DETAILED ACTION
Status of Application
Claims 1-24 are pending in the present application.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 06/06/2025 is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
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 .
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
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Claims 1, 9, and 17 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 7, and 13, respectively, of U.S. Patent No. 12,086,656 B2, in view of Bhandari et al (hereinafter Bhandari), US 20190102212 A1.
Although the claims at issue are not identical, they are not patentably distinct from each other because every claim limitation in the application under examination is recited in the conflicting reference patent claims. The differences between the claims are highlighted below by italicizing all limitations that differ and bolding limitations that conflict.
Please note that in the interest of time, the examiner is selecting one of the independent claims from the instant and U.S. Patent for the table below.
Instant application
U.S. Patent No. 12,086,656 B2
Claim 1. A non-transitory computer readable medium having stored thereon a sequence of instructions which, when stored in memory and executed by a processor cause the processor to perform acts comprising:
executing, on a first node of a computing cluster, a first instance of a computing process that is configured to use a first graphics processing unit (GPU) in a first GPU configuration;
detecting a loss of functionality that affects the computing process; and
responsive to detecting the loss of functionality, automatically determining that a second instance of the computing process can execute on a second node by:
determining that the second instance of the computing process can execute using a second GPU in a second GPU configuration on the second node; and
configuring the second instance of the computing process to use the second GPU in the second GPU configuration on the second node,
wherein the second GPU configuration is different from the first GPU configuration; and
wherein the second GPU configuration is based on at least one known configuration state.
Claim 1. A non-transitory computer readable medium having stored thereon a sequence of instructions which, when stored in memory and executed by a processor cause the processor to perform acts comprising:
executing, on a first node of a computing platform, a first instance of a computing process that is configured to use a first graphics processing unit (GPU) in a first GPU configuration;
detecting a loss of functionality that affects the computing process; and
responsive to detecting the loss of functionality, automatically determining that a second instance of the computing process can execute on a second node by:
determining that the second instance of the computing process can execute using a second GPU in a second GPU configuration on the second node; and
configuring the second instance of the computing process to use the second GPU in the second GPU configuration on the second node,
wherein the second GPU configuration is different from the first GPU configuration; and
wherein an aggregate GPU demand level is assessed for a set of virtual machines or computing processes, and reconfiguring at least some of the set of virtual machines or computing processes to use the second GPU.
‘656 does not explicitly disclose wherein the second GPU configuration is based on at least one known configuration state.
However, Bhandari discloses wherein the second GPU configuration is based on at least one known configuration state [paragraphs 74, 22, GPU profile 134; “To this end, a platform independent GPU profile 134 can include a video memory requirement, a central processing unit (CPU) requirement, a random-access memory (RAM) requirement, a preferred graphics card, or other requirement for a virtual machine”].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to utilize the teachings of Bhandari in the non-transitory computer readable medium of ‘656, to implement wherein the second GPU configuration is based on at least one known configuration state, in order to provide for more efficient utilization of graphics processing unit (GPU) resources while lowering operational costs and requiring less effort for creating and maintaining virtual machines configured with vGPUs [Bhandari, paragraph 11].
Claims 7, 15, and 23 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 5, 11, and 17, respectively, of U.S. Patent No. 12,086,656 B2, in view of Bhandari.
Claims 8, 16, and 24 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 6, 12, and 18, respectively, of U.S. Patent No. 12,086,656 B2, in view of Bhandari.
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.
Claim(s) 1, 7-9, 15-17, and 23-24 is/are rejected under 35 U.S.C. 103 as being unpatentable over Krishnan et al (hereinafter Krishnan), US 20200042355 A1, in view of Bhandari et al (hereinafter Bhandari), US 20190102212 A1.
Referring to claims 1, 9, and 17, taking claim 1 as exemplary, Krishnan discloses a non-transitory computer readable medium having stored thereon a sequence of instructions which, when stored in memory and executed by a processor [paragraph 17, processors…the computer-readable storage medium of memory stores instructions for performing the methods and processes described herein] cause the processor to perform acts comprising:
executing, on a first node of a computing cluster [paragraph 5, “host device in a cluster of host devices”], a first instance of a computing process that is configured to use a first graphics processing unit (GPU) in a first GPU configuration [paragraphs 42, 43, “VMs that are running on the host device”; “a plurality of available resources at the first host device. The identified resources include physical computer resources and can include memory, storage media, processors, GPUs”];
detecting a loss of functionality that affects the computing process [paragraphs 41-42, “In some embodiments, an event to disable a first host device includes detecting a failure at the first host device. Examples of a failure at the first host device includes a loss of network connection, power failure, software bug, or anything that makes a host device (e.g., a disk, server, node computer, etc.) stop working”]; and
responsive to detecting the loss of functionality, automatically determining that a second instance of the computing process can execute on a second node [paragraph 42, “In some embodiments, an event to disable a first host device includes detecting an instruction to transition the first host device into a maintenance mode. VMs that are running on the host device entering maintenance mode need to be migrated to another host device (either manually or automatically)”] by:
determining that the second instance of the computing process can execute [paragraph 42, “In some embodiments, an event to disable a first host device includes detecting an instruction to transition the first host device into a maintenance mode. VMs that are running on the host device entering maintenance mode need to be migrated to another host device (either manually or automatically)”].
Krishnan does not explicitly disclose determining that the second instance of the computing process can execute using a second GPU in a second GPU configuration on the second node; and
configuring the second instance of the computing process to use the second GPU in the second GPU configuration on the second node,
wherein the second GPU configuration is different from the first GPU configuration; and
wherein the second GPU configuration is based on at least one known configuration state.
However, Bhandari discloses determining that the second instance of the computing process can execute using a second GPU in a second GPU configuration on the second node [paragraph 74, “Currently, a migration of virtual machines that utilize GPUs 121 or other graphics processing resources requires that two hosts be identical in terms of the graphic cards 412. For example, a virtual machine assigned to a host having an NVIDIA® M60 type of graphics cards 412 must be migrated to another host having an NVIDIA® M60type of graphics card 412. However, using a platform independent GPU profile 134, as described herein, the GVPM 140 can migrate a virtual machine from a host that has a first type of graphics card 412, such as the NVIDIA® M60, to a that has a second type of graphics card 412, such as the NVIDIA® K1 (or a graphics card 412 having a different make or model)”]; and
configuring the second instance of the computing process to use the second GPU in the second GPU configuration on the second node [paragraph 74],
wherein the second GPU configuration is different from the first GPU configuration [paragraph 74, “However, using a platform independent GPU profile 134, as described herein, the GVPM 140 can migrate a virtual machine from a host that has a first type of graphics card 412, such as the NVIDIA® M60, to a that has a second type of graphics card 412, such as the NVIDIA® K1 (or a graphics card 412 having a different make or model)”]; and
wherein the second GPU configuration is based on at least one known configuration state [paragraphs 74, 22, GPU profile 134; “To this end, a platform independent GPU profile 134 can include a video memory requirement, a central processing unit (CPU) requirement, a random-access memory (RAM) requirement, a preferred graphics card, or other requirement for a virtual machine”].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to utilize the teachings of Bhandari in the non-transitory computer readable medium of Krishnan, to implement determining that the second instance of the computing process can execute using a second GPU in a second GPU configuration on the second node; and configuring the second instance of the computing process to use the second GPU in the second GPU configuration on the second node, wherein the second GPU configuration is different from the first GPU configuration, and wherein the second GPU configuration is based on at least one known configuration state, in order to provide for more efficient utilization of graphics processing unit (GPU) resources while lowering operational costs and requiring less effort for creating and maintaining virtual machines configured with vGPUs [Bhandari, paragraph 11].
Referring to claims 7, 15, and 23, taking claim 7 as exemplary, the modified Krishnan discloses the non-transitory computer readable medium of claim 1, further comprising instructions which, when stored in memory and executed by the processor cause the processor to perform further acts of probing a cloud-based infrastructure for available GPU configurations [Bhandari, paragraphs 11, 54-57, identifying two hosts with GPU configurations].
Referring to claims 8, 16, and 24, taking claim 8 as exemplary the modified Krishnan discloses the non-transitory computer readable medium of claim 1, further comprising instructions which, when stored in memory and executed by the processor cause the processor to perform further acts of presenting, on a computer display screen, a graphical user interface (GUI) that depicts at least a portion of the second GPU configuration in the GUI [Bhandari, fig. 3]
Allowable Subject Matter
Claims 2-6, 10-14, and 18-20 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.
The following is a statement of reasons for the indication of allowable subject matter: The prior art of record taken alone or in combination fails to teach and/or fairly suggest which, when stored in memory and executed by the processor cause the processor to perform further acts of determining that the computing process can run using a second GPU configuration comprises retrieving a recommendation from a machine learned model, in combination with other recited limitations in claim 2.
Claims 3-4 are objected to by virtue of their dependency.
The prior art of record taken alone or in combination fails to teach and/or fairly suggest which, when stored in memory and executed by the processor cause the processor to perform further acts of determining that the computing process can run using a second GPU configuration comprises retrieving at least one prediction from a machine learned model, in combination with other recited limitations in claim 5.
Claim 6 is objected to by virtue of its dependency.
The prior art of record taken alone or in combination fails to teach and/or fairly suggest determining that the computing process can run using a second GPU configuration comprises retrieving a recommendation from a machine learned model, in combination with other recited limitations in claim 10.
Claims 11-12 are objected to by virtue of their dependency.
The prior art of record taken alone or in combination fails to teach and/or fairly suggest determining that the computing process can run using a second GPU configuration comprises retrieving at least one prediction from a machine learned model, in combination with other recited limitations in claim 13.
Claim 14 is objected to by virtue of its dependency.
The prior art of record taken alone or in combination fails to teach and/or fairly suggest when stored in memory and executed by the processor cause the processor to perform further acts of determining that the computing process can run using a second GPU configuration comprises retrieving a recommendation from a machine learned model, in combination with other recited limitations in claim 18.
Claims 19-20 are objected to by virtue of their dependency.
The prior art of record taken alone or in combination fails to teach and/or fairly suggest instructions which, when stored in memory and executed by the processor cause the processor to perform further acts of determining that the computing process can run using a second GPU configuration comprises retrieving at least one prediction from a machine learned model, in combination with other recited limitations in claim 21.
Claim 22 is objected to by virtue of its dependency.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to FARLEY J ABAD whose telephone number is (571)270-3425. The examiner can normally be reached Mon-Fri 8:30 AM - 7 PM.
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/Farley Abad/Primary Examiner, Art Unit 2181