Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
DETAILED ACTION
Claims 1-20 are pending. Claims 1-20 are rejected.
Amendments to the claims have been recorded.
Response to Arguments
Applicant’s arguments have been fully considered but they are not persuasive.
Applicant’s Arguments
Applicant’s has states that the Double Patenting rejection is moot based on the amendments and “Applicant reserves the right to address this rejection further, including by filing a terminal disclaimer…” Examiner strongly disagrees, the claim amendments that have been made are found in the claims of the patents used in the rejections.
Applicant argues that the amendments made overcome the 101 rejections. Examiner strongly disagrees. The amendments made are:
For claim 1.
“by a first computing device” which are Apply it level i.e. linking an abstract idea to a technology.
“on a network” also Apply it level i.e. linking an abstract idea to a technology.
“second computing device” also Apply it level i.e. linking an abstract idea to a technology.
“via the first portion”; this is a signal that is portioned out on an bandwidth that is being sent or “sending, via the first portion, a first part…”, sending a even on a portion of a bandwidth is still transmitting and receiving a signal; step 2A prong 2.
“an amount of allocated bandwidth” is still allocation of a signal; i.e. transmitting and receiving signals.
“traffic group different than” i.e. different signal transition and reception.
For claim 5.
“third computing device”; Apply it level, linking to a technology.
“the second request”, sending and receiving signals.
For claim 7.
“third computing device”; Apply it level, lining to a technology.
Claim 10.
“less than a threshold proportion of” Abstract idea, mental process of ranking.
Claim 11. Is rejected with the same rejections as made to claim 1.
Claim 15. “at least part of the content” sending and receiving, also mental proses of which part to send.
Claim 17. Is rejected using the same rejections as made to claim 1.
Applicant further argues “improvement over prior art”. Examiner strongly disagrees. Sending data in parallel always checks network capacity is a shared resource to prevent bottlenecking allowing higher priority data to clear first. This process has been dated back to the 1950s in the CDC 6600 and standardized with IBN in 1981 with Standard parallel port (SPP). Packet assignments based on bandwidth and timing was also developed in the 1960s in “distributed adaptive massage block switching”
Applicant further argues “video data” as improvements; video data is simply signal data. Regardless, video data was known before applicants filing date.
Applicant’s arguments related to the “Specifications”, The office notes that the claims are read in light of the specifications, however the specifications are not read into the claim.
Nonstatutory 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 obviousness-type 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); and 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 a nonstatutory double patenting ground provided the conflicting application or patent either is shown to be commonly owned with this application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement.
Effective January 1, 1994, a registered attorney or agent of record may sign a terminal disclaimer. A terminal disclaimer signed by the assignee must fully comply with 37 CFR 3.73(b).
The claim of this instant application are rejected on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claim of co-pending Application. Although the conflicting claims are not identical, they are not patentably distinct from each other.
Double Patenting Rejections will not be revisited and be held in abeyance until allowable subject matter is to be found.
Instant Application
Patent
Claims:
1-20
US 11,700,211
1-18
1-20
US 12,120,041
1-20
A patentee or applicant may disclaim or dedicated to the public the entire term, or any terminal part of the term of a patent. 35 U.S.C. 253. The statue does not provide for a terminal disclaimer of only a specified claim or claims. The terminal disclaimer must operate with respect to all claims in the patent. MPEP 804.02.
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 is directed to an abstract idea without significantly more.
On January 7, 2019, the USPTO released new examination guidelines setting forth a two-step inquiry for determining whether a claim is directed to non-statutory subject matter. According to the guidelines, a claim is directed to non-statutory subject matter if:
STEP 1: the claim does not fall within one of the four statutory categories of invention (process, machine, manufacture or composition of matter), or
STEP 2: the claim recites a judicial exception, e.g. an abstract idea, without reciting additional elements that amount to significantly more than the judicial exception, as determined using the following analysis:
STEP 2A (PRONG 1): Does the claim recite an abstract idea, law of nature, or natural phenomenon?
STEP 2A (PRONG 2): Does the claim recite additional elements that integrate the judicial exception into a practical application?
STEP 2B: Does the claim recite additional elements that amount to significantly more than the judicial exception?
Claim 1 reads:
A method comprising:
allocating, to a first traffic group, a first portion of an available amount of a total bandwidth;
allocating, to a second traffic group, a second portion of the available amount of the total bandwidth;
receiving, from a device, a request to deliver content of the second traffic group; and
sending, via the first portion, a first part of the content of the second traffic group, wherein the sending is based on:
available bandwidth of the second portion; and
actual usage of the first portion
Using the two-step inquiry, it is clear that claim 1 is directed toward non-statutory subject matter, as shown below:
STEP 2A (PRONG 1): Is the claim directed to a law of nature, a natural phenomenon or an abstract idea? Yes, the claims 1-20 are directed to an abstract idea.
With regard to STEP 2A (PRONG 1), the guidelines provide three groupings of subject matter that are considered abstract ideas:
Mathematical concepts – mathematical relationships, mathematical formulas or equations, mathematical calculations;
Certain methods of organizing human activity – fundamental economic principles or practices (including hedging, insurance, mitigating risk); commercial or legal interactions (including agreements in the form of contracts; legal obligations; advertising, marketing or sales activities or behaviors; business relations); managing personal behavior or relationships or interactions between people (including social activities, teaching, and following rules or instructions); and
Mental processes – concepts that are practicably performed in the human mind (including an observation, evaluation, judgment, opinion, calculating, determining).
The method in claim 1 is a mental process that can be practicably performed in the human mind and, therefore, an abstract idea. The abstract ideas are:
allocating, to a first traffic group, a first portion of an available amount of a total bandwidth;
allocating, to a second traffic group, a second portion of the available amount of the total bandwidth;
The abstract idea can be explained by imagining a folder or space as a total bandwidth and portioning the folder based on size of file.
allocating, to a first traffic group, a first portion of an available amount of a total bandwidth; Imagining a folder or space as a total bandwidth and portioning the folder or space for a first traffic group i.e. size of folder space needed.
allocating, to a second traffic group, a second portion of the available amount of the total bandwidth; Allocating a second remaining space form the folder or space.
STEP 2A (PRONG 2): Does the claim recite additional elements that integrate the judicial exception into a practical application? No, the claim does not recite additional elements that integrate the judicial exception into a practical application.
With regard to STEP 2A (prong 2), whether the claim recites additional elements that integrate the judicial exception into a practical application, the guidelines provide the following exemplary considerations that are indicative that an additional element (or combination of elements) may have integrated 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.
While the guidelines further state that the exemplary considerations are not an exhaustive list and that there may be other examples of integrating the exception into a practical application, the guidelines also list examples in which a judicial exception has not been integrated into a practical application:
an additional element merely recites the words “apply it” (or an equivalent) with the judicial exception, or merely includes instructions to implement an abstract idea on a computer, or merely uses a computer as a tool to perform an abstract idea;
an additional element adds insignificant extra-solution activity to the judicial exception [receiving data, data gathering, data output] further addressed in WUEC; and
an additional element does no more than generally link the use of a judicial exception to a particular technological environment or field of use.
Claim 1 does not recite any of the exemplary considerations that are indicative of an abstract idea having been integrated into a practical application. While the claim does recite that the method is for:
receiving, from a device, a request to deliver content of the second traffic group; and [Data gathering, i.e. receiving]
sending, via the first portion, a first part of the content of the second traffic group, wherein the sending is based on: [Data gathering, i.e. sending data]
available bandwidth of the second portion; and [sending data] Also see (WURC)
actual usage of the first portion [sending data] Also see (WURC)
STEP 2B: Does the claim recite additional elements that amount to significantly more than the judicial exception? No, the claim does not recite additional elements that amount to significantly more than the judicial exception.
With regard to STEP 2B, whether the claims recite additional elements that provide significantly more than the recited judicial exception, the guidelines specify that the pre-guideline procedure is still in effect. Specifically, that examiners should continue to consider whether an additional element or combination of elements:
adds a specific limitation or combination of limitations that are not well-understood, routine, conventional activity in the field, which is indicative that an inventive concept may be present; or
simply appends well-understood, routine, conventional activities previously known to the industry, specified at a high level of generality, to the judicial exception, which is indicative that an inventive concept may not be present.
Claim 1 does not recite any specific limitation or combination of limitations that are not well-understood, routine, conventional (WURC) activity in the field.
Claim 1 further recites WURC extra steps of:
available bandwidth of the second portion; and [insignificant extra solution; Apply it level, linking to a technology area]
actual usage of the first portion [insignificant extra solution; Apply it level, linking to a technology area]
Analyzing the WURC steps of the abstract idea with the given examples.
we can understand that the abstract idea falls within the WURC Activity MPEP 2106.05(d)(1) Evaluation
improvement consideration WURC consideration MPEP.05(a);
mere instructions to apply an exception consideration MPEP 2106.05(f)
insignificant extra-solution activity consideration MPEP 2106.05(g)
Generic computer performing merely generic computer functions, data gathering, populating tables, sending and receiving data or performing functions ‘known’ in the art.
CONCLUSION
Thus, since claim 1 is: (a) directed toward an abstract idea, (b) does not recite additional elements that integrate the judicial exception into a practical application, and (c) does not recite additional elements that amount to significantly more than the judicial exception, it is clear that claim 1 is directed towards non-statutory subject matter.
Claims 11 and 17 are rejected using the same rejections as made to claim 1.
Claims all remaining claims are rejected as such:
2, 10 sending
3, 6, 8, 9, 12, 13, 14, 15, Apply it level, linking
4, 18, 19, 20. Apply it, linking, sending
5.Reciving, apply it, linking, sending
7. Receiving, apply it, linking
16. receive, send, apply it, linking
In practicing compact prosecution, the Specifications were reviewed for possible amendments to be proposed to the Applicant to overcome the 101 rejections. No possible amendments where readily found to overcome the 101 rejections.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SIHAR A KARWAN whose telephone number is (571)272-2747. The examiner can normally be reached on M-F 11am.-7pm..
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, Ramon Mercado can be reached on 571-270-5744. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see https://ppair-my.uspto.gov/pair/PrivatePair. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/SIHAR A KARWAN/Examiner, Art Unit 3664
Prosecution Insights