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 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 13-20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more. Claim 1 requires:
a monitoring service coupled to the available cloud regions, the monitoring service operable to collect use data from the plurality of available cloud regions in relation to providing virtual desktops to other client devices;
a resource management engine coupled to the available cloud regions, the resource management engine operable to determine a score for each of a plurality of sets of the plurality of Cloud regions in relation to the client device; and
a control plane selecting a set of the plurality of Cloud regions from the plurality of sets according to the determined scores of each of the plurality of sets to provide the virtual desktop to the client device
The limitations of collect use data, determine a score, and selecting a set, as drafted, is a system that, under its broadest reasonable interpretation, covers performance of the limitation in the mind but for the recitation of generic computer components. That is, other than reciting “a monitoring service coupled to the available cloud regions,” “a resource management engine coupled to the available cloud regions,” and “a control plane,” nothing in the claim element precludes the step from practically being performed in the mind. For example, but for the monitoring service, resource management engine, and control plane, the collecting, determining, and selecting in the context of this claim encompasses the user mentally viewing data in a terminal, determining a score, and selecting a set of cloud regions. If a claim limitation, under its broadest reasonable interpretation, covers performance of the limitation in the mind but for the recitation of generic computer components, then it falls within the “Mental Process” grouping of abstract ideas. Accordingly, the claim recites an abstract idea.
This judicial exception is not integrated into a practical application. In particular, the claim additionally recites “[a] virtual desktop system comprising: a plurality of available Cloud regions that each include resources for providing a virtual desktop to a client device of a user via a network.” The plurality of available cloud regions are recited at a high-level of generality (i.e., as a generic computer hardware) 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 they do not impose any meaningful limits on practicing the abstract idea. The claim is directed to an abstract idea.
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 element of “[a] virtual desktop system comprising: a plurality of available Cloud regions that each include resources for providing a virtual desktop to a client device of a user via a network” amounts to no more than mere instructions to apply the exception using a generic computer component. Mere instructions to apply an exception using a generic computer component cannot provide an inventive concept. Accordingly, claim 1 is not patent eligible.
Regarding claim 2, it further refines the determined score; however, a human operator could determine scores on providers, locations, latency, and cost. Accordingly, claim 2 is ineligible.
Regarding claim 13, it further requires scoring based on values of requirement dimensions, which can be performed mentally. Accordingly, claim 13 is ineligible.
Regarding claim 14, it further requires weighting values of requirement dimensions, which can be performed mentally. Accordingly, claim 14 is ineligible.
Regarding claim 15, it further requires weighting based on predetermined rules, which can be performed mentally. Accordingly, claim 15 is ineligible.
Regarding claim 16, it further requires predetermined rules based on geographic diversity, which can be performed mentally. Accordingly, claim 16 is ineligible.
Regarding claim 17, a human operator could mentally reduce the number of total possible sets. Accordingly, claim 17 is ineligible.
Regarding claim 18, a human operator could exclude the sets based on user resource requirements. Accordingly, claim 18 is ineligible.
Regarding claims 19 and 20, they correspond to claim 1. Therefore, they are ineligible for the same reasons.
Claim Rejections - 35 USC § 103
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 (i.e., changing from AIA to pre-AIA ) 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.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claim(s) 1-7 and 17-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Sulcer (US 2021/0026661) and further in view of Zhao (US 2024/0020144).
Regarding claim 1, Sulcer teaches: A virtual desktop system (abstract, “A system and method for a virtual desktop system is disclosed”) comprising:
a plurality of available Cloud regions that each include resources for providing a virtual desktop to a client device of a user via a network (¶ 13, “the control plane has three separate groups of call center workers set up to use regional pools 54a, 54b, and 54c. Each of the regional pools 54a, 54b, and 54c, has respective templates that are created manually. The templates are run in different regional cloud datacenters 56a, 56b, and 56c.”);
a monitoring service coupled to the available cloud regions, the monitoring service operable to collect use data from the plurality of available cloud regions in relation to providing virtual desktops to other client devices (¶ 88, “The monitoring service 312 makes both routine and error events available to administrators and can analyze operational performance and reliability. The desktop management service 314 interacts with one or more managed virtual machines (MVMs) 332 in the regional cloud datacenter 330”);
a resource management engine coupled to the available cloud regions (¶ 128, “The desktop service control plane 710 thus includes a scaling service module 712, a machine learning module 714, an auto-scaling rules (ASR) module 716, and a desktop management service module 718”),
a control plane selecting a set of the plurality of Cloud regions from the plurality of sets ().
Sulcer does not teach; however, Zhao discloses: the resource management engine operable to determine a score for each of a plurality of sets of the plurality of Cloud regions in relation to the client device (¶ 44, “At stage 350, the SLCM service can calculate a provisioning score for each cloud service provider. The provisioning scores can be calculated using any method. In one example, the SLCM service can determine a cost per time unit for each cloud service provider”); and
a control plane selecting a set of the plurality of Cloud regions from the plurality of sets according to the determined scores of each of the plurality of sets (claim 3, “selecting, based on the provisioning scores, the selected cloud service provider based on the selected cloud service provider having a lowest provisioning score”).
It would have been obvious to a person having ordinary skill in the art, at the effective filing date of the invention, to have applied the known technique of the resource management engine operable to determine a score for each of a plurality of sets of the plurality of Cloud regions in relation to the client device; and a control plane selecting a set of the plurality of Cloud regions from the plurality of sets according to the determined scores of each of the plurality of sets, as taught by Zhao, in the same way to the resource management engine, as taught by Sulcer. Both inventions are in the field of provisioning virtual desktop resources, and combining them would have predictably resulted in “determining whether switching cloud service providers at the other location may lower network latency for the user,” as indicated by Zhao (¶ 2).
Regarding claim 2, Zhao teaches: The system of claim 1 wherein the scores are determined on at least one of provider, location, carbon rating, predicted status, predicted capacity, predicted initial latency, subsequent latency, and cost (claim 3, “calculating, for each of the plurality of cloud service providers, a provisioning score, the provisioning score being based on the cloud service provider's network latency score and provisioning cost multiplier”).
Regarding claim 3, Sulcer teaches: The system of claim 1, wherein the control plane provisions all the Cloud regions of the selected set of Cloud regions to provide the virtual desktop (¶ 134, “the desktop management service 718 may provision an expansion fabric region 728 with a full set of infrastructure and desktop service resources of its own, to handle the increased demand”).
Regarding claim 4, Sulcer teaches: The system of claim 3, wherein the control plane deactivates Cloud regions that do not belong to the selected set of Cloud regions (¶ 172, “determine whether expansion fabric regions need to be added or removed from the cloud desktop fabric (1208). If it is determined that region is no longer needed, the region is deprecated (1210). A region no longer needed is marked for removal, and new connection requests will be routed to other regions”).
Regarding claim 5, Zhao teaches: The system of claim 3, wherein the control plane reevaluates scores of each of the Cloud regions of the plurality of the Cloud regions on determining a changed condition (claim 6, “retrieving updated network latency data relating to the selected cloud service provider; determining, based on the updated network latency data relating to the selected cloud service provider, that the network latency at the selected cloud service provider exceeds a threshold”).
Regarding claim 6, Sulcer teaches: The system of claim 5, wherein the changed condition includes one of new Cloud regions are introduced (¶ 172, “one or more new expansion regions are created to implement the ideal coverage plan (1214)”), existing Cloud regions are deprecated (¶ 172, “If it is determined that region is no longer needed, the region is deprecated (1210)”), a change in a cost structure of a Cloud region, a significant new population of users, a significant change in user locations, and a change in technical capability of resources of one of the Cloud regions.
Regarding claim 7, Sulcer teaches: The system of claim 3, wherein the control plane reevaluates scores of the Cloud regions of the plurality of the Cloud regions periodically (¶ 171, “The control plane 710 is operable to perform periodic performance analysis of user activity (1202)”).
Regarding claim 17, Sulcer teaches: The system of claim 1, wherein the control plane determines the plurality of sets by reducing the number of total possible sets of the plurality of Cloud regions by eliminating certain of the total possible sets (claim 1, “a control plane operable to add a new expansion fabric region to the plurality of expansion fabric regions or eliminate one of the plurality of expansion fabric regions”).
Regarding claim 18, Sulcer teaches: The system of claim 17, wherein the sets are excluded based on at least one of user resource requirements, lack of diversity of service, lack of contractual advantages, or lack of increasing the score of the region set (claim 6, “the rule includes creating the new expansion fabric region or eliminating one of the plurality of expansion fabric regions based on at least one of optimizing network latency between the user and the dependent cloud resources, maintaining a service-level agreement with a customer representing the user, optimizing resource utilization, or distributing workloads”).
Claims 19 and 20 recite commensurate subject matter as claim 1. Therefore, they are rejected for the same reasons.
Claim(s) 8-11 is/are rejected under 35 U.S.C. 103 as being unpatentable over Sulcer and Zhao, as applied above, and further in view of Qadri (US 2019/0213104).
Regarding claim 8, Sulcer and Zhao do not teach; however, Qadri discloses: at least one of the plurality of Cloud regions are inactive (¶ 274, “The illustrated configuration includes a candidate cloud 350 which contains software and hardware components 352 provided by cloud component providers 356”) and wherein the determination of scores includes running a simulation for the inactive Cloud region (¶ 419, “a Cloud Simulation to simulate one or more aspects of the Candidate Cloud”).
It would have been obvious to a person having ordinary skill in the art, at the effective filing date of the invention, to have applied the known technique of at least one of the plurality of Cloud regions are inactive and wherein the determination of scores includes running a simulation for the inactive Cloud region, as taught by Qadri, in the same way to the plurality of cloud regions, as taught by Sulcer and Zhao. Both inventions are in the field of evaluating cloud regions for virtual resource deployment, and combining them would have predictably resulted in “facilitating cloud validation,” as indicated by Qadri (¶ 4).
Regarding claim 9, Sulcer discloses: The system of claim 8, wherein the simulation is run based on data from older connections between the user and the inactive Cloud region (¶ 171, “This may include machine learning or other techniques and can take past model data and regional infrastructure quality into account”).
Regarding claim 10, Sulcer discloses: The system of claim 8, wherein the simulation is run based on other users with a similar profile to the user (¶ 94, “The global pool 410 is associated with users of similar desktops”).
Regarding claim 11, Zhao discloses: The system of claim 8, wherein the simulation is run based on synthetically generated data by agents over simulated networks using test accounts running benchmark tests against the inactive Cloud region (¶ 21, “The SLCM agent can perform network tests and send the results to the NLD engine. Some examples of such tests can include pinging the client device, a traceroute, a One-Way Active Measurement Protocol (“OWAMP”) test, a Two-Way Active Measurement Protocol (“TWAMP”) test, or an Iperf test”).
Claim(s) 13-16 is/are rejected under 35 U.S.C. 103 as being unpatentable over Sulcer and Zhao, as applied above, and further in view of Pauley (US 9,491,035).
Regarding claim 13, Sulcer and Zhao do not teach; however, Pauley discloses: the scoring is based on values of a set of requirement dimensions (col. 8:40-43, “Service discovery dimension component 308 represents the dimensions that are specified in the service discovery request created by the user via UI 306. In this example, the request includes five dimensions {capability, cost, trust, location, SLA}”).
It would have been obvious to a person having ordinary skill in the art, at the effective filing date of the invention, to have applied the known technique of the scoring is based on values of a set of requirement dimensions, as taught by Pauley, in the same way to the plurality of cloud regions, as taught by Sulcer and Zhao. Both inventions are in the field of evaluating cloud regions for virtual resource deployment, and combining them would have predictably resulted in “discovering and evaluating services that are available via such a cloud infrastructure,” as indicated by Pauley (col. 1:7-8).
Regarding claim 14, Pauley discloses: The system of claim 13, further comprising weighting the values of the set of requirement dimensions (col. 5:48-50, “A weighted appropriateness score is computed for each of the proposed services based on each service discovery response”).
Regarding claim 15, Pauley discloses: The system of claim 13, wherein the weighting is based on predetermined rules (col. 8:33-36, “the user can specify what the required scores/ranges need to be for the capability query 350-1, the cost query 350-2, the trust query 350-3, the location query 350-4, and the SLA query 350-5”).
Regarding claim 16, Zhao discloses: The system of claim 15, wherein the predetermined rules include geographic diversity or Cloud provider diversity (claim 5, “determining a geographic location of the client device, wherein the network latency data and provisioning cost data are based on the geographic location”).
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 1-25 of U.S. Patent No. US 12,436,816 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because the U.S. Patent No. US 12,436,816 B2 teaches or at least suggests each and every limitation of the instant application. See claim correspondence below.
Instant Application
U.S. Patent No. US 12,436,816 B2
A virtual desktop system comprising:
Claim 1, “A virtual desktop system”
a plurality of available Cloud regions that each include resources for providing a virtual desktop to a client device of a user via a network;
Claim 1, “a plurality of available cloud regions that each include desktop agents, gateways, and associated resources for providing a pool of virtual desktops to client devices of a plurality of users;”
a monitoring service coupled to the available cloud regions, the monitoring service operable to collect use data from the plurality of available cloud regions in relation to providing virtual desktops to other client devices;
Claim 1, “a monitoring service coupled to the available cloud regions, the monitoring service operable to collect constraint data from the plurality of available cloud regions and operational data from the desktop agents and the client devices;”
a resource management engine coupled to the available cloud regions, the resource management engine operable to determine a score for each of a plurality of sets of the plurality of Cloud regions in relation to the client device;
Claim 1, “produce a cloud usage profile for at least one subset of the plurality of users based on the operational data from desktop agents and client devices;”
and a control plane selecting a set of the plurality of Cloud regions from the plurality of sets according to the determined scores of each of the plurality of sets to provide the virtual desktop to the client device.
Claim 1, “recommend the highest priority cloud region from the priority list for the user of a client device requesting a desktop; and a control plane selecting a cloud region according to the priority list to provide the desktop to the client device.”
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JACOB D DASCOMB whose telephone number is (571)272-9993. The examiner can normally be reached M-F 9:00-5:00.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
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.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/JACOB D DASCOMB/Primary Examiner, Art Unit 2198
Prosecution Insights