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 Remarks
This communication is considered fully responsive to the Amendment filed on 1/14/26.
101 rejection of claims 10-17 are withdrawn since amended to overcome 101 rejection; however, since applicant did not amend as suggested by examiner, see new claim interpretation (112f) and related 112 rejections below.
Response to Arguments
Applicant’s 1/14/26 arguments with respect to claims have been considered but are moot in view of new ground(s) of rejection.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are: ‘... the processing system to at least ... identify ... query ... determine ... check ... provide ... direct ... determine ... determine ...’ in claims 10-14.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. SEE ALSO MPEP 2181: Therefore, the broadest reasonable interpretation of a claim limitation that invokes 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is the structure, material or act described in the specification as performing the entire claimed function and equivalents to the disclosed structure, material or act. As a result, section 112(f) or pre-AIA section 112, sixth paragraph, limitations will, in some cases, be afforded a more narrow interpretation than a limitation that is not crafted in "means plus function" format. See related 112a and 112b rejections below for details of written description analyses.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 10-17 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Specifically, claim limitation(s) ‘... the processing system to at least ... identify ... query ... determine ... check ... provide ... direct ... determine ... determine ...’ in claims 10-14 invokes 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. However, the written description fails to disclose the corresponding structure, material, or acts for performing the entire claimed function and to clearly link the structure, material, or acts to the function. Specifically, required structure to properly invoke 1112 is disclosed as processors and memories IFW [0058-69]), however, there are no algorithm(s) (at least two steps) for example for claim 18 limitation(s) “identify a metric associated with the server to collect ..” disclosure merely discloses same claimed details about checking/reading a configuration file to identify the metric (claim 19) – and checking/reading a configuration file to identify the metric is not an algorithm (at least 2 steps) and disclosure merely reiterates claim language (see IFW fig 3-4, [0040;48]). Claims 15-17 are rejected due to dependency and due to not resolving above issues. Therefore, the written description is deficient.
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.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Per Federal Register [Vol. 76, No 27, Weds. Feb 9, 2011] guidance, pg. 7167:
The following is a list of non-structural terms that may invoke § 112, ¶6: "mechanism
for," "module for," "device for," "unit for," "component for," "element for," "member
for," "apparatus for," "machine for," or "system for." This list is not exhaustive and other
non-structural terms may invoke § 112, ¶6
Claims 10-17 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claims 10-17 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for pre-AIA the inventor(s), at the time the application was filed, had possession of the claimed invention. Claim limitation(s) ‘... the processing system to at least ... identify ... query ... determine ... check ... provide ... direct ... determine ... determine ...’ in claims 10-14 invokes 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. However, the written description fails to disclose the corresponding structure, material, or acts for performing the entire claimed function and to clearly link the structure, material, or acts to the function. Specifically, required structure to properly invoke 1112 is disclosed as processors and memories IFW [0058-69]), however, there are no algorithm(s) (at least two steps) for example for claim 18 limitation(s) “identify a metric associated with the server to collect ..” disclosure merely discloses same claimed details about checking/reading a configuration file to identify the metric (claim 19) – and checking/reading a configuration file to identify the metric is not an algorithm (at least 2 steps) and disclosure merely reiterates claim language (see IFW fig 3-4, [0040;48]). Claims 15-17 are rejected due to dependency and due to not resolving above issues. Therefore, the claim(s) is/are indefinite and is rejected under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. SEE ALSO MPEP 2181: Therefore, the broadest reasonable interpretation of a claim limitation that invokes 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is the structure, material or act described in the specification as performing the entire claimed function and equivalents to the disclosed structure, material or act. As a result, section 112(f) or pre-AIA section 112, sixth paragraph, limitations will, in some cases, be afforded a more narrow interpretation than a limitation that is not crafted in "means plus function" format.
To overcome this rejection, applicant is encouraged to amend claim 10 with substance equivalent to “One or more non-transitory computer-readable storage media having program instructions stored thereon for collecting metrics on a server, wherein the program instructions, when read and executed by one or more processors of a processing system, direct the one or more processors of the processing system to at least: ....”
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.
Claims 1-7, 10-16 and 18-20 are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent Publication No. 2016/0080226 to Poola et al. (“Poola”) in view of U.S. Patent Publication No. 2023/0367665 to Capano et al. (“Capano”), U.S. Patent Publication No. 2022/0342790 to Bachorik et al. (“Bachorik”) and further in view of U.S. Patent No. 11693857 to Jindal et al. (“Jindal”).
As to claim 1, Poola discloses a method of operating a server (Poola: fig 1-7 [0003-55]: see fig 3 target type: HTTP server and Server C Target type: server to host database ... user specifies a threshold for a source metric and the enterprise agent on the target generates an event when the source metric exceeds or falls below the threshold [0012]), the method comprising:
identifying a metric associated with the server to collect (Poola: fig 1-7 [0003-55]: ... automatically recommend which metrics should be collected for a given source metric and a given enterprise deployment (see with fig 3 & [0012] - identifying a metric associated with the server to collect) ... an appropriate collection frequency for the recommended metrics is also determined [0013]).
Poola did not explicitly disclose querying an operating system of the server for a processing load.
Capano discloses querying an operating system of the server for a processing load (Capano: fig 1-5, [0003-95]: ... the most common way of performing monitoring is to collect (querying) periodically metrics of interest, such as e.g., CPU total consumption, memory utilization, or filesystem usage on servers (querying an operating system of the server for a processing load) Virtual Machine (VM) instances or other hardware, and to apply threshold values to the collected metrics to make decisions [0003] ... fig 1 ... computing device 20 may be a computer or a server or a cluster of computers and/or servers [0074] ... computing device 20 is characterized by one or more metric data to be monitored, and for example, in at least one embodiment, such metric data may be the total CPU consumption of the computing device 20 (querying an operating system of the server for a processing load), the memory usage of the computing device 20 or the number of applications running the computing device 20 [0075] ... metric data may be generated by an agent installed on the computing device 20 (querying an operating system of the server for a processing load), such as e.g., a Virtual Machine (VM) or similar, which collects values from variables of interest to analyze at regular or irregular time intervals and the agent may generate data that are or are not time equispaced with successive values (querying an operating system of the server for a processing load) [0076]).
Poola and Capano are analogous art because they are from the same field of endeavor with respect to monitoring.
Before the effective filing date, for AIA , it would have been obvious to a person of ordinary skill in the art to incorporate the strategies by Capano into the method by Poola. The suggestion/motivation would have been to provide a common way of performing monitoring is to collect (querying) periodically metrics of interest and to apply threshold values to the collected metrics to make decisions (Capano: [0003]).
Poola and Capano further disclose determining if the processing load on the server is above a threshold associated with the metric (Poola: fig 1-7 [0003-55]: ... an event is raised when the event’s source metric goes above or falls below a threshold value [0032]).
Poola did not explicitly disclose if the processing load is above the threshold: not collecting the server metric.
Bachorik discloses if the processing load is above the threshold: not collecting the server metric (Bachorik: fig 1-9, [0038-88]: ... sampling window module 110 of monitoring system 102 adjusts a sampling frequency as application instances 104a-n execute on client devices 112a-n (see with [0066] – client devices 112a-n may be server systems etc) ... monitoring system 102 re-computes a sampling rate associated with the next sampling window ... sampling rate can be adjusted to maintain a sampling overhead bandwidth under a limit for an overall length of time ... if the number of exceptions received is increased, the monitoring system decreases a rate of sampling for the next sampling window (if the processing load is above the threshold, reduce collecting the server metric) [0053] ...if sampling rate is too high such that the overhead bandwidth increases near to the threshold or over the threshold limit, the sampling window module 110 changes the sample interval for subsequent windows to reduce bandwidth usage to satisfy the threshold ... the threshold can be a hard limit such that samples (sampling is) dropped (not collecting) when the threshold bandwidth is reached (see with [0053] - if the processing load is above the threshold, not collecting the server metric) [0059]).
Poola, Capano and Bachorik are analogous art because they are from the same field of endeavor with respect to metric sampling rates.
Before the effective filing date, for AIA , it would have been obvious to a person of ordinary skill in the art to incorporate the strategies by Bachorik into the method by Poola and Capano. The suggestion/motivation would have been to provide a threshold that can be a hard limit to drop/ reduce sampling rate of metric collection (Bachorik: [0059]).
Poola did not explicitly disclose if the processing load is above the threshold: not collecting the server metric; and initiating a backoff loop routine that periodically checks the processing load against the threshold to determine when to resume collecting the metric.
Jindal discloses if the processing load is above the threshold: not collecting the server metric; and initiating a backoff loop routine that periodically checks the processing load against the threshold to determine when to resume collecting the metric (Jindal: fig 1-13, col 5 ll 10-65 through col 31 ll 1-20: fig 5-7 do performance metrics meet threshold performance specifications? <no> 550 650 (if the processing load is above the threshold: ) ... backoff from applied configuration settings 560 ... transmit backoff configuration setting to data warehouse system 660 (not collecting the server metric; and initiating a backoff loop routine ...) ... for example, if the first configuration setting is associated with an auto-suspend interval as the configuration parameter, the first configuration setting may be set to a different level, e.g., smaller auto-suspend interval or a larger auto-suspend interval than a previous configuration setting, thereby enabling a data warehouse or data warehouse cluster being configured to be suspended after a shorter time or larger time has elapsed after its last access/use (see with fig 5-7 above - not collecting the server metric; and initiating a backoff loop routine that periodically checks the processing load against the threshold to determine when to resume collecting the metric) (col 20 ll 56-67 & col 21 ll 1-6))
Poola, Capano, Bachorik and Jindal are analogous art because they are from the same field of endeavor with respect to configuration management.
Before the effective filing date, for AIA , it would have been obvious to a person of ordinary skill in the art to incorporate the strategies by Jindal into the method by Poola, Capano and Bachorik. The suggestion/motivation would have been to provide dynamic tuning of configuration parameters (Jindal: col 1 ll 5-8).
Poola, Capano, Bachorik and Jindal further disclose if the processing load is below the threshold, collecting the server metric (Bachorik: fig 1-9, [0038-88]: ... sampling window module 110 of monitoring system 102 adjusts a sampling frequency as application instances 104a-n execute on client devices 112a-n (see with [0066] – client devices 112a-n may be server systems etc) ... monitoring system 102 re-computes a sampling rate associated with the next sampling window ... sampling rate can be adjusted to maintain a sampling overhead bandwidth under a limit for an overall length of time ... if the number of exceptions is decreased relative to an earlier sampling window, the monitoring system can increase the sampling rate (if the processing load is below the threshold, collecting the server metric) [0053]).
Same motivation applies as mentioned above to make the proposed modification.
As to claim 2, Poola, Capano, Bachorik and Jindal disclose wherein determining if the processing load is above the threshold comprises checking a configuration file comprising thresholds associated with a plurality of server metrics (Poola: fig 1-7 [0003-55]: ... the event life is defined as the time between i) the time when the source metric first exceeds the threshold (TL_1) ... the time when the source metric dropped below the threshold value (TL_2) (see with fig 3 & [0027;32, 12] - determining if the processing load is above the threshold comprises checking a configuration file comprising thresholds associated with a plurality of server metrics) [0035].. recommendation logic 110 configured to receive configuration (configuration file) of an event and to select metrics for monitoring by accessing the domain knowledge catalog 120 (configuration file) and selecting metrics related to target type relationships in deployment topology 130 [0027] ... frequency logic 420 periodically re-determines collection frequencies for events configured for an enterprise system and this automatic, periodic update approach allows frequency logic 420 to adapt collection frequencies (comprises checking a configuration file comprising ... associated with a plurality of server metrics) ... frequency logic 420 inputs historical event data taken during analysis period for an event and adjusts ... an event is raised when the event’s source metric value goes above or falls below a threshold value (determining if the processing load is above the threshold comprises checking a configuration file comprising thresholds associated with a plurality of server metrics) [0032] ... user specifies (comprises checking a configuration file comprising ...) a threshold for a source metric and the enterprise management agent on the target generates an event when the source metric exceeds or falls below a threshold deployed ... a drop in requests measured as a metric being shipped ... or other Weblogic server’s general health indicators, all of which are collected as metrics on the Weblogic server target (see with fig 3 & [0027;32;35] - determining if the processing load is above the threshold comprises checking a configuration file comprising thresholds associated with a plurality of server metrics) [0012]).
For motivation, see rejection of claim 1.
As to claim 3, Poola, Capano, Bachorik and Jindal disclose further comprising providing the server metric to a monitoring service external to the server (Poola: fig 1-7 [0003-55]: ... an element shown as internal component of another element may be implemented as an external component and vice versa [0002]).
For motivation, see rejection of claim 1.
As to claim 4, Poola, Capano, Bachorik and Jindal disclose wherein collecting the server metric comprises querying a collection agent on the server to collect the metric (Poola: fig 1-7 [0003-55]: ... a managed target is a target or entity on which a management agent has been deployed (see with fig 3 & [0012] - wherein collecting the server metric comprises querying a collection agent on the server ...) [0001] ... user specifies a threshold for a source metric and the enterprise management agent on the target generates an event when the source metric exceeds or falls below a threshold deployed ... a drop in requests measured as a metric being shipped ... or other Weblogic server’s general health indicators, all of which are collected as metrics on the Weblogic server target (see with fig 3 & [0012] - wherein collecting the server metric comprises querying a collection agent on the server to collect the metric) [0012]).
For motivation, see rejection of claim 1.
As to claim 5, Poola, Capano, Bachorik and Jindal disclose comprising, if the processing load is below the threshold (Bachorik: fig 1-9, [0038-88]: ... sampling window module 110 of monitoring system 102 adjusts a sampling frequency as application instances 104a-n execute on client devices 112a-n (see with [0066] – client devices 112a-n may be server systems etc) ... monitoring system 102 re-computes a sampling rate associated with the next sampling window ... sampling rate can be adjusted to maintain a sampling overhead bandwidth under a limit for an overall length of time ... if the number of exceptions is decreased relative to an earlier sampling window, the monitoring system can increase the sampling rate (if the processing load is below the threshold ...) [0053]):
determining that at least one metric collection process is already running (Bachorik: fig 1-9, [0038-88]: ... the monitoring system 102 determines whether a particular exception is to be sampled at the instant that the exception is generated and this is because of requirements for monitoring execution of the application imposed by monitoring programs such as JAVA FLIGHT RECORDER and, in this example, the sampling decision is made when the exception occurs during runtime and the decision cannot be postponed to a later time ... (determining that at least one metric collection process is already running ...) [0054]); and
determining that the at least one metric collection process must complete before collecting the metric (Bachorik: fig 1-9, [0038-88]: ... this monitoring system 102 overcomes this restriction using adjustable sampling rates for each of sampling windows ... sampling rate is recomputed for a subsequent sampling window as the previous sampling window ends (... determining that the at least one metric collection process must complete...) and the subsequent sampling window commences (... before collecting the metric) [0054]).
For motivation, see rejection of claim 1.
As to claim 6, Poola, Capano, Bachorik and Jindal disclose wherein the server is an application server (Poola: fig 1-7 [0003-55]: see fig 3 target type: HTTP server and Server C Target type: server to host database ... user specifies a threshold for a source metric and the enterprise agent on the target generates an event when the source metric exceeds or falls below the threshold [0012]).
For motivation, see rejection of claim 1.
As to claim 7, Poola, Capano, Bachorik and Jindal disclose wherein the server is a database server (Poola: fig 1-7 [0003-55]: see fig 3 target type: database and Server C Target type: server to host database ... user specifies a threshold for a source metric and the enterprise agent on the target generates an event when the source metric exceeds or falls below the threshold [0012]).
For motivation, see rejection of claim 1.
As to claims 10-16, see similar rejection to claims 1-7, respectively, where the medium is taught by the method.
As to claims 18-20, see similar rejection to claims 1-3, respectively, where the system is taught by the method.
Claims 8-9 and 17 are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent Publication No. 2016/0080226 to Poola et al. (“Poola”) in view of U.S. Patent Publication No. 2023/0367665 to Capano et al. (“Capano”), U.S. Patent Publication No. 2022/0342790 to Bachorik et al. (“Bachorik”), U.S. Patent No. 11693857 to Jindal et al. (“Jindal”).and further in view of U.S. Patent Publication No. 2021/0081818 to Fahmy et al. (“Fahmy”).
As to claim 8, Poola, Capano, Bachorik and Jindal disclose the method of claim 1 (Bachorik: fig 1-9, [0038-88]: ... a sampling interval for a given window may be computed based on an exponential moving average of incoming data rate over the last N windows (such as an average load on a central processing unit on the server over a period of time) [0007;9]).
For motivation, see rejection of claim 1.
Poola did not explicitly disclose wherein the processing load comprises an average load on a central processing unit on the server over a period of time.
Fahmy discloses wherein the processing load comprises an average load on a central processing unit on the server over a period of time (Fahmy: fig 1-6, [0008-57]: ... multiple time series may be generated for a single entity to track different metrics (wherein the processing load comprises a load ... on the server over a period of time) ... for a given database server, one time series may track the number of active database sessions, a second may track the average query response times and a third may track an average sequential data read times (wherein the processing load comprises an average load on ... the server over a period of time) ... for a given host (server), a first time series may track CPU utilization rate (wherein the processing load comprises an average load on a central processing unit on the server over a period of time) and a second tracks memory utilization rate... the number and type of metrics that are collected may vary from implementation to implementation [0038]).
Poola, Capano, Bachorik, Jindal and Fahmy are analogous art because they are from the same field of endeavor with respect to metrics.
Before the effective filing date, for AIA , it would have been obvious to a person of ordinary skill in the art to incorporate the strategies by Fahmy into the method by Poola, Capano, Bachorik and Jindal. The suggestion/motivation would have been to provide multiple time series generated to track different metrics (Fahmy: [0038]).
As to claim 9, Poola, Capano, Bachorik, Jindal and Fahmy disclose wherein the server is a virtual machine (Fahmy: fig 1-6, [0008-57]: components of system 100 may be implemented on one or more digital devices ... refer to a physical device or a virtual machine [... examples of digital devices include ... server, web server, network policy server, proxy server ... [0049]).
For motivation, see rejection of claim 8.
As to claim 17, see similar rejection to claim 8, where the medium is taught by the method.
Conclusion
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).
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 JUNE SISON whose telephone number is (571)270-5693. The examiner can normally be reached 9:00 am - 5:00 pm.
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/JUNE SISON/Primary Examiner, Art Unit 2455