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 – Non-statutory
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 §§ 706.02(l)(1) - 706.02(l)(3) 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 USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/process/file/efs/guidance/eTD-info-I.jsp.
Claim(s) 27-34, 36, 41-44, 47-51, 53-60 is/are rejected on the ground of nonstatutory double patenting as being unpatentable over claim(s) 1-27 of Patent No. US12242334B2. Although the claims at issue are not identical, they are not patentably distinct from each other because the claim(s) 27, 41, 48 are similar to the combination of claim(s) 1, 10, 19, 26 of the US12242334B2. Therefore the patent claim and the application claim would have been obvious.
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.
Claim(s) 27-31, 41, 48, 51, 53-60 is/are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more. The claims fall within at least one of the four categories of patent eligible subject matter. However, the claimed invention is directed to performing steps that fall within the mental process groupings of abstract ideas because they cover concepts performed in the human mind. An analysis of the claims regarding subject matter eligibility follows:
Step1: Claim(s) 27-31, 41, 48, 51, 53-60 recite a method, a system, and a medium, therefore satisfying Step 1 of the analysis.
Step 2A, Prong 1: Claim(s) 27, 41, 48 recite generating a data model for the failover based on the process inventory; generating a workflow for the failover based on the data model; and assembling a plurality of virtual engineering activities to perform the failover for the application based on the workflow, which, under their broadest reasonable interpretation, covers performance of the limitations entirely in the human mind and/or with the aid of pen and paper. Specifically, the steps of generating, generating and assembling may be practically performed in the human mind using observation, evaluation, and judgement of the process inventory, the data model, and the workflow (MPEP 2106.04(a)(2), subsection Ill). For example, “generating” in the context of the claim(s) encompasses a user generating a data model in mind for the failover based on the process inventory, “generating” in the context of the claim(s) encompasses the user generating a workflow in mind for the failover based on the data model, and “assembling” in the context of the claim(s) encompasses the user assembling a plurality of virtual engineering activities in mind to perform the failover for the application based on the workflow.
Claim(s) 28-31, 51, 53-60 recite further limitations that fall under the judicial exception as recited in claim(s) 27, 41, 48. Each of the further limitations encompass performance of the steps within the human mind.
Step 2A, Prong 2: The additional elements recited in claim(s) 27, 41, 48, “a processor,” “a memory,” “a medium,” “obtaining a process inventory for a failover of an application from a first data center to a second data center;” and “generating a failover visualization based on the workflow, the failover visualization comprising a plurality of icons, wherein at least some of the plurality of icons represent some of the plurality of virtual engineering activities,” “displaying, by the processor, the failover visualization to a user by a user interface wherein each of the plurality of icons is configured to display information about a corresponding step of the failover” do not integrate the judicial exception into a practical application. These limitations are directed to implementing the abstract idea using generic computer components (MPEP 2106.05(f)) and recite mere data gathering and outputting recited at a high level of generality, and thus are insignificant extra-solution activity (MPEP 2106.05(g)).
Claim(s) 28-31, 51, 53-60 recite further details regarding validating the data model, and generating ordered operations. These claims contain no additional elements which would integrate the abstract idea into a practical application.
Accordingly, the additional elements do not integrate the abstract idea into a practical application because they do not impose any meaningful limits on practicing the identified abstract idea.
Step 2B: Claim(s) 27, 41, 48 do not include additional elements that are sufficient to amount to significantly more than the judicial exception. As discussed in Step 2A, Prong 2 above, the recitations of “a processor,” “a memory,” “a medium,” “obtaining a process inventory for a failover of an application from a first data center to a second data center;” and “generating a failover visualization based on the workflow, the failover visualization comprising a plurality of icons, wherein at least some of the plurality of icons represent some of the plurality of virtual engineering activities,” “displaying, by the processor, the failover visualization to a user by a user interface wherein each of the plurality of icons is configured to display information about a corresponding step of the failover” are recited at a high level of generality. These elements amount to receiving or transmitting data over a network, and thus are well-understood, routine, conventional activity (MPEP 2106.05(d), subsection II).
Regarding claim(s) 28-31, 51, 53-60, the additional elements are not sufficient to amount to significantly more than the judicial exception because they simply apply the exception using a generic computer.
Therefore, claim(s) 27-31, 41, 48, 51, 53-60 recite an abstract idea without significantly more, and are not patent eligible.
Response to Remarks
The amendments overcome the objections/rejections to the claim(s) under informalities, 102 and 103.
Applicant's Remarks have been fully considered but they are not persuasive.
Regarding the rejections under 101, the Remarks state, “A failover visualization is a concrete display object, recited as displayed to a user via a user interface, of a plurality of icons which present information about steps of the failover (see e.g., Figs. 11A and 11B) for the user for improved insight into and control over the failover… as the creation of the failover visualization is a concrete step for which displaying is an integral act which allows an improvement to the system by which failover automation is performed.” However, the examiner respectfully disagrees. Displaying is additional elements in Prong 2. Also, Intellectual Ventures v. Cap One Bank, found collecting, displaying and manipulating data, as well as, customizing information and presenting it to users based on particular characteristics are concepts of abstract idea.
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 KATHERINE LIN whose telephone number is (571)431-0706. The examiner can normally be reached Monday-Friday; 8 a.m. - 5 p.m. EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Bryce Bonzo can be reached at (571) 272-3655. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/KATHERINE LIN/Primary Examiner, Art Unit 2113
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