DETAILED ACTION
This action is responsive to application filed on April 23, 2024.
Claims 1-20 are pending and are presented to examination.
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
Examiner Notes
Examiner cites particular columns, paragraphs, figures and line numbers in the references as applied to the claims below for the convenience of the applicant. Although the specified citations are representative of the teachings in the art and are applied to the specific limitations within the individual claim, other passages and figures may apply as well. It is respectfully requested that, in preparing responses, the applicant fully consider the references in their entirety as potentially teaching all or part of the claimed invention, as well as the context of the passage as taught by the prior art or disclosed by the examiner.
Drawings
The drawings filed on April 23, 2024 are acceptable for examination purposes.
Information Disclosure Statement
As required by M.P.E.P. 609, the applicant’s submission of the Information Disclosure Statement dated April 23, 2024 is acknowledged by the examiner and the cited references have been considered in the examination of the claims now pending.
Claim Objections
Claims 1-20 are objected to because of the following informalities:
Claim 1, lines 4, 6, and 9, before “by” and after Analyzer”, insert --,--, respectively. Claims 8 and 15 have the similar issue. Claim 7 (and similar for claim 14 and 20) recites “wherein the predicting comprises computing a machine learning algorithm based on historical process data.” Appropriate correction is required. Please amend the claim language as suggested in bold. Dependent claims 2-6, 9-14, and 16-20 do not overcome the deficiency of the objected claims and, therefore, are objected for the same reasons as the objected 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 1-20 are rejected under 35 U.S.C. 101 because the claimed invention recites a judicial exception, is directed to that judicial exception, an abstract idea, as it has not been integrated into practical application and the claims further do not recite significantly more than the judicial exception. Examiner has evaluated the claims under the framework provided in the 2019 Patent Eligibility Guidance published in the Federal Register 01/07/2019 and has provided such analysis below.
Step 1: Claims 1-7 are directed to methods and fall within the statutory category of processes; Claims 8-14 are directed to media and fall withing the statutory category of manufactures; and Claims 15-20 are directed to systems and fall within the statutory category of machines. Therefore, “Are the claims to a process, machine, manufacture or composition of matter?” Yes.
In order to evaluate the Step 2A inquiry “Is the claim directed to a law of nature, a natural phenomenon or an abstract idea?” we must determine, at Step 2A Prong 1, whether the claim recites a law of nature, a natural phenomenon or an abstract idea and further whether the claim recites additional elements that integrate the judicial exception into a practical application.
Step 2A Prong 1:
Claims 1, 8 and 15 as drafted, recite a process that, under its broadest reasonable interpretation, covers steps that could reasonably be performed in the mind, including with the aid of pen and paper, but for the recitation of generic computer components. That is, the limitations: a) “detecting, ” – Mental processes (see MPEP 2106.04(a)(2), III), this limitation can be reasonable performed by a human, wherein a person can identify (e.g. reading a log, via user interface) when an upgrade is needed in a system/server/computer/node.
b) “responsive to the detecting the hot upgrade, predicting ” – Mental processes (see MPEP 2106.04(a)(2), III), this limitation can be reasonable performed by a human mind, where a person may analyze logs/records/data to suggest/identify a target machine/server/node/computer to be used for the upgrade. c) “generating - Mental processes (see MPEP 2106.04(a)(2), III), this limitation can be reasonable performed by a human mind, wherein a person using pen and paper can create an upgrade plan based on data. That is, nothing in the claim elements precludes the step from practically being performed in the mind or with a pen and paper, (i.e., “detecting”, “predicting” and, “generating”) can be performed in the human mind through observation, evaluation, judgment, opinion. Thus, these limitations fall within the “Mental Processes” grouping of abstract ideas.
Therefore, Yes, claims 1, 8 and 15 recite judicial exceptions.
The claims have been identified to recite judicial exceptions, Step 2A Prong 2 will evaluate whether the claims are directed to the judicial exception.
Step 2A Prong 2:
This judicial exception is not integrated into a practical application. The claims recite the following additional elements: “a process monitor”, “a system”, “a process analyzer”, “a device upgrade manager”, “a computer program product”, “one or more computer readable storage media”, “a processor” and “a computer system”. The additional elements are merely instructions to implement an abstract idea on a computer, or merely using a generic computer or computer components as a tool to perform the abstract idea (see MPEP 2106.05(f)). Accordingly, the additional elements recited in the claims do not integrate the abstract idea into a practical application because it does not impose any meaningful limits on practicing the abstract idea, thus failing to integrate the abstract idea into a practical application.
Therefore, “Do the claims recite additional elements that integrate the judicial exception into a practical application? No, these additional elements do not integrate the abstract idea into a practical application and they do not impose any meaningful limits on practicing the abstract idea. The claim is directed to an abstract idea.
After having evaluating the inquires set forth in Steps 2A Prong 1 and 2, it has been concluded that claims 1, 8 and 15 not only recites a judicial exception but that the claim is directed to the judicial exception as the judicial exception has not been integrated into practical application.
Step 2B:
As discussed above with respect to integration of the abstract idea into a practical application, the additional elements “a process monitor”, “a system”, “a process analyzer”, “a device upgrade manager”, “a computer program product”, “one or more computer readable storage media”, “a processor” and “a computer system” are generic computer components used as tools to perform the abstract idea. Furthermore, the additional element “deploying as drafted is a Well-Understood, Routine, Conventional Activity (See MPEP 2106.05(d)). See for example, Arnold et al. (US Pat. No. 8,607,208) column 1 line 46 – column 2 line 3. Accordingly, the additional elements recited in the claims cannot provide an inventive concept. In addition, after further evaluation the claim as a whole doesn’t improve any function of a computer or to any other technology or technical field. Thus, the claims are not patent eligible.
Therefore, “Do the claims recite additional elements that amount to significantly more than the judicial exception? No, these additional elements, alone or in combination, do not amount to significantly more than the judicial exception.
Having concluded analysis within the provided framework, Claims 1, 8 and 15 do not recite patent eligible subject matter under 35 U.S.C. § 101. With regards to claim 2 (and similar for claims 9 and 16), it recites “further comprising a Process Controller wherein the Process Controller holds a task until the deploying by the Device Upgrade Manager the hot upgrade to the second version on a device of the system is complete.” as drafted, the claim recites mere instructions to apply an exception (See MPEP 2106.05(f)). Moreover, claim 2 does not recite any other additional elements and for the same reasons as above with regard to integration into practical application and whether additional elements amount to significantly more, claim 2 also fails both Step 2A prong 2, thus the claim is directed to the judicial exception as it has not been integrated into practical application, and fails Step 2B as not amounting to significantly more Therefore, Claim 2 does not recite patent eligible subject matter under 35 U.S.C. § 101. With regards to claim 3 (and similar for claims 10 and 17), it recites “wherein the deploying by the Device Upgrade Manager further comprises deciding to reserve a number of devices deployed with the first version based in part on a total number of devices and a number of current process instances.” as drafted, is a process that, but for the recitation of generic computing components, under its broadest reasonable interpretation, covers performance of the limitation in the mind and/or using pen and paper. For example, a person can decide and reserve a number of machines based on evaluation of data. Also, it could be interpreted as an Insignificant Extra-Solution Activity (See MPEP 2106.05(g) – mere data gathering). Moreover, claim 3 does not recite any other additional elements and for the same reasons as above with regard to integration into practical application and whether additional elements amount to significantly more, claim 3 also fails both Step 2A prong 2, thus the claim is directed to the judicial exception as it has not been integrated into practical application, and fails Step 2B as not amounting to significantly more Therefore, Claim 3 does not recite patent eligible subject matter under 35 U.S.C. § 101. With regards to claim 4 (and similar for claims 11 and 18), it recites “wherein the number of devices deployed with the first version is based on a ratio of the number of current process instances and a total number of process instances if the total number of devices is less than the total number of instances.” as drafted, is a process that, but for the recitation of generic computing components, under its broadest reasonable interpretation, covers performance of the limitation in the mind and/or using pen and paper. For example, a person can evaluate/identify a number of machines based on evaluation of data/ratio. Also, it could be interpreted as an Insignificant Extra-Solution Activity (See MPEP 2106.05(g) – mere data gathering). Moreover, claim 4 does not recite any other additional elements and for the same reasons as above with regard to integration into practical application and whether additional elements amount to significantly more, claim 4 also fails both Step 2A prong 2, thus the claim is directed to the judicial exception as it has not been integrated into practical application, and fails Step 2B as not amounting to significantly more Therefore, Claim 4 does not recite patent eligible subject matter under 35 U.S.C. § 101. With regards to claim 5 (and similar for claim 12), it recites “wherein the number of devices deployed with the first version is equal to the number of current process instances.” as drafted, the claim is mere instructions to apply an exception (See MPEP 2106.05(f) and/or an Insignificant Extra-Solution Activity (See MPEP 2106.05(g)). Moreover, claim 5 does not recite any other additional elements and for the same reasons as above with regard to integration into practical application and whether additional elements amount to significantly more, claim 5 also fails both Step 2A prong 2, thus the claim is directed to the judicial exception as it has not been integrated into practical application, and fails Step 2B as not amounting to significantly more Therefore, Claim 5 does not recite patent eligible subject matter under 35 U.S.C. § 101.
With regards to claim 6 (and similar for claims 13 and 19), it recites “wherein the progress metric comprises a progress of a task executing on the device.” as drafted, the claim is mere instructions to apply an exception (See MPEP 2106.05(f) and/or an Insignificant Extra-Solution Activity (See MPEP 2106.05(g)). Moreover, claim 6 does not recite any other additional elements and for the same reasons as above with regard to integration into practical application and whether additional elements amount to significantly more, claim 6 also fails both Step 2A prong 2, thus the claim is directed to the judicial exception as it has not been integrated into practical application, and fails Step 2B as not amounting to significantly more Therefore, Claim 6 does not recite patent eligible subject matter under 35 U.S.C. § 101.
With regards to claim 7 (and similar for claims 14 and 20), it recites “wherein the predicting comprises computing a machine learning algorithm based on a historical process data.” as drafted, the claim is considered an Insignificant Extra-Solution Activity (See MPEP 2106.05(g) – mere data gathering). Moreover, claim 7 does not recite any other additional elements and for the same reasons as above with regard to integration into practical application and whether additional elements amount to significantly more, claim 7 also fails both Step 2A prong 2, thus the claim is directed to the judicial exception as it has not been integrated into practical application, and fails Step 2B as not amounting to significantly more Therefore, Claim 7 does not recite patent eligible subject matter under 35 U.S.C. § 101.
Therefore, Claims 1-20 do not recite patent eligible subject matter under 35 U.S.C. § 101.
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.
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.
Claims 1, 7-8, 14-15 and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Wu et al. (US Pub. No. 2020/0264863 – hereinafter Wu) in view of Baral et al. (US Pub. No. 2023/0205509 – hereinafter Baral).
With respect to claim 1, Wu teaches a computer-implemented method comprising: detecting, by a Process Monitor of a system, a hot upgrade from a first version to a second version (See abstract, figures 2-11 and paragraph [0010], “A hot update method, an operating system, a terminal device, and a storage medium are provided according to embodiments. The method includes: receiving startup information of a system process sent by a hot update agent thread; checking a hot patch corresponding to the system process, in response to the startup information; and sending a patch processing request to the hot update agent thread, so as to request the hot update agent thread to invoke a patch repairing framework in response to the patch processing request. The embodiments can implement hot update of the framework and protect the security of the entire Framework layer and the APP layer.”). Wu is silent to disclose, however in an analogous art, Baral teaches: responsive to the detecting the hot upgrade, predicting by a Process Analyzer a predicted process instance (See paragraphs [0043]-[0075] and figure 3, historical information (i.e., current process instance) and prediction model (i.e., predicted process instance) formulating a deployment plan and/or targets. Furthermore, see figures 4, 6-8, 11 and 13 (and related text)). generating by the Process Analyzer an upgrade workflow based on a current process instance, a progress metric of the current process instance and the predicted process instance (See paragraphs [0043]-[0075] and figure 3, historical information (i.e., current process instance) and prediction model (i.e., predicted process instance) formulating a deployment plan. Furthermore, see figures 4, 6-8, 11 and 13 (and related text)) and deploying by a Device Upgrade Manager the hot upgrade to the second version on a device of the system based on the upgrade workflow (See at least figures 3-4 (and related text) and paragraphs [0077]-[0080], “In decision box 404, a decision by a deployment administrator on whether to use a smart deployment system, consistent with the present concepts, may be received by the deployment platform. If the administrator opts not to use a smart deployment system, then in box 406, the payload may be deployed to the target clusters using default orchestration rather than the smart deployment system.”). Therefore, it would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to modify Wu’s teaching, which manage hot updates, by combining Baral’s teaching, as Baral would allow smart orchestration of deployments in cloud computing services. Using artificial intelligence, faster and safer deployments may be achieved automatically and efficiently (See paragraph [0002]). With respect to claim 7, Wu is silent to disclose, however in an analogous art, Baral teaches wherein the predicting comprises computing a machine learning algorithm based on a historical process data (See figure 3, abstract and paragraphs [0039], [0044], [0071], [0075], [0078], “the prediction models may be rule-based models and/or machine-learning models. For example, a time prediction model (also called a speed prediction model) may be trained to predict a deployment time (i.e., speed) associated with a payload and a cluster, and a risk prediction model may be trained to predict deployment risk associated with a payload and a cluster. These and additional prediction models may predict speed, risk, and additional objectives or factors that may be considered when planning deployment.”). Therefore, it would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to modify Wu’s teaching, which manage hot updates, by combining Baral’s teaching, as Baral would allow smart orchestration of deployments in cloud computing services. Using artificial intelligence, faster and safer deployments may be achieved automatically and efficiently (See paragraph [0002]). With respect to claims 8 and 14, the claims are directed to a computer program product that corresponds to the method recited in claims 1 and 7, respectively (see the rejection of claims 1 and 7 above; wherein Wu also teaches such computer program in figure 13 and paragraph [0167]). With respect to claims 15 and 20, the claims are directed to a computer system that corresponds to the method recited in claims 1 and 7, respectively (see the rejection of claims 1 and 7 above; wherein Wu also teaches such computer system in figure 13 having processor 1302 and memory 1301).
Claims 2, 9 and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Wu et al. (US Pub. No. 2020/0264863 – hereinafter Wu) in view of Baral et al. (US Pub. No. 2023/0205509 – hereinafter Baral) and further in view of Forrest et al. (US Pub. No. 2023/0030546 – hereinafter Forrest). With respect to claim 2, Wu in view of Baral is silent to disclose, however in an analogous art, Forrest teaches further comprising a Process Controller wherein the Process Controller holds a task until the deploying by the Device Upgrade Manager the hot upgrade to the second version on a device of the system is complete (See paragraphs [0007], [0010], [0012], [0023], [0031], “Implementations of the disclosed subject matter may provide systems and methods of deploying application updates in a graceful manner such that backend jobs may be allowed to run through to completion or be paused prior to rolling out the deployment. This may allow deployments of the patch release to be during any time of day. Such deployments may be within a maintenance window, or may be outside of the maintenance window. To determine how to orchestrate deployment of the application update, a precheck may be performed which compares a target version with the current version to determine a type of upgrade to do. The precheck may determine an update mode an and update type from the application, which may be used to determine how the update to the application is to be deployed.”). Therefore, it would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to modify the combination of Wu and Baral, by combining Forrest’s teaching, as Forrest would reduce the overall impact of deployment of updates to the application by deploying application updates in a graceful manner such that backend jobs may be allowed to run through to completion or be paused prior to rolling out the deployment (see paragraph [0007]). With respect to claim 9, the claim is directed to a computer program product that corresponds to the method recited in claim 2, respectively (see the rejection of claim 2 above).
With respect to claim 16, the claim is directed to a computer system that corresponds to the method recited in claim 2, respectively (see the rejection of claim 2 above).
Claims 6, 13 and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Wu et al. (US Pub. No. 2020/0264863 – hereinafter Wu) in view of Baral et al. (US Pub. No. 2023/0205509 – hereinafter Baral) and further in view of Song et al. (US Pub. No. 2024/0070104 – hereinafter Song). With respect to claim 6, Wu in view of Baral is silent to disclose, however in an analogous art, Song teaches wherein the progress metric comprises a progress of a task executing on the device (See paragraphs [0060]-[0062], “3) For a task (i.e., a new task), if the hot-plugging computing module assigned to it is executing another task (i.e., a current task), when the data processing unit determines that the following two conditions are satisfied at this time, the data processing unit instructs the hot-plugging computing module to suspend the current task and execute the new task: Condition 1: The priority of the new task is at least 3 levels higher than that of the current task. Condition 2: The execution progress of the current task is less than 90% complete.”). Therefore, it would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to modify the combination of Wu and Baral, by combining Song’s teaching, as Song would allow system prediction and resource operation prediction, control coordination, and transaction strategy optimization under a distributed multi-energy coupling control system, all of which demands computational power (see paragraph [0004]). With respect to claim 13, the claim is directed to a computer program product that corresponds to the method recited in claim 6, respectively (see the rejection of claim 6 above).
With respect to claim 19, the claim is directed to a computer system that corresponds to the method recited in claim 6, respectively (see the rejection of claim 6 above).
Allowable Subject Matter
Claims 3-5, 10-12 and 17-18 are 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, including also the correctness of these claims under 35 USC 101 as indicated above.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Wang et al. (US Pub. No. 2026/0044336) discloses a gateway and a gateway hot upgrade method and system, related to the field of cloud computing. The method includes that: a connection between a parent process before a hot upgrade of a service request and a child process after the hot upgrade of the service request is cut off in response to receiving an exit signal, where the service request is used for establishing the connection between the child process after the hot upgrade and the parent process before the hot upgrade, and the child process is used for receiving port information and file descriptor information transferred by the parent process after the connection is established; and the parent process is exited, and the service request is processed based on the port information and the file descriptor information through the child process. (see abstract).
Guo et al. (US Pub. No. 2022/0206782) enables hot upgrading a microservices sequence in a cloud computing environment. More specifically, a next microservice of microservice subsequence in a running sequence is obtained, in response to a message to invoke the microservice or subsequence. The running microservice sequence includes at least one unexecuted microservice or subsequence that is to be hot upgraded. The running microservice sequence is generated based on a sequence that is to be hot upgraded which comprises an ordered list of microservices and/or subsequences. The approach may include determining the status of a next microservice or subsequence. The approach may further include invoking the next microservice or subsequence in the running sequence, in response to the status of the next microservice or subsequence being upgrade-complete. (see abstract).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANIBAL RIVERACRUZ whose telephone number is (571)270-1200. The examiner can normally be reached Monday-Friday 9:30 AM-6:00 PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Hyung S Sough can be reached at 5712726799. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ANIBAL RIVERACRUZ/Primary Examiner, Art Unit 2192
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