DETAILED ACTION
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 .
This office action is responsive to communication filed on 04/29/2025.
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.
Claims 21 – 24, 26 – 29, 31 – 38, and 40 of US Application No. 19/192,833 are rejected on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claims 1 - 18 of U.S. Patent No. 12,316,812. Although the conflicting claims are not identical, they are not patentably distinct from each other because claims 1 - 18 of the U.S. Patent mentioned above, contain every element of claims 21 - 40 of the instant application and thus anticipate the claim of the instant application. Claims 21 - 40 of the instant application are therefore not patently distinct from claims 1 - 18 of the U.S. Patent No. 12,316,812 and as such are unpatentable over obvious-type double patenting.
"A later patent claim is not patentably distinct from an earlier patent claim if the later claim is obvious over, or anticipated by, the earlier claim. In re Longi, 759 F.2d at 896, 225 USPQ at 651 (affirming a holding of obviousness-type double patenting because the claims at issue were obvious over claims in four prior art patents); In re Berg, 140 F.3d at 1437, 46 USPQ2d at 1233 (Fed. Cir. 1998) (affirming a holding of obviousness-type double patenting where a patent application claim to a genus is anticipated by a patent claim to a species within that genus). " ELI LILLY AND COMPANY v BARR LABORATORIES, INC., United States Court of Appeals for the Federal Circuit, ON PETITION FOR REHEARING EN BANC (DECIDED: May 30, 2001).
Please see the table below:
US Application No. 19/192,833
US Patent Number 12,316,812
1. A method comprising:
receiving, from one or more client devices, a metrics submission comprising software usage data;
accessing a list of metrics category definitions corresponding to a set of metrics categories;
assigning the metrics submission to one or more metrics categories in the set of metrics categories based on the list of metrics category definitions;
receiving a request including deployment information; and
generating a score associated with at least one of the one or more metrics categories based on the deployment information, the score comprising an aggregate value based on at least the metrics submission received from the one or more client devices;
wherein the method is performed using one or more processors.
30. (New) The method of claim 21, wherein the generating a score associated with at least one of the one or more metrics categories includes: applying a scoring calculation that comprises of an algorithm that counts instances of a software product running on the one or more client devices; assigning a point to each client device of the one or more client devices running the software product; and summing one or more points for the one or more of client devices to generate the score.
27. (New) The method of claim 21, wherein the metrics submission includes a string.
28. (New) The method of claim 27, wherein the assigning the metrics submission to one or more metrics categories includes: parsing the metrics submission to identify a metrics type; and assigning the metrics submission to one or more metrics categories in the set of metrics categories based on the list of metrics category definitions and the metrics type.
26. (New) The method of claim 21, further comprising: causing display of a visualization indicative of the metrics submission and the score associated with the at least one of the one or more metrics categories.
22. (New) The method of claim 21, wherein the deployment information includes at least one selected from a group consisting of information associated with one or more computing devices, information associated with one or more software products, one or more software product versions, and information associated with one or more users.
23. (New) The method of claim 21, wherein the software usage data includes at least one selected from a group consistent of a rate or frequency with which features of a software product are executed, a number of devices executing the software product at a deployment, a number of deployments executing versions of the software product, a number of unique users, a number of failed login attempts, a frequency of use of the software product, a frequency of crashes, a number of bug reports, and one or more performance metrics related to a speed or efficiency of actions of the software product.
29. (New) The method of claim 21, wherein the metrics submission includes one or more device metrics submissions from the one or more client devices respectively.
24. (New) The method of claim 21, wherein the receiving a request including deployment information includes receiving a selection of the deployment information from a list of deployment information corresponding to a plurality of deployments.
25. (New) The method of claim 21, wherein the request is a first request, wherein the deployment information is first deployment information, wherein the score is a first score, wherein the method further comprises:
receiving a second request including second deployment information, the second deployment information being different from the first deployment information; and generating a second score associated with at least one of the one or more metrics categories based on the second deployment information, the second score comprising an aggregate value based on at least the metrics submission received from the one or more client devices.
31. (New) The method of claim 21, wherein the metrics submission includes an indication of at least one selected from a group consisting of:
a frequency of use of a software product;
a number of deployed systems running the software product;
a number of users of the software product;
a list of actions executed with the software product; and
a performance metric of the software product.
32. (New) A system comprising:
one or more memories comprising instructions stored thereon; and one or more processors configured to execute the instructions and perform a set of operations comprising:
receiving, from one or more client devices, a metrics submission comprising software usage data;
accessing a list of metrics category definitions corresponding to a set of metrics categories;
assigning the metrics submission to one or more metrics categories in the set of metrics categories based on the list of metrics category definitions;
receiving a request including deployment information; and generating a score associated with at least one of the one or more metrics categories based on the deployment information, the score comprising an aggregate value based on at least the metrics submission received from the one or more client devices.
39. (New) The system of claim 32, wherein the generating a score associated with at least one of the one or more metrics categories includes:
applying a scoring calculation that comprises of an algorithm that counts all instances of a software application running on the one or more client devices;
assigning a point to each client device of the one or more client devices running the software application; and summing one or more points for the one or more of client devices to generate the score.
33. (New) The system of claim 32, wherein the deployment information includes at least one selected from a group consisting of information associated with one or more computing devices, information associated with one or more software products, one or more software product versions, and information associated with one or more users.
34. (New) The system of claim 32, wherein the software usage data includes at least one selected from a group consistent of a rate or frequency with which features of a software product are executed, a number of devices executing the software product at a deployment, a number of deployments executing versions of the software product, a number of unique users, a number of failed login attempts, a frequency of use of the software product, a frequency of crashes, a number of bug reports, and one or more performance metrics related to a speed or efficiency of actions of the software product.
35. (New) The system of claim 32, wherein the receiving a request including deployment information includes receiving a selection of the deployment information from a list of deployment information corresponding to a plurality of deployments.
36. (New) The system of claim 32, wherein the request is a first request, wherein the deployment information is first deployment information, wherein the score is a first score, wherein the set of operations further comprise:
receiving a second request including second deployment information, the second deployment information being different from the first deployment information; and
generating a second score associated with at least one of the one or more metrics categories based on the second deployment information, the second score comprising an aggregate value based on at least the metrics submission received from the one or more client devices.
37. (New) The system of claim 32, wherein the set of operations further comprise: causing display of a visualization indicative of the metrics submission and the score associated with the at least one of the one or more metrics categories.
38. (New) The system of claim 32, wherein the metrics submission includes a string.
40. (New) A non-transitory machine-readable storage medium comprising instructions that, when executed by one or more processors, cause the one or more processors to perform operations comprising:
receiving, from one or more client devices, a metrics submission comprising software usage data;
accessing a list of metrics category definitions corresponding to a set of metrics categories;
assigning the metrics submission to one or more metrics categories in the set of metrics categories based on the list of metrics category definitions;
receiving a request including deployment information; and generating a score associated with at least one of the one or more metrics categories based on the deployment information, the score comprising an aggregate value based on at least the metrics submission received from the one or more client devices.
1. A method comprising:
receiving, from one or more client devices, a metrics submission comprising software usage data;
accessing a list of metrics category definitions corresponding to a set of metrics categories;
assigning the metrics submission to one or more metrics categories in the set of metrics categories based on the list of metrics category definitions; and
generating a score associated with at least one of the one or more metrics categories, the score comprising an aggregate value based on at least the metrics submission received from the one or more client devices; wherein the generating a score associated with at least one of the one or more metrics categories includes: applying a scoring calculation that comprises of an algorithm that counts all instances of a software application running on the one or more client devices; assigning a point to each client device of the one or more client devices running the software application; and summing the points for the one or more of client devices to generate the score; wherein the method is performed using one or more processors.
2. The method of claim 1, wherein the metrics submission is a string.
3. The method of claim 2, wherein the assigning the metrics submission to one or more metrics categories includes: parsing the metrics submission to identify a metrics type; and assigning the metrics submission to one or more metrics categories in the set of metrics categories based on the list of metrics category definitions and the metrics type.
4. The method of claim 1, further comprising: receiving a visualization request including a visualization type; generates a visualization indicative of the metrics submission and the score associated with the at least one of the one or more metrics categories based on the visualization type; and causing display of the visualization indicative of the metrics submission and the score associated with the at least one of the one or more metrics categories.
5. The method of claim 1, further comprising: receiving a visualization request including deployment information; generates a visualization indicative of the metrics submission and the score associated with at least one of the one or more metrics categories based on the deployment information; and causing display of the visualization indicative of the metrics submission and the score associated with the at least one of the one or more metrics categories.
6. The method of claim 5, wherein the deployment information includes at least one selected from a group consisting of system information, software product information, and device information.
8. The method of claim 1, wherein the metrics submission includes an indication of at least one selected from a group consisting of: a frequency of use of a software application; a number of unique users of the software application; and a list of actions executed with the software application.
7. The method of claim 5, wherein the metrics submission includes one or more device metrics submissions from the one or more client devices respectively.
9. A system comprising: one or more memories comprising instructions stored thereon; and one or more processors configured to execute the instructions and perform operations comprising: receiving, from one or more client devices, a metrics submission comprising software usage data; accessing a list of metrics category definitions corresponding to a set of metrics categories; assigning the metrics submission to one or more metrics categories in the set of metrics categories based on the list of metrics category definitions; and generating a score associated with at least one of the one or more metrics categories, the score comprising an aggregate value based on at least the metrics submission received from the one or more client devices; wherein the generating a score associated with at least one of the one or more metrics categories includes: applying a scoring calculation that comprises of an algorithm that counts all instances of a software application running on the one or more client devices; assigning a point to each client device of the one or more client devices running the software application; and summing the points for the one or more of client devices to generate the score.
11. The system of claim 10, wherein the assigning the metrics submission to one or more metrics categories includes: parsing the metrics submission to identify a metrics type; and assigning the metrics submission to one or more metrics categories in the set of metrics categories based on the list of metrics category definitions and the metrics type.
12. The system of claim 9, wherein the operations further comprise: receiving a visualization request including a visualization type; generates a visualization indicative of the metrics submission and the score associated with the at least one of the one or more metrics categories based on the visualization type; and causing display of the visualization indicative of the metrics submission and the score associated with the at least one of the one or more metrics categories.
13. The system of claim 9, wherein the operations further comprise: receiving a visualization request including deployment information; generates a visualization indicative of the metrics submission and the score associated with at least one of the one or more metrics categories based on the deployment information; and causing display of the visualization indicative of the metrics submission and the score associated with the at least one of the one or more metrics categories.
14. The system of claim 13, wherein the deployment information includes at least one selected from a group consisting of system information, software product information, and device information.
15. The system of claim 13, wherein the metrics submission includes one or more device metrics submissions from the one or more client devices respectively.
16. The system of claim 9, wherein the metrics submission includes an indication of at least one selected from a group consisting of: a frequency of use of a software application; a number of unique users of the software application; and a list of actions executed with the software application.
10. The system of claim 9, wherein the metrics submission is a string.
17. A non-transitory machine-readable storage medium comprising instructions that, when executed by one or more processors, cause the one or more processors to perform operations comprising:
receiving, from one or more client devices, a metrics submission comprising software usage data; accessing a list of metrics category definitions corresponding to a set of metrics categories; assigning the metrics submission to one or more metrics categories in the set of metrics categories based on the list of metrics category definitions; and generating a score associated with at least one of the one or more metrics categories, the score comprising an aggregate value based on at least the metrics submission received from the one or more client devices; wherein the generating a score associated with at least one of the one or more metrics categories includes: applying a scoring calculation that comprises of an algorithm that counts all instances of a software application running on the one or more client devices; assigning a point to each client device of the one or more client devices running the software application; and summing the points for the one or more of client devices to generate the score.
18. The non-transitory machine-readable storage medium of claim 17, wherein the operations further comprise: receiving a visualization request including a visualization type; generates a visualization indicative of the metrics submission and the score associated with the at least one of the one or more metrics categories based on the visualization type; and causing display of the visualization indicative of the metrics submission and the score associated with the at least one of the one or more metrics categories.
Claim Rejections - 35 USC § 102
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 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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 21 – 24, 26 – 29, 31 - 35, 37 – 38, and 40 are rejected under 35 U.S.C. 102(a)(1)/(a)(2) as being anticipated by Wood et al (US 2013/0124720; hereinafter Wood).
Regarding claim 21, Wood discloses a method comprising:
receiving, from one or more client devices, a metrics submission comprising software usage data (abstract; paragraphs [0009 - 0010], [0033], [0043], [0052]; Wood discloses an example where aggregation can be facilitated using various head nodes and various aggregators including one instance where a head node 320 and an aggregator 314 are used to report on software usage to deploy other, at least partially in-cloud, deployment);
accessing a list of metrics category definitions corresponding to a set of metrics categories (paragraphs [0028 – 0030]);
assigning the metrics submission to one or more metrics categories in the set of metrics categories based on the list of metrics category definitions (paragraphs [0025], [0030 – 0031], [0035]; Wood discloses that this module reports usage to a central tracker service 116. At a scheduled interval, which is configured by the central tracker service 116, the aggregator module will collect usage data and report it. In some embodiments, the usage data may be reported in usage reports, such as usage reports 118, 218, 310, 312 and 316);
receiving a request including deployment information (paragraphs [0020], 0054 – 0055]); and
generating a score associated with at least one of the one or more metrics categories based on the deployment information, the score comprising an aggregate value based on at least the metrics submission received from the one or more client devices (paragraphs [0046 – 0047]; Wood discloses that embodiments may be practiced where merging different data instances includes selecting at least one of an average, mean, or statistical aggregation of data values from among the different data instances. For example, data values could be averaged over different reports occurring during the same interval from the same deployment);
wherein the method is performed using one or more processors (paragraphs [0056], [0062]).
Regarding claim 22, Wood discloses the method of claim 21, wherein the deployment information includes at least one selected from a group consisting of information associated with one or more computing devices, information associated with one or more software products, one or more software product versions, and information associated with one or more users ().
Regarding claim 23, Wood discloses the method of claim 21, wherein the software usage data includes at least one selected from a group consistent of a rate or frequency with which features of a software product are executed, a number of devices executing the software product at a deployment, a number of deployments executing versions of the software product, a number of unique users, a number of failed login attempts, a frequency of use of the software product, a frequency of crashes, a number of bug reports, and one or more performance metrics related to a speed or efficiency of actions of the software product (paragraph [0032]; Wood discloses a unique identifier).
Regarding claim 24, Wood discloses the method of claim 21, wherein the receiving a request including deployment information includes receiving a selection of the deployment information from a list of deployment information corresponding to a plurality of deployments (paragraphs [0046 – 0047, [0054 – 0055]).
Regarding claim 26, Wood discloses the method of claim 21, further comprising:
causing display of a visualization indicative of the metrics submission and the score associated with the at least one of the one or more metrics categories (paragraphs [0020], [0038], [0054 – 0055]; Wood discloses that usage data is packaged in XML in such a way that the tracker service can put it directly into the operational database in this form. This allows the tracker service to process more requests, as it is not spending as much time processing data reports. Later on, when time is less important, XML can be processed by the developer.).
Regarding claim 27, Wood discloses the method of claim 21, wherein the metrics submission includes a string (paragraphs [0040 – 0043]).
Regarding claim 28, Wood discloses the method of claim 27, wherein the assigning the metrics submission to one or more metrics categories includes:
parsing the metrics submission to identify a metrics type (); and assigning the metrics submission to one or more metrics categories in the set of metrics categories based on the list of metrics category definitions and the metrics type (paragraphs [0028]; Wood discloses that the processed data can be stored in a reporting database 406. Business intelligence tools 416 can analyze the processed data in the reporting database 406 to make decisions regarding present or future deployments, service marketing, or other decisions).
Regarding claim 29, Wood discloses the method of claim 21, wherein the metrics submission includes one or more device metrics submissions from the one or more client devices respectively (paragraphs [0028 – 0030], [0032]; Wood discloses that the cluster deployment is first and foremost a platform for executing distributed workloads, and as such, a cluster can be used to run a service for deploying new cloud-hosted clusters on behalf of a customer).
Regarding claim 30, Wood discloses the method of claim 21, wherein the generating a score associated with at least one of the one or more metrics categories includes:
applying a scoring calculation that comprises of an algorithm that counts instances of a software product running on the one or more client devices;
assigning a point to each client device of the one or more client devices running the software product (); and
summing one or more points for the one or more of client devices to generate the score ().
Regarding claim 31, Wood discloses the method of claim 21, wherein the metrics submission includes an indication of at least one selected from a group consisting of:
a frequency of use of a software product; a number of deployed systems running the software product; a number of users of the software product; a list of actions executed with the software product (paragraph [0032]; and a performance metric of the software product (paragraph [0052]).
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.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
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.
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 25 and 36 are rejected under 35 U.S.C. 103 as being unpatentable over Wood et al (US 2013/0124720; hereinafter Wood).
Regarding claim 25, Wood discloses all the limitations in claim 21, except for receiving a second request including second deployment information, the second deployment information being different from the first deployment information; and generating a second score associated with at least one of the one or more metrics categories based on the second deployment information, the second score comprising an aggregate value based on at least the metrics submission received from the one or more client devices.
However, one skilled in the art recognizes that substituting a second request for a first request, a second deployment for a first deployment, and a second score for a first score as described above in claim 21 would be an obvious variation in the claim since using a second one as opposed to the first one do not provide any further advantages, and the invention would perform equally the same with only the first one.
Therefore, it would have been obvious to one of ordinary skill in the art to do so for the purpose of achieving the same end results.
Allowable Subject Matter
Claim 30 and 39 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.
Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to YVES DALENCOURT whose telephone number is (571)272-3998. The examiner can normally be reached M-F 8AM-5:30PM.
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/YVES DALENCOURT/ Primary Examiner, Art Unit 2457
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