DETAILED ACTION
The non-final office action is responsive to the filing of U.S. Patent Application 19/058,648 on 02/20/2025. Claims 1-20 are pending; claims 1-20 are rejected.
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 .
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 02/20/2025 and 05/14/2026 were filed before the mailing date of the non-final office action. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Claim Rejections - 35 USC § 103
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-20 are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent Application Publication 2020/0314175 A1 to Dailianas et al. (hereinafter Dailianas) in view of U.S. Patent Application Publication 2014/0236680 A1 to Chen et al. (hereinafter Chen).
As to claim 1, Dailianas teaches a method (Systems, methods and apparatus, including computer program products, are disclosed for regulating access of consumers (e.g., applications, containers, or VMs) to resources and services (e.g., storage), Dailianas, Abstract) comprising:
identifying one or more configuration items of a computing infrastructure, wherein the one or more configuration items are employed to provide s (A consumer element manager (such as one of element managers 234, 236, 238, 240, 242, 244 shown in FIG. 2), desiring services from a provider element manager, queries the supply chain model databases 246 in search of the best priced provider or providers of the desired services. The query specifies requirements and the service or services the element manager is requesting. For example, a query may take the following form: [0105] Query: Server, CPU.units=50 Mhz, Memory.units=4 GB, StorageIO.units=200 Mbps, NetworkIO.units=100 Mbps, Dailianas, [0085]-[0107]).
Dailianas differs from the instant claim in not disclosing a digital service.
However if users can identify items utilized to provide digital services users can identify items utilized to provide a digital service. For example, Chen discloses identifying items utilized to provide a digital service (The analysis executes as module 220 to identify service-level factors for a service, and module 225 to identify dependencies between the service-level factors. Analysis is facilitated by an analysis module 230, which generates impact information corresponding to the service-level factors and dependencies, Chen, [0031]-[0032], [0041]-[0074]. Note: service-level factors include price of energy from computing, networking, storage, and facility equipment as disclosed in [0031], “computing, networking, storage, and facility equipment” reads on claimed configuration items).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to identify service-level factors associated with a service as taught by Chen to modify the method of Dailianas in order to provide a way to account for resources implemented on cross-data platforms, for example, those being provided by the so-called "cloud" computing environment.
Dailianas-Chen discloses
receiving one or more respective resource expenditures associated with the one or more configuration items (price[x]=cost/(1−(U+x)/C)4, where C=capacity of the resource; U=amount of resource used; and x=new demand, Dailianas, [0085]-[0107]; also in Chen, [0031]-[0032], [0041]-[0074]);
aggregating the one or more respective resource expenditures to calculate a metric for the digital service (once the relevant consumer element managers and provider element managers are running, having been initiated by the platform manager 250, a consumer element manager shops for lowest cost provider for a bundle of services by querying the supply chain model databases 246 as described above (step 502), and contacts the provider element manager to buy services (step 504), Dailianas, [0107]-[0118], [0017]-[0018], Fig, 5-7 and 9; also in Chen, [0031]-[0032], [0041]-[0074]);
generating, based on the metric, a recommendation to adjust a characteristic of the one or more configuration items (Dailianas, [0011]-[0014], [0017]-[0018], [0058], [0169]-[0173]); and
causing a graphical user interface depicting the recommendation to be displayed (It may also provide a summary or visualization of available cloud providers and metrics associated with one or more such providers. For example, a user interface (UI) may be provided which provides visual or graphical representations of public and/or private cloud providers. According to various embodiments, the UI will display one or more of the following: target providers supported by a customer; a list of one or more targets that the customer belongs to; the discount available from one or more providers; the customer's budget; the total mount currently spent by the customer on providers; or a list of users in the customer's account, Dailianas, [0169]-[0173]).
As to claim 2, Dailianas-Chen discloses the method of claim 1, wherein the generating the recommendation to adjust the characteristic of the one or more configuration items is in response to the metric exceeding a threshold value (The consumer element manager determines whether the price of the new provider found is lower than the price of the old provider (where the consumer resides at the time), or according to some embodiments, whether it is lower by a threshold amount (decision block 522), Dailianas, [0109]-[0119], [0120]-[0129]).
As to claim 3, Dailianas-Chen discloses the method of claim 1, wherein the recommendation is to adjust a size of the one or more configuration items to rightsize the one or more configuration items for providing the digital service (Dailianas, [0181]-[0188]).
As to claim 4, Dailianas-Chen discloses the method of claim 1, wherein the recommendation is to adjust a time of use schedule for the one or more configuration items (Dailianas, [0011]-[0014], [0017]-[0018], [0058], [0109]-[0119], [0169]-[0173]).
As to claim 5, Dailianas-Chen discloses the method of claim 1, wherein the one or more configuration items comprise one or more pieces of hardware, one or more pieces of software, or a combination thereof (Dailianas, [0085]-[0107]).
As to claim 6, Dailianas-Chen discloses the method of claim 1, comprising discovering the one or more configuration items of the computing infrastructure.
As to claim 7, Dailianas-Chen discloses the method of claim 1, comprising: identifying one or more additional configuration items of the computing infrastructure, wherein the one or more configuration items are employed to provide an additional digital service; receiving one or more additional respective resource expenditures associated with the one or more additional configuration items; aggregating the one or more additional respective resource expenditures to calculate an additional metric for the additional digital service; generating, based on the additional metric, an additional recommendation to adjust an additional characteristic of the one or more additional configuration items; and including the additional recommendation in the graphical user interface (Dailianas, [0011]-[0014], [0017]-[0018], [0058], [0085]-[0107], [0107]-[0118], [0169]-[0173], Fig. 5-7, Fig. 9).
As to claims 8-20, the same reasoning applies mutatis mutandis to the corresponding system claims 8-14 and non-transitory computer readable medium claims 15-20 (Note: processing circuitry and memory/computer readable media are disclosed in Dailianas, [0229]-[0231]). Accordingly, claims 8-20 are rejected under 35 U.S.C. 103 as being unpatentable over Dailianas in view of Chen.
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.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual 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/apply/applying-online/eterminal-disclaimer.
Claims 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-21 of U.S. Patent No. 12,267,211 B2 (hereinafter P211). Although the claims at issue are not identical, they are not patentably distinct from each other.
Claim 1 of the Instant Application
Claims 1, 13, and 15 of P211
A method comprising:
A method, comprising:
(Note: all claim limitations are from claim 1 except specifically marked)
identifying one or more configuration items of a computing infrastructure, wherein the one or more configuration items are employed to provide a digital service;
discovering a plurality of configuration items of a computing infrastructure;
identifying a subset of the plurality of configuration items utilized to provide a digital service;
receiving one or more respective resource expenditures associated with the one or more configuration items;
obtaining a plurality of resource expenditures respectively associated with at least a portion of the plurality of configuration items, wherein:
the plurality of resource expenditures includes a resource expenditure associated with a virtual machine shared by the subset of the plurality of configuration items;
at least one of the plurality of resource expenditures is reported by a provider different from a platform managing the computing infrastructure; and
at least a subset of the plurality of resource expenditures is shared by the subset of the plurality of configuration items including a first configuration item and a second configuration item;
aggregating the one or more respective resource expenditures to calculate a metric for the digital service;
associating the subset of the plurality of resource expenditures with the subset of the plurality of configuration items; and
aggregating the subset of the plurality of resource expenditures to generate a metric of the digital service.
generating, based on the metric, a recommendation to adjust a characteristic of the one or more configuration items; and
(from claim 15) The method of claim 1, further comprising determining a recommendation based at least on the generated metric.
causing a graphical user interface depicting the recommendation to be displayed.
(from claim 13) The method of claim 1, further comprising outputting the generated metric of the digital service on a graphical user interface.
Claims 1 of the instant application is obviously disclosed by patent claims 1, 13, and 15 in that claims 1, 13, and 15 of the patent obviously contain all the limitations of claim 1 of the instant application. Claim 1 of the instant application therefore is not patently distinct from the earlier patent claim and as such is unpatentable for obvious-type double patenting.
As to claims 2-20, claims 1-21 of P211 obviously disclose all limitations in claims 2-20 of the instant application. Accordingly, claims 2-20 of the instant application are not patently distinct from the earlier patent claims and as such are unpatentable for obvious-type double patenting.
Conclusion
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/RUOLEI ZONG/Primary Examiner, Art Unit 2449 7/7/2026
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