DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim 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 1-7 and 15-20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
Step 1:
According to the first part of the analysis, in the instant case, claims 1-7 are directed to a computer implemental method and claims 15-20 are directed to using a system comprising memory and processor to perform a method. Thus, each of the claims falls within one of the four statutory categories (i.e. process, machine, manufacture, or composition of matter).
Regarding claim 1:
A computer-implemented method for implementing disaster recovery, the method comprising:
receiving weather forecasting data pertaining to a first location;
generating a prediction of a likelihood of a future severe weather event occurring at the first location where a workload is running that necessitates disaster recovery based on the received weather forecasting data using a model trained to predict future severe weather events at the first location; and
determining whether to transfer processing of the workload from the first location to a second location based on the prediction.
Step 2A Prong 1:
“receiving weather forecasting data pertaining to a first location” is directed to mental step of data gathering.
“generating a prediction of a likelihood of a future severe weather event occurring at the first location where a workload is running that necessitates disaster recovery based on the received weather forecasting data using a model trained to predict future severe weather events at the first location” is directed to math because the process utilizing meteorological modeling, probability and machine learning. Weather forecasts output probabilities rather than absolute certainties. The machine learning model predicting the weather event uses algorithms such as neural networks or decision trees which built entirely on linear algebra, calculus, and optimization techniques.
“determining whether to transfer processing of the workload from the first location to a second location based on the prediction” is directed to math because mathematical thresholds are set to determine when the probability of a storm becomes high enough to justify the costly process of transferring a workload..
The claim recites the step of "generating a prediction of a likelihood of a future severe weather event occurring at the first location where a workload is running that necessitates disaster recovery based on the received weather forecasting data using a model trained to predict future severe weather events at the first location; and determining whether to transfer processing of the workload from the first location to a second location based on the prediction” which as drafted, under BRI recites a mathematical calculation. The grouping of "mathematical concepts” in the 2019 PED includes "mathematical calculations" as an exemplar of an abstract idea. 2019 PEG Section |, 84 Fed. Reg. at 52. Thus, the recited limitation falls into the "mathematical concept" grouping of abstract ideas. This limitation also falls into the “mental process” group of abstract ideas, because the recited mathematical calculation is simple enough that it can be practically performed in the human mind, e.g., scientists and engineers have been solving the Arrhenius equation in their minds since it was first proposed in 1889.
Note that even if most humans would use a physical aid (e.g., pen and paper, a slide rule, or a calculator) to help them complete the recited calculation, the use of such physical aid does not negate the mental nature of this limitation. See October Update at Section I(C)(i) and (iii).
Additional Elements:
Step 2A Prong 2:
“A computer-implemented method for implementing disaster recovery, the method comprising” recited in the preamble does not integrate the judicial exception into a practical application. This additional element is merely using a computer as a tool to perform an abstract idea (see MPEP 2106.05(h)).
“receiving weather forecasting data pertaining to a first location” does not integrate the judicial exception into a practical application. This additional element is merely using a computer as a tool to perform an abstract idea (see MPEP 2106.05(h)).
“generating a prediction of a likelihood of a future severe weather event occurring at the first location where a workload is running that necessitates disaster recovery based on the received weather forecasting data using a model trained to predict future severe weather events at the first location” does not integrate the judicial exception into a practical application. This additional element is merely using a computer as a tool to perform an abstract idea (see MPEP 2106.05(h)).
“determining whether to transfer processing of the workload from the first location to a second location based on the prediction” is directed to insignificant activity and does not integrate the judicial exception into a practical application. See MPEP 2106.05(g).
The claim is merely selecting data, manipulating or analyzing the data using math and mental process, and displaying the results.
This is similar to electric power: MPEP 2106.05(h) vi. Limiting the abstract idea of collecting information, analyzing it, and displaying certain results of the collection and analysis to data related to the electric power grid, because limiting application of the abstract idea to power-grid monitoring is simply an attempt to limit the use of the abstract idea to a particular technological environment, Electric Power Group, LLC v. Alstom S.A., 830 F.3d 1350, 1354, 119 USPQ2d 1739, 1742 (Fed. Cir. 2016).
Whether the claim invokes computers or other machinery merely as a tool to perform an existing process. Use of a computer or other machinery in its ordinary capacity for economic or other tasks (e.g., to receive, store, or transmit data) or simply adding a general purpose computer or computer components after the fact to an abstract idea (e.g., a fundamental economic practice or mathematical equation) does not integrate a judicial exception into a practical application or provide significantly more. See Affinity Labs v. DirecTV, 838 F.3d 1253, 1262, 120 USPQ2d 1201, 1207 (Fed. Cir. 2016) (cellular telephone); TLI Communications LLC v. AV Auto, LLC, 823 F.3d 607, 613, 118 USPQ2d 1744, 1748 (Fed. Cir. 2016) (computer server and telephone unit). Similarly, "claiming the improved speed or efficiency inherent with applying the abstract idea on a computer" does not integrate a judicial exception into a practical application or provide an inventive concept. Intellectual Ventures I LLC v. Capital One Bank (USA), 792 F.3d 1363, 1367, 115 USPQ2d 1636, 1639 (Fed. Cir. 2015). In contrast, a claim that purports to improve computer capabilities or to improve an existing technology may integrate a judicial exception into a practical application or provide significantly more. McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299, 1314-15, 120 USPQ2d 1091, 1101-02 (Fed. Cir. 2016); Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335-36, 118 USPQ2d 1684, 1688-89 (Fed. Cir. 2016). See MPEP §§ 2106.04(d)(1) and 2106.05(a) for a discussion of improvements to the functioning of a computer or to another technology or technical field.
Claim 1 recites the additional element(s) of using generic AI/ML technology, i.e. ***a model trained***, to perform data evaluations or calculations, as identified under Prong 1 above. The claims do not recite any details regarding how the AI/ML algorithm or model functions or is trained. Instead, the claims are found to utilize the AI/ML algorithm as a tool that provides nothing more than mere instructions to implement the abstract idea on a general purpose computer. See MPEP 2106.05(f). Additionally, the use of the *** model trained *** merely indicates a field of use or technological environment in which the judicial exception is performed. See MPEP 2106.05(h). Therefore, the use of ** model trained *** to perform steps that are otherwise abstract does not integrate the abstract idea into a practical application. See the 2024 Guidance Update on Patent Subject Matter Eligibility, Including on Artificial Intelligence; and Example 47, ineligible claim 2.
The claim as a whole does not meet any of the following criteria to integrate the judicial exception into a practical application:
An additional element reflects an improvement in the functioning of a computer, or an improvement to other technology or technical field;
an additional element that applies or uses a judicial exception to effect a particular treatment or prophylaxis for a disease or medical condition;
an additional element implements a judicial exception with, or uses a judicial exception in conjunction with, a particular machine or manufacture that is integral to the claim;
an additional element effects a transformation or reduction of a particular article to a different state or thing; and
an additional element applies or uses the judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment, such that the claim as a whole is more than a drafting effort designed to monopolize the exception.
Step 2B:
“A computer-implemented method for implementing disaster recovery, the method comprising” recited in the preamble does not amount to significantly more than the judicial exception in the claim. This additional element is merely using a computer as a tool to perform an abstract idea (see MPEP 2106.05(h)).
“receiving weather forecasting data pertaining to a first location” does not amount to significantly more than the judicial exception in the claim. This additional element is merely using a computer as a tool to perform an abstract idea (see MPEP 2106.05(h)).
“generating a prediction of a likelihood of a future severe weather event occurring at the first location where a workload is running that necessitates disaster recovery based on the received weather forecasting data using a model trained to predict future severe weather events at the first location” does not amount to significantly more than the judicial exception in the claim. This additional element is merely using a computer as a tool to perform an abstract idea (see MPEP 2106.05(h)).
“determining whether to transfer processing of the workload from the first location to a second location based on the prediction” is directed to insignificant activity and does not amount to significantly more than the judicial exception in the claim. See MPEP 2106.05(g) and 2106.05(d)(ii), third list, (iv).
The claim is therefore ineligible under 35 USC 101.
Claim 15 is similar to claim 1 but recites a system, comprising: a memory for storing a computer program for implementing disaster recovery; and a processor connected to the memory, wherein the processor is configured to execute program instructions of the computer program to implement a method. These additional elements fail to integrate the abstract idea into a practical application. These limitations are recited at a high level of generality and do not add significantly more to the judicial exception. These elements are generic computing devices that perform generic functions. Using generic computer elements to perform an abstract idea does not integrate an abstract idea into a practical application. See 2019 Guidance, 84 Fed. Reg. at 55. Moreover, “the mere recitation of a generic computer cannot transform a patent-ineligible abstract idea into a patent-eligible invention.” Alice, 573 U.S. at 223; see also FairWarninglP, LLCv. latric SysInc., 839 F.3d 1089, 1096 (Fed. Cir. 2016) (citation omitted) (“[T]he use of generic computer elements like a microprocessor or user interface do not alone transform an otherwise abstract idea into patent-eligible subject matter”). On the record before us, we are not persuaded that the hardware of claim 15 integrates the abstract idea into a practical application. Nor are we persuaded that the additional elements are anything more than well-understood, routine, and conventional so as to impart subject matter eligibility to claim 15.
Regarding claims 2 and 16, “wherein the prediction corresponds to a value, wherein the processing of the workload is transferred from the first location to the second location in response to the prediction exceeding a threshold value” does not integrate the judicial exception into a practical application. It does not amount to significantly more than the judicial exception in the claim. This additional element is merely using a computer as a tool to perform an abstract idea (see MPEP 2106.05(h)).
Regarding claims 3 and 17, “wherein the first location corresponds to a first data center, wherein the second location corresponds to a second data center” does not integrate the judicial exception into a practical application. It does not amount to significantly more than the judicial exception in the claim. This additional element is merely using a computer as a tool to perform an abstract idea (see MPEP 2106.05(h)).
Regarding claims 4 and 18, “wherein the prediction corresponds to a value, wherein the method further comprises: generating a runbook using generative artificial intelligence in response to the prediction exceeding a threshold value, wherein the runbook comprises instructions for transferring the processing of the workload from the first location to the second location; and transferring the processing of the workload from the first location to the second location in accordance with the runbook” does not integrate the judicial exception into a practical application. It does not amount to significantly more than the judicial exception in the claim. This additional element is merely using a computer as a tool to perform an abstract idea (see MPEP 2106.05(h)).
Regarding claims 5 and 19, “training a generative artificial intelligence model to generate a runbook providing instructions for transferring the processing of the workload from the first location to the second location based on system architectures of data centers located at the first and second locations, and backup operations procedures” does not integrate the judicial exception into a practical application. It does not amount to significantly more than the judicial exception in the claim. This additional element is merely using a computer as a tool to perform an abstract idea (see MPEP 2106.05(h)).
Regarding claims 6 and 20, “training the model to predict future severe weather events occurring at the first location that necessitates disaster recovery based on training data consisting of situations requiring disaster recovery at the first location based on weather forecasting data for the first location” does not integrate the judicial exception into a practical application. It does not amount to significantly more than the judicial exception in the claim. This additional element is merely using a computer as a tool to perform an abstract idea (see MPEP 2106.05(h)).
Regarding claim 7, “wherein the weather forecasting data comprises a prediction of one or more of the following to occur at a future time at the first location from the group consisting of: temperature, precipitation, humidity, wind speed, wind direction, cloud coverage, and air pressure” does not integrate the judicial exception into a practical application. It does not amount to significantly more than the judicial exception in the claim. This additional element is merely using a computer as a tool to perform an abstract idea (see MPEP 2106.05(h)).
Claims 8-14 are rejected under 35 U.S.C. 101 because the claimed invention is directed to non- statutory subject matter. The claims do not fall within at least one of the four categories of patent eligible subject matter because the claims are directed to software per se. Applicant has claimed “[a] computer program product comprising a computer readable storage medium” and the broadest reasonable interpretation of “computer program product comprising a computer readable storage medium “ includes a software module comprising a transitory propagating signal for performing the claimed, and thus, these features recite software per se, which is non-statutory subject matter. Further, in the recitation of “a computer readable storage medium having program code embodied therewith, the program code comprising program instructions...,”. As a result, these claims must be rejected under 35 U.S.C. § 101 as covering non-statutory subject matter. See In re Nuijten, 500 F.3d 1346, 1356-57 (Fed. Cir. 2007). In order to overcome this rejection under 35 U.S.C. 101, the Office recommends amending the claims so that they recite only non-transitory computer-readable medium.
Claims 9-14 do not cure the aforementioned deficiencies of claim 8, and thus, these claims are rejected for the reasons set forth above.
Hence the claims 1-20 are treated as ineligible subject matter under 35 U.S.C. § 101.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 1, 8, and 15 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Schulze et al. (US 11,144,342).
Regarding claim 1, 8, and 15, Schulze et al. disclose a system, program, and computer-implemented method for implementing disaster recovery (Col.7, lines 30-32), the method comprising:
receiving weather forecasting data pertaining to a first location;
generating a prediction of a likelihood of a future severe weather event occurring at the first location where a workload is running that necessitates disaster recovery based on the received weather forecasting data using a model trained to predict future severe weather events at the first location; and
determining whether to transfer processing of the workload from the first location to a second location based on the prediction.
Other Prior Art
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure:
Borges Oliveira et al. (US2023/0408726) disclose a method, computer system, and a computer program for weather prediction. The method may include receiving a first weather event associated with a first location. The invention may further include inputting the first weather event into a machine learning model generated via mapping historical weather data into a latent space and via identifying, in the latent space, climate teleconnections amongst historical weather events at various locations. The method may further include in response to the inputting, receiving by the computing device a weather prediction for a second location, the weather prediction being based on a predicted climate teleconnection between the first location and the second location with respect to the first weather event, wherein the teleconnections machine learning model maps the first weather event into latent code for the latent space in order to generate the weather prediction for the second location. Workloads layer provides examples of functionality for which the cloud computing environment may be utilized. Examples of workloads and functions which may be provided from this layer include: mapping and navigation; software development and lifecycle management; virtual classroom education delivery; data analytics processing; and transaction processing.
Schulze et al. (US 11,144,342) disclose a method for hazard-aware service arbitration for usage by cloud service brokers. Natural and manmade hazards affecting a cloud service providers (CSP) may cause severe impacts to a client's workload. In order to lower the risk of disaster-induced outages for clients, these embodiments propose to enable the CSB with awareness about arising or on-going hazards and the capability to detect the event of a disaster at the CSP 's data center location. With the proposed method, the CSB may be enabled to gather information about hazards from different sources such as weather forecasts, hazard alarm systems, earthquake warning systems, news feeds and location-based safety recommender systems. Based on the data center locations of the CSP’s, the CSB may use the hazard information to assess the potential impact on the different sites of the CSPs and to create a hazard risk profile for each CSP including each of its data centers. Using the calculated likelihood that a disaster at a CSPs site will occur and the projected time until the potential disaster, the CSP may determine actions to proactively evacuate a client's workload by relocating it to another CSP. In case the CSB detects the event of a disaster in a site of a CSP based on the information from its own monitoring system and information from the sources mentioned above, the CSB may automatically trigger a recovery at another site of the same or another CSP.
Angeles et al. (US 9,898,359) disclose a method for providing predictive disaster recovery of cloud services, the method comprising: receiving, by one or more computer processors, environmental data associated with a first computer; receiving, by one or more computer processors, social media data associated with the first computer; determining, by one or more computer processors, a first severity value based on the environmental data; determining, by one or more computer processors, a second severity value based on the social media data; determining, by one or more computer processors, a first weighted severity score, wherein the first weighted severity score is a combination of the first severity value and the second severity value; determining, by one or more computers, one or more actions, wherein each action of the one or more actions is selected from the group consisting of a recovery point objective action and a recovery time objective action, and wherein each action of the one or more actions has a threshold; determining, by one or more computer processors, whether the determined first weighted severity score is equal to or greater than any threshold associated with any actions of the one or more actions; and responsive to determining that the determined first weighted severity score is equal to or greater than one or more thresholds, implementing, by one or more computer processors, the one or more actions associated with the one or more thresholds.
Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JOHN H LE whose telephone number is (571)272-2275. The examiner can normally be reached on Monday-Friday from 7:00am – 3:30pm Eastern Time.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Shelby A. Turner can be reached on (571) 272-6334. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JOHN H LE/Primary Examiner, Art Unit 2857
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