim 1 provides a technical improvement.
Allowable Subject Matter
Claims 2-7, 9-14, and 16-20 objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening 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.
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, 8 , and 15 are rejected under 35 U.S.C. 101.
As per claim 1, the claim recites a method, therefore is a process.
“ . . . determine a first result using the subset of the information, wherein the first result includes a first virtual machine allocation and a first container placement strategy to achieve the predefined objective . . . determine a second result using the subset of the information, wherein the second result includes a second virtual machine allocation and a second container placement strategy to achieve the predefined objective . . . determine a first fitness value associated with the first result, wherein the first fitness value is determined based at least in part upon time taken by the first computing node to complete a task and an energy consumed by the first computing node . . . determine a second fitness value associated with the second result, wherein the second fitness value is determined based at least in part upon time taken by the second computing node to complete a task and an energy consumed by the second computing node . . . identify a highest fitness value from among the first fitness value and the second fitness value . . . “ These limitations, as drafted, are processes that, under its broadest reasonable interpretation, cover performance of the limitation in the mind but for the recitation of generic computer components. Thus, the claim recites a mental process.
“receive a subset of the information pertaining to a predefined objective that is to be achieved . . . receive the subset of the information pertaining to the predefined objective that is to be achieved . . . receive the first result . . . receive the second result . . . output a solution with the virtual machine allocation and the container placement strategy according to the first result or the second result that has the identified highest fitness value “ amounts to data gathering which is considered to be insignificant extra solution activity (MPEP 2106.05(g); this limitation 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).
As discussed above, “receive a subset of the information pertaining to a predefined objective that is to be achieved . . . receive the subset of the information pertaining to the predefined objective that is to be achieved . . . receive the first result . . . receive the second result . . . output a solution with the virtual machine allocation and the container placement strategy according to the first result or the second result that has the identified highest fitness value “ amounts to data gathering which is considered to be insignificant extra solution activity (MPEP 2106.05(g); this limitation 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 claim is ineligible.
As per claim 8, see rejection on claim 1.
As per claim 15, see rejection on claim 1.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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, Pierre Vital 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
