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 .
Continuation
This application is a continuation application of U.S. application no. 17/079,359 filed on 08/13/2013 (“Parent Application”). See MPEP §201.07. In accordance with MPEP §609.02 A. 2 and MPEP §2001.06(b) (last paragraph), the Examiner has reviewed and considered the prior art cited in the Parent Application. Also in accordance with MPEP §2001.06(b) (last paragraph), all documents cited or considered ‘of record’ in the Parent Application are now considered cited or ‘of record’ in this application. Additionally, Applicant(s) are reminded that a listing of the information cited or ‘of record’ in the Parent Application need not be resubmitted in this application unless Applicants desire the information to be printed on a patent issuing from this application. See MPEP §609.02 A. 2. Finally, Applicants are reminded that the prosecution history of the Parent Application is relevant in this application. See e.g., Microsoft Corp. v. Multi-Tech Sys., Inc., 357 F.3d 1340, 1350, 69 USPQ2d 1815, 1823 (Fed. Cir. 2004) (holding that statements made in prosecution of one patent are relevant to the scope of all sibling patents).
Priority
Applicant’s claim for the benefit of a prior-filed application under 35 U.S.C. 119 and/or 35 U.S.C. 120 is acknowledged.
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. Effective January 1, 1994, a registered attorney or agent of record may sign a terminal disclaimer. A terminal disclaimer signed by the assignee must fully comply with 37 CFR 3.73(b).
Claims 27-45 are rejected on the ground of nonstatutory double patenting over claims 1 and 4 of U.S. Patent No. 11934880 since the claims, if allowed, would improperly extend the "right to exclude" already granted in the patent.
Claims of U.S. Patent No. 11934880
Claims of the instant application
Claims 1 and 4
Claims 27-30, 35, 37-40, and 45
The chart above maps claims of the instant application to corresponding claims of U.S. Patent 11934880 that are patentably indistinct, though not identical. One of ordinary skill in the art would have recognized the slight differences between the claim language of the corresponding claims as being directed towards intention, slight variations in terminology, or obvious variants of corresponding claim elements, and therefore these claims are not patentably distinct from one another despite these slight differences.
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 27-45 are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-patentable subject matter. The claims are directed to an abstract idea without significantly more.
Claims 27-45 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more. The judicial exception is not integrated into a practical application. The claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception.
With respect to Step 1 of the eligibility inquiry (as explained in MPEP 2106), it is first noted that the method (claims 27-36) and system (claims 37-45) are directed to potentially eligible categories of subject matter (i.e., process, machine, and article of manufacture respectively). Thus, Step 1 is satisfied.
With respect to Step 2, and in particular Step 2A Prong One, it is next noted that the claims recite an abstract idea by reciting concepts performed in the human mind (including an observation, evaluation, judgment, opinion), which falls into the “Mental Process” group; and by reciting fundamental economic principles or practices (including hedging, insurance, mitigating risk); commercial or legal interactions (including agreements in the form of contracts; legal obligations; advertising, marketing or sales activities or behaviors; business relations); managing personal behavior or relationships or interactions between people (including social activities, teaching, and following rules or instructions) which falls into the “Certain methods of organizing human activity” within the enumerated groupings of abstract ideas. The mere nominal recitation of a generic computer does not take the claim limitation out of methods of organizing human activity or the mental processes grouping. Thus, the claim recites a mental process for performing certain methods of organizing human activity.
The limitations reciting the abstract idea(s) (Mental process and Certain methods of organizing human activity), as set forth in exemplary claim 1, are: determining a performance metric for each of the plurality of computing resources based at least in part on the execution of the first workload, wherein each performance metric comprises a value corresponding to a performance of a computing resource of the plurality of computing resources while executing the first workload; and determining a work output potential for the computing system by normalizing and aggregating the performance metrics for each computing resource of the plurality of computing resources, the work output potential defining a system-level capability of the computing system and being a common unit of measure. Independent claims 8 and 14 recite the CRM and system for performing the method of independent claim 1 without adding significantly more. Thus, the same rationale/analysis is applied.
With respect to Step 2A Prong Two, the judicial exception is not integrated into a practical application. The additional elements are directed to: executing a first workload on a computing system, the computing system having a computing system configuration comprising a plurality of computing resources, the first workload being a benchmark workload executed across the plurality of computing resources over a period of time…; one or more processors; and memory comprising instructions that, when executed by the one or more processors, cause the one or more processors to: (as recited in the claims). However, these elements fail to integrate the abstract idea into a practical application because they fail to provide an improvement to the functioning of a computer or to any other technology or technical field, fail to apply the exception with a particular machine, fail to apply the judicial exception to effect a particular treatment or prophylaxis for a disease or medical condition, fail to effect a transformation of a particular article to a different state or thing, and fail to apply/use the abstract idea in a meaningful way beyond generally linking the use of the judicial exception to a particular technological environment.
Accordingly, because the Step 2A Prong One and Prong Two analysis resulted in the conclusion that the claims are directed to an abstract idea, additional analysis under Step 2B of the eligibility inquiry must be conducted in order to determine whether any claim element or combination of elements amount to significantly more than the judicial exception.
With respect to Step 2B of the eligibility inquiry, it has been determined that the claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception. The additional limitation(s) is/are directed to: executing a first workload on a computing system, the computing system having a computing system configuration comprising a plurality of computing resources, the first workload being a benchmark workload executed across the plurality of computing resources over a period of time…; one or more processors; and memory comprising instructions that, when executed by the one or more processors, cause the one or more processors to: (as recited in the claims) for implementing the claim steps/functions. These elements have been considered, but merely serve to tie the invention to a particular operating environment (i.e., computer-based implementation), though at a very high level of generality and without imposing meaningful limitation on the scope of the claim.
The additional elements have been evaluated, but fail to integrate the abstract idea into a practical application because they amount to using generic computing elements or instructions (software) to perform the abstract idea, similar to adding the words “apply it” (or an equivalent), which merely serves to link the use of the judicial exception to a particular technological environment (generic computing environment). See MPEP 2106.05(f) and 2106.05(h). Even if the acquiring steps are considered as additional elements, these steps at most amount to insignificant extra-solution activity accomplished via receiving/transmitting data, which is not enough to amount to a practical application. See MPEP 2106.05(g).
In addition, Applicant’s Specification (paragraph [0043]) describes generic off-the-shelf computer-based elements for implementing the claimed invention, and which does not amount to significantly more than the abstract idea, which is not enough to transform an abstract idea into eligible subject matter. Such generic, high-level, and nominal involvement of a computer or computer-based elements for carrying out the invention merely serves to tie the abstract idea to a particular technological environment, which is not enough to render the claims patent-eligible, as noted at pg. 74624 of Federal Register/Vol. 79, No. 241, citing Alice, which in turn cites Mayo. See, e.g., Symantec, 838 F.3d at 1321, 120 USPQ2d at 1362 (utilizing an intermediary computer to forward information); TLI Communications LLC v. AV Auto. LLC, 823 F.3d 607, 610, 118 USPQ2d 1744, 1745 (Fed. Cir. 2016) (using a telephone for image transmission); OIP Techs., Inc., v. Amazon.com, Inc., 788 F.3d 1359, 1363, 115 USPQ2d 1090, 1093 (Fed. Cir. 2015) (sending messages over a network); buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355, 112 USPQ2d 1093, 1096 (Fed. Cir. 2014) (computer receives and sends information over a network).
In addition, when taken as an ordered combination, the ordered combination adds nothing that is not already present as when the elements are taken individually. There is no indication that the combination of elements integrate the abstract idea into a practical application. Their collective functions merely provide conventional computer implementation. Therefore, when viewed as a whole, these additional claim elements do not provide meaningful limitations to transform the abstract idea into a practical application of the abstract idea or that the ordered combination amounts to significantly more than the abstract idea itself. Further, the courts have found the presentation of data to be a well-understood, routine, conventional activity, OIP Techs., 788 F.3d at 1362-63, 115 USPQ2d at 1092-93 (see MPEP 2106.05(d)).
The dependent claims (28-36 and 38-45) are directed to the same abstract idea as recited in the independent claims, and merely incorporate additional details that narrow the abstract idea via additional details of the abstract idea. For example claims 28-36 “further comprising determining a single usage value associated with the computing system configuration based on a usage of the plurality of computing resources of the computing system configuration associated with an account executing a second workload across the plurality of computing resources over a period of time, the single usage value corresponding to a total work unit per unit of time consumption of the computing system configuration over the period of time; further comprising determining an available work units per unit of time based at least in part on the work output potential, wherein the available work units per unit of time comprises a capability for additional workload of the computing system configuration as the work output potential; further comprising determining a capacity estimate based at least in part on the available work units per unit of time and the single usage value, wherein the capacity estimate corresponds to a total available quantity of work units per unit of time available over the period of time for the computing system configuration; receiving a cost for the computing system, wherein the cost is either a total cost for the plurality of computing resources over the period of time or costs per units of time over the period of time; anddetermining a work unit per unit of time cost corresponding to a cost for the available work units per unit of time based at least in part on the cost of the computing system and the available work units per unit of time; determining that a price of one or more resource suppliers is less than the work unit per unit of time cost; andresponsive to determining that the price of the one or more resource suppliers is less than the work unit per unit of time cost, automatically requesting physical computing resources at the price from the one or more resource suppliers; determining that a bid price from one or more accounts is more than the work unit per unit of time cost; andresponsive to determining that the bid price of the one or more accounts is more than the work unit per unit of time cost, transacting and automatically delivering computing resources at the bid price from the one or more accounts; wherein the computing resources are transacted and automatically delivered in further response to a transaction threshold value defining a lower bound margin for comparing the bid price and the work unit per unit of time cost; wherein the computing system is a first computing system having the computing system configuration and the second workload is performed on a second computing system having the computing system configuration, wherein the first computing system and the second computing system are separate computing systems; receiving a cost for the computing system, wherein the cost is either a total cost for the plurality of computing resources over the period of time or costs per units of time over the period of time; and determining a work unit potential per unit of time cost corresponding to a cost for the available work units per unit of time based at least in part on the cost of the computing system and work output potential for the computing system”, without additional elements that integrate the abstract idea into a practical application and without additional elements that amount to significantly more to the claims. The remaining dependent claims (38-45) recite the system for performing the method of claims 28-35. Thus, the same rationale/analysis is applied. Thus, all dependent claims have been fully considered, however, these claims are similarly directed to the abstract idea itself, without integrating it into a practical application and with, at most, a general purpose computer that serves to tie the idea to a particular technological environment, which does not add significantly more to the claims.
The ordered combination of elements in the dependent claims (including the limitations inherited from the parent claim(s)) add nothing that is not already present as when the elements are 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. Accordingly, the subject matter encompassed by the dependent claims fails to amount to significantly more than the abstract idea itself.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 27-46 rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. The following limitations: “the first workload being a benchmark workload executed across the plurality of computing resources over a period of time” The spec does not describe running a benchmark workload. Benchmark in the spec is used for costs to the prices offered.“determining a performance metric for each of the plurality of computing resources based at least in part on the execution of the first workload” The spec does not describe tying any metric of the execution of the workload. “the work output potential defining a system-level capability of the computing system and being a common unit of measure.” System level capacity is not mentioned in the spec.“a transaction threshold value defining a lower bound margin for comparing the bid price and the work unit per unit of time cost”Transaction threshold, lower bound, and margin are mentioned in the spec. “wherein the first computing system and the second computing system are separate computing systems”Neither the second or separate computing system appears in the spec.
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 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.
Claim(s) 27 and 37 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by U.S. PGPub 20150371355 (hereinafter “Chen”) et al.
As per claim 1, Chen teaches a method comprising:
executing a first workload on a computing system, the computing system having a computing system configuration comprising a plurality of computing resources, the first workload being a benchmark workload executed across the plurality of computing resources over a period of time; 0077-0078: “An example of normalizing the composite scores and assigning GPUs 316 to VMs 235 is next described. In this example, host computing device 100 has three GPUs 316: GPU1, GPU2, and GPU3. Exemplary GPUs and processing capabilities include NV Strong GPU (960 thread processors, 1500 megahertz processor, 16 gigabytes memory), AMD GPU (320 unified shader cores, 16 texture mapping units, 16 render output units, 688 megahertz processor, 2 gigabytes memory), and Intel Integrated GPU (16 execution units, 650 megahertz, 512 megabytes memory). Each of GPU1, GPU2, and GPU3 is benchmarked to produce an initial composite score. For example, using systems such as a 3DMark06 tool and/or a CINEBENCH brand tool analyzing performance of varied quantities of VMs 235 as described with reference to FIG. 6, initial composite scores of 900, 500, and 100 for GPU1, GPU2, and GPU3 are generated. Other methods for scoring GPUs 316 are contemplated, however. Based on various factors such as described with reference to FIG. 6 (e.g., API compatibility), the initial composite scores are adjusted to the values shown in Table 2 below…0070: Timeouts occur when GPU 316 is not able to complete graphical commands 302 within a given time period. For example, for a given set of graphics commands 302, host computing device 100 counts the quantity of timeouts occurring on GPU 316 during the test execution at 602.”
determining a performance metric for each of the plurality of computing resources based at least in part on the execution of the first workload, 0069: “ In contrast to some existing systems in which a GPU is given a benchmark score based on its execution of graphics commands from a single process (or execution of a single complex graphics command), aspects of the disclosure contemplate generating an initial benchmark composite score based on performance by each GPU 316 of graphics commands 302 from differing quantities of VMs 235.”
wherein each performance metric comprises a value corresponding to a performance of a computing resource of the plurality of computing resources while executing the first workload; 0078: “Each of GPU1, GPU2, and GPU3 is benchmarked to produce an initial composite score. For example, using systems such as a 3DMark06 tool and/or a CINEBENCH brand tool analyzing performance of varied quantities of VMs 235 as described with reference to FIG. 6, initial composite scores of 900, 500, and 100 for GPU1, GPU2, and GPU3 are generated. Other methods for scoring GPUs 316 are contemplated, however. Based on various factors such as described with reference to FIG. 6 (e.g., API compatibility), the initial composite scores are adjusted to the values shown in Table 2 below.”
and determining a work output potential for the computing system by normalizing and aggregating the performance metrics for each computing resource of the plurality of computing resources, the work output potential defining a system-level capability of the computing system and being a common unit of measure;0075-0085: “At 608, the composite scores for the GPUs are normalized relative to each other. Normalizing includes adjusting the composite scores relative to a total processing capability or power available to host computing device 100 (e.g., from all GPUs 316 available to host computing device 100)… Equation (2) sets 1/1000.sup.th of the computing power of GPU1 to be equivalent to 1/400.sup.th of the computing power of GPU2, which is equivalent to 1/150.sup.th of the computing power of GPU3. In this manner, GPU1 has a 1000 GBCU available, GPU2 has 400 GBCU available, and GPU3 has 150 GBCU available… GPU1 has a normalized composite score of 1000 GBCU, GPU2 has a normalized composite score of 400 GBCU, and GPU3 has a normalized composite score of 150 GBCU.”
Claim 37 is the system for performing the method of claim 27 above. Because art teaches the system and method the same art and rationale are applied.
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 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.
Claims 28-31, 35-36, 38-41, and 45-46 are rejected under 35 U.S.C. 103 as being unpatentable over U.S. PGPub 20150371355 (hereinafter “Chen”) et al., in view of U.S. PGPub 20110219118 to (hereinafter “Cowan”) et al.
As per claim 28, Chen teaches all the limitations of claim 27.
Chen may not explicitly teach the following. However, Cowan teaches:
further comprising determining a single usage value associated with the computing system configuration based on a usage of the plurality of computing resources of the computing system configuration associated with an account executing a second workload across the plurality of computing resources over a period of time, the single usage value corresponding to a total work unit per unit of time consumption of the computing system configuration over the period of time; 0022-0023: “ the platform measures or monitors six metrics commonly used in software computing (e.g. MHz for CPU or processor usage, Mbytes for memory usage, Kbytes/sec for I/O, Kbytes/sec for Local Area Network (LAN) usage, Kbits/sec for Wide Area Network (WAN) usage and Gbytes for storage usage) and applies appropriate weighting and conversion factors to each consumption value to derive a dimensionless quantity (termed herein a Workload Allocation Cube (WAC) unit or value) that can be used as a universal, or common, metric. As used herein, a Workload Allocation Cube (WAC) is itself a universal metric that provides the number of resource units equivalent to a single WAC unit for each of the six monitored resource types. A WAC can be applied agnostically to any system and application. The metrics can also take other environmental or controllable variables into account, such as real estate cost, tax jurisdiction and electrical power. The WAC unit is effectively a metric that makes diverse computing resources comparable. The total WAC units consumed by a user determine the cost charged for the use of the computing services. The number of WAC units used by an instance of an application, also termed herein a "workload", is determined by monitoring the six metrics. The information can be gathered periodically, e.g. every 20 sec. or every 5 min, and averaged by the hour in order to generate a number of WACs that accurately represent the usage of the services provided…0033: The consumption engine 108 then generates the total resource consumption by adding the units consumed by the application in the predetermined time period for each computing resource type (step 310), and stores this information in the usage data store 107. As will be clear to those of skill in the art, the resource data and usage data stores 105 and 107, shown separately here, can be implemented as a single database accessible to all the engines.”
Chen and Cowan are deemed to be analogous references as they are reasonably pertinent to each other and directed towards measuring, collecting, and analyzing information with a series of inputs to solve similar problems in the similar environments. Before the effective filing date of the claimed invention, it would have been obvious for one of ordinary skill in the art to have modified Chen with the aforementioned teachings from Cowan with a reasonable expectation of success, by adding steps that allow the software to associate and determine data with the motivation to more efficiently and accurately organize and analyze data [Cowan 0022].
As per claim 29, Chen teaches all the limitations of claim 28.
In addition, Chen teaches:
based at least in part on the work output potential, wherein the available work units per unit of time comprises a capability for additional workload of the computing system configuration as the work output potential; 0066: “Some examples contemplate host computing device 100 periodically or intermittently monitoring utilization of one or more of GPUs 316 to identify unused processing capability of GPUs 316, or overload conditions. For example, scheduler 306 may poll the GPUs 316 and GPU driver 307 to determine a real-time load on GPUs 316. Host computing device 100 may dynamically re-assign GPUs 316 to VMs 235 based on the monitored GPU 316 utilization to load balance GPUs 316.”
Chen may not explicitly teach the following. However, Cowan teaches:
further comprising determining an available work units per unit of time…; 0023: “The total WAC units consumed by a user determine the cost charged for the use of the computing services. The number of WAC units used by an instance of an application, also termed herein a "workload", is determined by monitoring the six metrics. The information can be gathered periodically, e.g. every 20 sec. or every 5 min, and averaged by the hour in order to generate a number of WACs that accurately represent the usage of the services provided…0066: The consumption engine 108 then generates the total resource consumption by adding the units consumed by the application in the predetermined time period for each computing resource type (step 310), and stores this information in the usage data store 107. As will be clear to those of skill in the art, the resource data and usage data stores 105 and 107, shown separately here, can be implemented as a single database accessible to all the engines.”
Chen and Cowan are deemed to be analogous references as they are reasonably pertinent to each other and directed towards measuring, collecting, and analyzing information with a series of inputs to solve similar problems in the similar environments. Before the effective filing date of the claimed invention, it would have been obvious for one of ordinary skill in the art to have modified Chen with the aforementioned teachings from Cowan with a reasonable expectation of success, by adding steps that allow the software to associate and determine data with the motivation to more efficiently and accurately organize and analyze data [Cowan 0066].
As per claim 30, Chen teaches all the limitations of claim 29.
In addition, Chen teaches:
further comprising determining a capacity estimate based at least in part on the available work units per unit of time and the single usage value, wherein the capacity estimate corresponds to a total available quantity of work units per unit of time available over the period of time for the computing system configuration; 0086: “ In the example of FIG. 7, the VMs are assigned to the GPUs such that each GPU is near maximum capacity (e.g., the sum of the allocated quantum for the VMs assigned to a GPU equals the composite score for that GPU). In particular, GPU2 with a composite score of 400 GBCU is assigned VM9 which has an allocated quantum of 400 GBCU, and GPU3 with a composite score of 150 GBCU is assigned VM7 which has an allocated quantum of 150 GBCU. All other VMs are assigned to GPU1 which has a composite score of 1000 GBCU. The list of VMs 235 with their allocated quantum 304 and assigned GPU 420 is sent to GPU driver 307.”
As per claim 31, Chen teaches all the limitations of claim 30.
Chen may not explicitly teach the following. However, Cowan teaches:
receiving a cost for the computing system, wherein the cost is either a total cost for the plurality of computing resources over the period of time or costs per units of time over the period of time; and determining a work unit per unit of time cost corresponding to a cost for the available work units per unit of time based at least in part on the cost of the computing system and the available work units per unit of time; 0031-0032: “ a server may have an expected lifespan of two years, whereas the network infrastructure provider may wish to recoup the cost of a switch in 9 months, thus it can be assigned a lifespan of 9 months. In either case, the adjusted cost can be divided by the lifespan to determine a cost/predetermined time unit (e.g. $/month, $/day or $/hour) to deploy and operate each of the plurality of computing resource types (step 300)… The node analysis engine then applies a cost conversion factor to each adjusted cost (step 302). The cost conversion factor is an arbitrary factor determined by the utility computing platform operator as a base price/WAC unit. For example, a cost conversion factor of $0.15/hour-WAC can be used.”
Chen and Cowan are deemed to be analogous references as they are reasonably pertinent to each other and directed towards measuring, collecting, and analyzing information with a series of inputs to solve similar problems in the similar environments. Before the effective filing date of the claimed invention, it would have been obvious for one of ordinary skill in the art to have modified Chen with the aforementioned teachings from Cowan with a reasonable expectation of success, by adding steps that allow the software to associate and determine data with the motivation to more efficiently and accurately organize and analyze data [Cowan 0032].
As per claim 35, Chen teaches all the limitations of claim 28.
Chen may not explicitly teach the following. However, Cowan teaches:
wherein the computing system is a first computing system having the computing system configuration and the second workload is performed on a second computing system having the computing system configuration, wherein the first computing system and the second computing system are separate computing systems; 0032: “The node analysis engine then applies a cost conversion factor to each adjusted cost (step 302). The cost conversion factor is an arbitrary factor determined by the utility computing platform operator as a base price/WAC unit. For example, a cost conversion factor of $0.15/hour-WAC can be used. Dividing the cost conversion factor by the adjusted cost/time, determines the number of resource units comprising a quantum or unit of the universal metric (e.g. for CPU: MHz/WAC; for storage GB/WAC). An average number of resource units per quantum of the universal metric can then be generated by averaging the number of resource units over the plurality of network infrastructure nodes for each resource type (step 304). These averages, as well as the individual data for each node, can be stored in the resource data storage 105.”
Chen and Cowan are deemed to be analogous references as they are reasonably pertinent to each other and directed towards measuring, collecting, and analyzing information with a series of inputs to solve similar problems in the similar environments. Before the effective filing date of the claimed invention, it would have been obvious for one of ordinary skill in the art to have modified Chen with the aforementioned teachings from Cowan with a reasonable expectation of success, by adding steps that allow the software to associate and determine data with the motivation to more efficiently and accurately organize and analyze data [Cowan 0032].
As per claim 36, Chen teaches all the limitations of claim 30.
Chen may not explicitly teach the following. However, Cowan teaches:
receiving a cost for the computing system, wherein the cost is either a total cost for the plurality of computing resources over the period of time or costs per units of time over the period of time; and determining a work unit potential per unit of time cost corresponding to a cost for the available work units per unit of time based at least in part on the cost of the computing system and work output potential for the computing system;
0031-0032: “ a server may have an expected lifespan of two years, whereas the network infrastructure provider may wish to recoup the cost of a switch in 9 months, thus it can be assigned a lifespan of 9 months. In either case, the adjusted cost can be divided by the lifespan to determine a cost/predetermined time unit (e.g. $/month, $/day or $/hour) to deploy and operate each of the plurality of computing resource types (step 300)… The node analysis engine then applies a cost conversion factor to each adjusted cost (step 302). The cost conversion factor is an arbitrary factor determined by the utility computing platform operator as a base price/WAC unit. For example, a cost conversion factor of $0.15/hour-WAC can be used.”
Chen and Cowan are deemed to be analogous references as they are reasonably pertinent to each other and directed towards measuring, collecting, and analyzing information with a series of inputs to solve similar problems in the similar environments. Before the effective filing date of the claimed invention, it would have been obvious for one of ordinary skill in the art to have modified Chen with the aforementioned teachings from Cowan with a reasonable expectation of success, by adding steps that allow the software to associate and determine data with the motivation to more efficiently and accurately organize and analyze data [Cowan 0032].
Claims 38-41 and 45-46 are the system claims for performing the method of claims 28-31 and 35-36 above. Because art teaches the system and method the same art and rationale are applied.
Claims 32-34 and 42-44 are rejected under 35 U.S.C. 103 as being unpatentable over U.S. PGPub 20150371355 (hereinafter “Chen”) et al., in view of U.S. PGPub 20110219118 to (hereinafter “Cowan”) et al., in further view of U.S. PGPub 20180060894 (hereinafter “Beveridge”) et al.
As per claim 32, Chen and Cowan teach all the limitations of claim 30.
Chen and Cowan may not explicitly teach the following. However, Beveridge teach:
determining that a price of one or more resource suppliers is less than the work unit per unit of time cost; and responsive to determining that the price of the one or more resource suppliers is less than the work unit per unit of time cost, automatically requesting physical computing resources at the price from the one or more resource suppliers; 0122: “FIG. 24 illustrates an example buy policy that is furnished by a resource consumer to the cloud-exchange system for use by the cloud-exchange system to configure a distributed search for a resource provider to host a virtual machine. The buy policy 2402 is an example of a policy discussed above with reference to FIG. 15C. The buy policy comprises a set of attribute/value pairs, including attribute/value pair 2404 with attribute max_price_over_lease_per_day 2406 and value $16.00 2408. This attribute/value pair represents a constraint for the auction, or distributed search. The constraint specifies that the resource consumer is willing to pay only as much as $16 per day to a resource provider for hosting the one or more virtual machines for which the resource consumer is seeking bids…0041: the aggregate computational efficiency is much higher, when leasing transactions are automatically facilitated by the resource-exchange system, than when no resource exchanges are possible. In the example discussed above with reference to FIGS. 2A-E, a larger fraction of the aggregate computational resources of the data centers are used because additional tasks are being executed by the 10 additional servers.”
Chen, Cowan, and Beveridge are deemed to be analogous references as they are reasonably pertinent to each other and directed towards measuring, collecting, and analyzing information with a series of inputs to solve similar problems in the similar environments. Before the effective filing date of the claimed invention, it would have been obvious for one of ordinary skill in the art to have modified Chen and Cowan with the aforementioned teachings from Beveridge with a reasonable expectation of success, by adding steps that allow the software to associate and determine data with the motivation to more efficiently and accurately organize and analyze data [Beveridge 0041].
As per claim 33, Chen and Cowan teach teaches all the limitations of claim 31.
Chen and Cowan may not explicitly teach the following. However, Beveridge teach:
determining that a bid price from one or more accounts is more than the work unit per unit of time cost; and responsive to determining that the bid price of the one or more accounts is more than the work unit per unit of time cost, transacting and automatically delivering computing resources at the bid price from the one or more accounts; 0134: “ In step 2012i, the cost per unit of time that the resource provider needs to charge for consumption of the resource is computed as the cost value stored in the descriptor, which represents the actual power, maintenance, and amortization costs of the resource to the resource provider, plus the margin desired by the resource provider, with the sum multiplied by the value stored in the local variable factor…0121: the bid requests are automatically generated by the cloud-exchange engine on behalf of resource providers, with the cloud-exchange engine using stored information previously furnished by the resource providers to generate bids.”
Chen, Cowan, and Beveridge are deemed to be analogous references as they are reasonably pertinent to each other and directed towards measuring, collecting, and analyzing information with a series of inputs to solve similar problems in the similar environments. Before the effective filing date of the claimed invention, it would have been obvious for one of ordinary skill in the art to have modified Chen and Cowan with the aforementioned teachings from Beveridge with a reasonable expectation of success, by adding steps that allow the software to associate and determine data with the motivation to more efficiently and accurately organize and analyze data [Beveridge 0041].
As per claim 34, Chen, Cowan, and Beveridge teach all the limitations of claim 33.
Chen and Cowan may not explicitly teach the following. However, Beveridge teach:
wherein the computing resources are transacted and automatically delivered in further response to a transaction threshold value defining a lower bound margin for comparing the bid price and the work unit per unit of time cost; 0127: “ This data includes: (1) a resource name 2604; (2) a resource-type identifier 2605; (3) a weight 2606 used in price computations; (4) a total-capacity-to-spare-capacity ratio 2607; (5) three total-capacity-two-spare-capacity thresholds 2608-2610; (6) a margin 2611…0134: plus the margin desired by the resource provider, with the sum multiplied by the value stored in the local variable factor.”
Chen, Cowan, and Beveridge are deemed to be analogous references as they are reasonably pertinent to each other and directed towards measuring, collecting, and analyzing information with a series of inputs to solve similar problems in the similar environments. Before the effective filing date of the claimed invention, it would have been obvious for one of ordinary skill in the art to have modified Chen and Cowan with the aforementioned teachings from Beveridge with a reasonable expectation of success, by adding steps that allow the software to associate and determine data with the motivation to more efficiently and accurately organize and analyze data [Beveridge 0041].
Claims 42-44 are the system claims for performing the method of claims 32-34 above. Because art teaches the system and method the same art and rationale are applied.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure:
Haynes; Michael N.. Systems, Devices, And/or Methods For Managing Information, .U.S. PGPub 20150363481Certain exemplary embodiments can provide a system, machine, device, manufacture, circuit, composition of matter, and/or user interface adapted for and/or resulting from, and/or a method and/or machine-readable medium comprising machine-implementable instructions for, activities that can comprise and/or relate to, automatically generating a story regarding a predetermined topic from a plurality of assertions.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Arif Ullah, whose telephone number is (571) 270-0161. The examiner can normally be reached from Monday to Friday between 9 AM and 5:30 PM.
If any attempt to reach the examiner by telephone is unsuccessful, the examiner’s supervisor, Beth Boswell, can be reached at (571) 272-6737. The fax telephone numbers for this group are either (571) 273-8300 or (703) 872-9326 (for official communications including After Final communications labeled “Box AF”)./Arif Ullah/Primary Examiner, Art Unit 3625
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