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 09/30/2025.
Claims 1 was cancelled. Claims 2 – 21 are currently pending.
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 2 – 21 are rejected on the ground of nonstatutory double patenting as being and unpatentable over claims 1 - 23 of U.S. Patent No. 9,142,049 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because subject matters claimed in the instant application can also found in ‘049.
In claim 1 of instant application, Applicant claims a “computer-implemented method for displaying performance data for a computing environment, the method comprising:generating a foreground of a chart displaying a line for a selected node from a set of nodes representing a plurality of entities of the computing environment, the line representing how an average value of a performance metric associated with the selected node varies over time, wherein a leaf node of the set of nodes is selectable as the selected node to generate the line as an average value of the performance metric for the leaf node, wherein a parent node of the set of nodes is selectable as the selected node to generate the line as an average value of the performance metric over all leaf nodes under the parent node; wherein the line is displayed against a background illustrating how a distribution of the performance metric for a reference subset of the set of nodes varies over time, wherein the background includes two or more percentile lines for the performance metric, and wherein the two or more percentile lines are determined with respect to values of the performance metric for the reference subset”.
Similar limitation can also find in ‘049. Certain limitation found in claim 1 of ‘049 but not in instant application such as “determining values for a performance metric for a plurality of entities that comprise the computing environment; displaying the computing environment as a set of nodes representing the plurality of entities;…”
It would have been obvious to one with ordinary skill in the art before the effective filling date of the claim invention to broaden the claims at no additional cost in development.
The following is comparison table between claim 1.
Instant application ‘088 Patent ‘049
A computer-implemented method for displaying performance data for a computing environment, the method comprising:
A computer-implemented method for displaying performance data for a computing environment, the method comprising:
determining values for a performance metric for a plurality of entities that comprise the computing environment;
displaying the computing environment as a set of nodes representing the plurality of entities;
generating a foreground of a chart displaying a line for a selected node from a set of nodes representing a plurality of entities of the computing environment,
and for a selected node in the set of nodes, displaying a chart with a line illustrating how a value of the performance metric for the selected node varies over time,
the line representing how an average value of a performance metric associated with the selected node varies over time,
wherein the line is displayed against a background illustrating how a distribution of the performance metric for a reference subset of the set of nodes varies over time,
wherein the background includes two or more percentile lines for the performance metric, and wherein the two or more percentile lines are determined with respect to values of the performance metric for the reference subset.
wherein the reference subset includes multiple nodes, and wherein the background includes a set of two or more percentile lines for the multiple nodes,
wherein a leaf node of the set of nodes is selectable as the selected node to generate the line as an average value of the performance metric for the leaf node, wherein a parent node of the set of nodes is selectable as the selected node to generate the line as an average value of the performance metric over all leaf nodes under the parent node; wherein the line is displayed against a background illustrating how a distribution of the performance metric for a reference subset of the set of nodes varies over time,
wherein a percentile line in the set of two or more percentile lines is associated with a given percentile and indicates how a percentile-specific value of the performance metric that achieves the given percentile varies over time as values of the performance metric for the multiple nodes in the reference subset vary over time.
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.
Claims 2 – 21 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
Step 1:
Claims 1 – 5, 7 - 11 are directed to a "method, a device (comprising memory, processor and program)", and therefore, directed to a statutory category.
Step 2A, Prong One:
The independent claims 2, 11, 16 includes the following limitations that directed to an abstract idea:
“generating a foreground of a chart displaying a line for a selected node from a set of nodes representing a plurality of entities of the computing environment, the line representing how an average value of a performance metric associated with the selected node varies over time”, as drafted, recites a mentally process as an evaluation or observation. The claim describes “the line representing how an average value of a performance metric”, is considered as a mathematical concept or formula. Comparing variables over time and analyzing performance are tasks traditionally performed mentally by the user. Generating a chart to visualize data without requiring a specific, transformative technical improvement in how the computer operates is patent-ineligible, is an abstract concept that is a fundamental mental process or a "method of organizing human activity. Merely charting "how a value varies over time" is considered collecting and displaying abstract data. This is consistent with the disclosure in Para. 0106, 0108 wherein one can display a foreground distribution values for a node on a screen.
“wherein a leaf node of the set of nodes is selectable as the selected node to generate the line as an average value of the performance metric for the leaf node; wherein a parent node of the set of nodes is selectable as the selected node to generate the line as an average value of the performance metric over all leaf nodes under the parent node”, as drafted, recites a mentally process as an evaluation or observation. Calculating an average value of a metric is a basic mathematical relationship and calculation. Collecting data (the performance metric), organizing it hierarchically (the set of nodes), selecting a category (the leaf node), and displaying it (generating a line) represents the classic abstract concept of "collecting, analyzing, and displaying information." If a process can be performed conceptually by a human with a pen and paper, it is a mental process.
“wherein the line is displayed against a background illustrating how a distribution of the performance metric for a reference subset of the set of nodes varies over time”, as drafted, recites a mentally process as an evaluation or observation. The act of generating a graphical representation (display), comparing data against a baseline, and observing distributions are concepts that can be practically performed in the human mind or with pen and paper (See the Supreme Court (Alice v. CLS Bank)).
“wherein the background includes two or more percentile lines for the performance metric, and wherein the two or more percentile lines are determined with respect to values of the performance metric for the reference subset”, as drafted, recites a mentally process as an evaluation or observation. Calculating or determining "percentile lines" based on "values of the performance metric" is inherently a mathematical calculation and relationship. Looking at data points, identifying a "reference subset," and determining percentiles are logical evaluations. Because these steps can be done conceptually in the human mind or with a pen and paper, they are categorized as abstract mental processes.
Step 2A, Prong Two:
The claim recites no additional elements. At most one might consider that a "non transitory computer readable storage medium… instructions..." as claimed in claim 11 – 21, might be considered to represent a computer-implemented database consistent with Fig. 1 even though the claim does not recite any computer. At most this would be a high-level recitation of a generic computer components and represents mere instructions to apply the abstract idea on a computer as in MPEP 2106.05(f), which does not provide integration into a practical application.
Viewing the additional limitations together and the claim as a whole, nothing provides integration into a practical application
Step 2B
The claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception.
In this case, the "non transitory computer readable storage medium… instructions..." are identified as insignificant extra-solution activity above when re-evaluated these elements are well-understood, routine, and conventional as evidenced by the court cases in MPEP 2106.05(d)(II),' "i. Receiving or transmitting data over a network, e.g., using the Internet to gather data, Symantec, 838 F.3d at 1321, 120 USPQ2d at 1362 (utilizing an intermediary computer to forward information); "computer-implemented", and performed by "one or more processors", a system includes memory storing instruction coupled to a processor, are considered insignificant extra- solution activity, and do not take the claim limitations out of the mental processes grouping. See MPEP - 2106.05(g) ("whether the limitation is significant").
Accordingly, the additional limitations are not providing significantly more than the
judicial exception. Looking at the claim as a whole does not change this conclusion and
therefore, the claim is ineligible.
The dependent claims 3 - 4 includes “wherein if the selected node is a parent node, and if the set of nodes is organized as a tree having edges representing parent- child relationships between the plurality of entities, the value of the performance metric for the selected node is an average value for the performance metric across descendant nodes of the selected node in the tree”, as drafted this recites a mentally performable process as an evaluation or judgement. Organizing information into a tree structure based on relationships and averaging numbers are tasks that can be performed via "concepts performed in the human mind" (with the aid of a pencil and paper). Federal Circuit case law (such as Electric Power Group v. Alstom) establishes that collecting data, analyzing data (averaging it), and displaying the results is an abstract idea if it does not improve the underlying computer hardware or network operations. Using a generic data structure to store and calculate an average does not transition the claim into a patent-eligible "technological improvement.”
The dependent claims 5 includes “wherein the background includes a stream chart comprising regions associated with percentile ranges, wherein borders between the regions represent one or more of the following: a minimum value line, a 25th percentile line, a 50th percentile line, a 75th percentile line, a 95th percentile line, a maximum value line, and a line associated with a standard deviation”, are identified as insignificant extra-solution activity above when re-evaluated these elements are well-understood, routine, and conventional. Calculating percentiles, maximum values, and standard deviations are mathematical formulas. Comparing data and determining percentiles are tasks that can be performed in the human mind or with pen and paper.
The dependent claims 6 - 10 includes “node was selected by user…a virtual machine… CPU”, as drafted this recites a mentally performable process as an evaluation or judgement. Hovering a cursor over a node is typically an abstract idea as a mental process or an automation of human activity. At most this would be a high-level recitation of a generic computer components (virtual machine… CPU) and represents mere instructions to apply the abstract idea on a computer as in MPEP 2106.05(f), which does not provide integration into a practical application.
Claims 11 - 21, Applicant claims the abstract idea on a device with memory, processors and instructions to carry-out the method as in claim 2, without adding further limitations that amount to more than generally linking the use of the exception to a particular technological environment. Generic computer components recited as performing generic computer functions that are well-understood, routine and conventional activities amount to no more than implementing the abstract idea with a computerized system. The use of generic computer components to “querying data…" do not impose any meaningful limit on the computer implementation of the abstract idea. Thus, taken alone, the additional elements do not amount to significantly more than the above-identified judicial exception (the abstract idea).
Looking at the limitations as an ordered combination adds nothing that is not already present when looking at the elements taken individually. There is no indication that the combination of elements improves the functioning of a computer or improves any other technology. Their collective functions merely provide conventional computer implementation. The claims are not patent eligible.
The following are some related arts:
Bugenhagen et al (U.S. 8549405 B2) discloses “network performance…processor further configured to generate a chart indicating node segment status usage for a particular node segment on the packet network, the chart displaying a graph of total bandwidth usage over a time period, real-time communication bandwidth usage over the time period, and non-real time bandwidth usage over the time period” in claim 13.
Ulreich et al (U.S. 20060059011 A1) discloses “performance curve – a graphical chart rendering information regarding operating characteristics of an electric motor. For example, performance curves can graphically display motor RPM vs. torque, current, and/or power factor” (Para. 0072).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CAM LINH T NGUYEN whose telephone number is (571)272-4024. The examiner can normally be reached M-F: 7:00 - 3:00 pm.
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/CAM LINH T NGUYEN/Primary Examiner, Art Unit 2161
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