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 .
Informalities
The Specification is objected to because of the following informalities:
In [0001], "February 21, 2022" should be "February 24, 2022."
In [0081], "media" should be "medium."
In [0117]-[0122], "medium" should be "media."
Appropriate correction is required.
Claim(s) 48-52 is/are objected to because of the following informalities:
“medium" should be “media.”
Appropriate correction is required.
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) 27-52 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, 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, 38-41, 46, 48, 51-52 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, 38-41, 46, 48, 51-52 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 set of one or more 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 set of one or more virtual engineering activities in mind to perform the failover for the application based on the workflow.
Claim(s) 28-31, 38-40, 46, 51-52 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, wherein the failover visualization is configured to be displayed to at least one user and wherein at least some icons of the failover visualization represent some of the set of one or more virtual engineering activities,” 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, 38-40, 46, 51-52 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, wherein the failover visualization is configured to be displayed to at least one user and wherein at least some icons of the failover visualization represent some of the set of one or more virtual engineering activities,” 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, 38-40, 46, 51-52, 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, 38-41, 46, 48, 51-52 recite an abstract idea without significantly more, and are not patent eligible.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 27-37, 39, 41-45, 48-51 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Madhu et al. (US20160048408A1).
Madhu discloses:
27. (New) A method for providing failover automation comprising:
obtaining, by a processor, a process inventory for a failover of an application from a first data center to a second data center; (par 6, 8, 47, 51, 71; fig 23)
generating, by the processor, a data model for the failover based on the process inventory; (par 71; fig 8-9)
generating, by the processor, a workflow for the failover based on the data model; (par 71, fig 8-9)
assembling, by the processor, a set of one or more virtual engineering activities to perform the failover for the application based on the workflow; and (par 73, 115: the virtual appliances may serve as a data mover,)
generating, by the processor, a failover visualization based on the workflow, wherein the failover visualization is configured to be displayed to at least one user and wherein at least some icons of the failover visualization represent some of the set of one or more virtual engineering activities. (par 47, 104: disaster recovery; fig 1, 11)
28. (New) The method of claim 27, wherein generating the data model further comprises validating the data model and wherein validating the data model comprises:
determining whether a workflow for the failover can be generated based on the data model; and
based on a determination that the workflow for the failover can be generated based on the data model, generating the workflow. (par 131)
29. (New) The method of claim 28, wherein validating the data model comprises: comparing steps of the data model to steps of the process inventory; determining whether the steps of the data model-correspond to one or more of the steps of the process inventory; and based on a determination that the steps of the data model correspond to one or more of the steps of the process inventory, generating the workflow. (par 131)
30. (New) The method of claim 27, wherein the process inventory comprises a set of sub processes, and wherein generating the data model comprises generating one or more entries in the data model for each sub process in the process inventory. (par 47; fig 23)
31. (New) The method of claim 27, wherein generating a workflow comprises generating a set of ordered operations, wherein the set of ordered operations comprise virtual engineering activities, and a set of metadata, wherein the set of metadata comprises parameters for the virtual engineering activities. (par 73, 115)
32. (New) The method of claim 27, further comprising: performing the failover for the application with the set of one or more virtual engineering activities based on the workflow. (par 73, 115)
33. (New) The method of claim 32, wherein performing the failover further comprises: monitoring at least one metric of the failover; and displaying, on the failover visualization, the at least one metric of the failover. (par 136-137)
34. (New) The method of claim 33, wherein the at least one metric comprises at least one of the following: a recovery time, a recovery time objective, a completion status, a binary success tracker, a timer, and a combination thereof. (par 136-137)
35. (New) The method of claim 32, wherein performing the failover comprises executing an automatic takeover of the application from the first data center to the second data center. (par 129)
36. (New) The method of claim 32, wherein performing the failover comprises initiating an application at the second data center. (par 129)
37. (New) The method of claim 32, wherein performing the failover comprises displaying, by the failover visualization, progress of at least one of the set of one or more virtual engineering activities. (fig 11)
39. (New) The method of claim 27, wherein the process inventory comprises a runbook template. (par 136, 139) [examiner’s note: par 33 of the Spec: a runbook is a compilation of ordered operations and/or procedures for performing a given process.]
49. (New) The one or more non-transitory, machine-readable medium of claim 48, the operations further comprising: performing the failover for the application based on the failover visualization. (fig 11; par 104: disaster recovery)
Claim(s) 41-45 is/are rejected as being the system implemented by the method of claim(s) 27, 32-34, 37, and is/are rejected on the same grounds.
Claim(s) 48, 50-51 is/are rejected as being the medium implemented by the method of claim(s) 27, 33, 28, and is/are rejected on the same grounds.
Claim(s) 38, 40, 46, 52 is/are rejected under 35 U.S.C. 103 as being unpatentable over Madhu et al. (US20160048408A1) in view of Visual Paradigm (Online BPMN Tool).
Madhu discloses:
38. (New) The method of claim 27, wherein the failover visualization for the failover.
However, Madhu does not explicitly disclose, while Visual Paradigm teaches:
comprises a visualization in business process modeling and notation (BPMN). (p 2)
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine a workflow engine of Madhu with workflow of Visual Paradigm. One of ordinary skill in the art would have been motivated to do so in order to aid in process improvement. (Visual Paradigm: p 2)
Madhu discloses:
40. (New) The method of claim 27,
However, Madhu does not explicitly disclose, while Visual Paradigm teaches:
wherein the workflow comprises a business process modeling and notation model. (p 2)
Claim(s) 46 is/are rejected as being the system implemented by the method of claim(s) 39-40, and is/are rejected on the same grounds.
Claim(s) 52 is/are rejected as being the medium implemented by the method of claim(s) 39-40, and is/are rejected on the same grounds.
Conclusion
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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/KATHERINE LIN/Primary Examiner, Art Unit 2113