Amazon Technologies, Inc.
[2021] APO 7
•16 February 2021
IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
Amazon Technologies, Inc. [2021] APO 7
Patent Application: 2018204629
Title:ROLLING RESOURCE CREDITS FOR SCHEDULING OF VIRTUAL COMPUTER RESOURCES
Patent Applicant: Amazon Technologies, Inc.
Delegate:Mr Kevin Restrick
Decision Date: 16 February 2021
Hearing Date: Written submissions filed on 11 September 2020
Catchwords: PATENTS - standard patent – examiner objection – manner of manufacture – substance of the invention resides in the rules for a scheme where in exchange for resource credits work requests are scheduled on computing resources based on business rules that define a baseline guaranteed level of computing service and a burst level of performance – all claims lack a manner of manufacture – no patentable subject matter in application – application refused
Representation: Phillips Ormonde Fitzpatrick
IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
Patent Application: 2018204629
Title:ROLLING RESOURCE CREDITS FOR SCHEDULING OF VIRTUAL COMPUTER RESOURCES
Patent Applicant: Amazon Technologies, Inc.
Date of Decision: 16 February 2021
DECISION
The claims of the application, as proposed to be amended, do not define a manner of manufacture. Moreover, there is nothing of substance in the body of the specification from which valid claims could be drafted to overcome this finding. The application is refused.
REASONS FOR DECISION
Background
1.The present matter concerns patent application 2018204629 (“the application”) by Amazon Technologies, Inc. (“the applicant”). The applicant filed the application on 26 June 2018 as a divisional application of 2015279996 (“the parent”), itself a national phase entry of PCT/US2015/037443 consequently providing the application with a priority date of 27 June 2014.
2.The parent has been the subject of four examination reports prior to lapsing for failure to gain acceptance within the prescribed time period. The first report on the parent raised objections for manner of manufacture and inventive step. The latter was overcome by amendment. The manner of manufacture objection was maintained through three further adverse reports until the parent lapsed.
3.The application has been the subject of two examination reports. Despite the applicant providing an anticipatory declaration from one of the inventors (“the Singh declaration”), the objection in the first report was that the claimed invention is not for a manner of manufacture. Despite responsive submissions from the applicant and a statement of proposed amendments to amend the description and the claims to bring them in line with claims being prosecuted in the US and Europe the examiner maintained the manner of manufacture objection in a second report.
4.On 19 August 2020 the applicant wrote to the Commissioner requesting to be heard in relation to the matter in the second report, namely the outstanding objection that the claimed invention was not to a manner of manufacture.
5.On 25 August 2020 the Commissioner wrote to the Applicant indicating that the hearing would be conducted by way of written submissions due to be filed by 25 September 2020. The applicant filed the submissions in this regard on 11 September 2020 (“the applicant’s submissions”).
6.While the final date for acceptance of the application was 23 August 2020, patent subregulation 13.4(1)(g) may be available to extend the time for gaining acceptance to 3 months from the date of the present decision.
The invention as described
7.The application is directed to the field of computer resource virtualization. Providers, such as the present applicant manage large-scale computing resources that can be accessed on demand by their many customers via virtual machines. This allows various computing resources to be efficiently and securely shared by multiple customers.
8.The term virtual computer instances or resource is used to describe how a customer uses a virtual instance to access a managed physical computer resource, including, but not limited to, processing resources such as CPU cores, communication or networking resources such as network interface card functions, and cloud based storage resources.
9.A broad summary of the underlying technology is provided at paragraph [0002] in the application:
“For example, virtualization technologies may allow a single physical computing machine to be shared among multiple users by providing each user with one or more virtual machines hosted by the single physical computing machine, with each such virtual machine being a software simulation acting as a distinct logical computing system that provides users with the illusion that they are the sole operators and administrators of a given hardware computing resource, while also providing application isolation and security among the various virtual machines.”
10.The background section of the specification at paragraph [0003] describes the problem that when many customers use a virtual instance of the computing resource there can arise contention and conflict when different customers rely on the same physical computing resource. Similarly, the specification at paragraph [0018] identifies that different clients may have different resource demands at different times to one another and describes the particular problem where some clients' workloads are not predictable and may not utilize fixed resources efficiently.
11.The application approaches this problem by describing an approach to managing rolling resource credits and scheduling the virtual computing resources. Resource credits (money from the customers) are accumulated for individual virtual compute instances. There is a steady state payment component that provides a guaranteed baseline utilisation of the computing resource and a component that accumulates. When a virtual compute instance needs to perform work at a higher performance, then some of the accumulated resource credits are applied for the work. When a virtual compute instance is using less than its share of resources (e.g., little or no work is being performed), then the credits may be saved and used for a subsequent task. A limit on the rolling resource credit balance is provided to stop one compute instance from amassing enough resource credits to block the performance of work requests for other instances.
12.FIG. 1 of the specification (reproduced below) illustrates the applicant’s approach to providing a rolling resource credit balance for a virtual compute instance. The customer purchases from the provider a resource credit. In the figure the customer’s initial resource balance is 30 credits. The customer purchases resource credits in an ongoing manner resulting in their credit accumulating until reaching a rolling resource credit balance limit of 120 credits. At time period 5 the customer’s demand on the virtual computer resource commences. Resource credits are then deducted and used to provide full utilisation of a resource for a particular time. Essentially the described invention provides burst performance until the accumulated resource credit balance is depleted. A limit on the rolling resource credit balance, in this example of 120 credits, is in place.
13.By consuming resource credits a virtual computing instance is able to utilise sufficient resources to obtain a high performance when needed to perform the task. Once the computing task is no longer needed the resource credits continue to accumulate ready for the next heavy usage period.
14.The specification also describes a guaranteed baseline allocation of computing resource as an amount of time the virtual compute instance can use the resource without spending any credits in the credit resource balance. This means that the virtual compute instance is guaranteed an amount of allocation regardless of the current resource credit balance for the virtual compute instance. The applicant considers this important because it ensures the virtual compute instance will not face a situation where there is no credit allocation, for example because an earlier “burst” performance has consumed all the resource credits in a period.
The claims
15.During the course of examination a proposed amendment dated 8 April 2020 was made to the application. After the proposed amendment the application comprises 15 claims. Claims 1 and 10 are independent claims directed to a method and system respectively.
16.Claim 1 reads as follows:
A method, comprising:
performing, by one or more computing systems:receiving, at a virtualization manager for a virtualization host, a work request for utilizing one or more virtual computer resources submitted by a virtual compute instance hosted as part of performing an application for a client that has reserved the virtual compute instance at the virtualization host;
automatically adding a same number of resource credits for respective consecutive time periods, at a resource credit accumulation rate set for the one or more virtual computer resources, to a current resource credit balance for the virtual compute instance respective to the one or more virtual computer resources, wherein:
the current resource credit balance comprises a set of current resource credits that, when used, increase processing time of the one or more virtual computer resources for a time period in excess of a baseline amount of processing time provided by a baseline utilization guarantee; and
at least one current resource credit of the current resource credit balance was automatically added to the current resource credit balance from a particular time period prior to the current time period, wherein during the particular time period, the virtualization host had performed one or more prior work requests, submitted by the virtual compute instance as part of performing the application for the client, that utilized a prior amount not in excess of the baseline amount of processing time provided by the baseline utilization guarantee;
determining that a current amount of processing time to perform the work request submitted by the virtual compute instance as part of performing the application for the client, is in excess of the baseline amount provided by the baseline utilization guarantee, and responsive to the determination:
using the at least one current resource credit, automatically added for the particular time period prior to the current time period, from the current resource credit balance to increase processing time of the respective one or more computer resources for the current time period in excess of the baseline amount of processing time provided by the baseline utilization guarantee for the virtual compute instance;generating one or more scheduling instructions in order to schedule the work request for performance at one or more physical computer resources implemented as part of the virtualization host according to the use of the at least one resource credit, wherein the one or more scheduling instructions are generated based, at least in part, on applying resource credits of the current resource credit balance to allocate increased utilization of the one or more physical computer resources implemented as part of the virtualization host for the current time period beyond an allocation corresponding to the baseline utilization guarantee for the virtual compute instance, wherein the baseline utilization guarantee guarantees, for each of the respective consecutive time periods, a baseline utilization of the one or more compute resources for the virtual compute instance, wherein each of the one or more resource credits applied to the work request correspondingly increase utilization of the one or more physical computer resources for the current time period beyond the baseline utilization guarantee;
performing the work request utilizing the one or more physical computer resources according to the one or more scheduling instructions;
and updating the current resource credit balance for the one virtual compute instance to deduct the at least one resource credit applied to perform the work request.
17.Claim 10 is a system claim having the following preamble:
A system including one or more processors coupled to one or more nontransitory, computer-readable storage media, storing program instructions that when executed by the one or more processors cause the system to:…
The remaining features of the claim are identical to those following the preamble of the independent claim 1.
The remaining objections
18.As noted, the only objection outstanding is that the claims are not for a manner of manufacture.
19.The objection that the claims are not for a manner of manufacture has been pursued through the four reports of the parent and the two reports for the application. The reasoning presented by the Examiners across the six reports has consistently been that the claimed invention is directed to solving an administrative problem rather than a problem technical in nature. The examiner has maintained that the claimed invention does not involve any invention or ingenuity in any program or operation of a computer, or implementation by a computer to operate the method. Where there is a technical aspect to the claimed invention, the examiner has stated that it is achieved utilising well-known generic implementations of computers and/or computer generic functionalities.
Applicable Law
20.The application is governed by the Patents Act 1990 (“the Act”) as amended by the Intellectual Property Laws Amendment (Raising the Bar) Act 2012 (“the Raising the Bar Act”).
21.The standard of proof that applies is the balance of probabilities (subsection 49(1)). I must accept the application if satisfied on the balance of probabilities that the application complies with the Act. If I am not so satisfied, then I can refuse the application pursuant to subsection 49(2).
22.The statutory basis for manner of manufacture is found at s18(1)(a) of the Act which states:
“(1) Subject to subsection (2), an invention is a patentable invention for the purposes of a standard patent if the invention, so far as claimed in any claim:
(a) is a manner of manufacture within the meaning of section 6 of the Statute of Monopolies; and …”
23.In National Research Development Corporation v Commissioner of Patents, [1959] HCA 67, (1959) 102 CLR 252 (“NRDC”), the High Court provided a statement of the law in this regard. At page 275:-
“… a process, to fall within the limits of patentability which the context of the Statute of Monopolies has supplied, must be one that offers some advantage which is material, in the sense that the process belongs to a useful art as distinct from a fine art …- that its value to the country is in the field of economic endeavour”.
24.At page 276, the High Court in NRDC further observed that what is meant by a “product” in relation to a process is only something in which a new and useful effect may be observed. More specifically:-
“Sufficient authority has been cited to show that the ‘something’ need not be a ‘thing’ in the sense of an article; it may be any physical phenomenon in which the effect, be it creation or merely alteration, may be observed”.
25.The High Court though was not laying down a precise formulation that can be applied unthinkingly and that a case by case approach should be taken. In D’Arcy v Myriad Genetics Inc. [2015] HCA 35 (“Myriad”), at [23]:-
“This Court in NRDC did not prescribe a well-defined pathway for the development of the concept of ‘manner of manufacture’ in its application to unimagined technologies with unimagined characteristics and implications. Rather, it authorised a case-by-case methodology.”
26.In Myriad, Gageler and Nettle JJ. stressed the importance of having regard to the substance of the claimed invention, not simply the form of the claim. [144]:-
“Whatever words have been used, the matter must be looked at as one of substance and effect must be given to the true nature of the claim.”
27.The principle of identifying the substance of the invention when determining whether a computer implemented method is patentable was discussed in multiple decisions. For instance, Commissioner of Patents v RPL Central Pty. Ltd. [2015] FCAFC 177 (“RPL”) at [96] – [98] :
“A claimed invention must be examined to ascertain whether it is in substance a scheme or plan or whether it can broadly be described as an improvement in computer technology. The basis for the analysis starts with the fact that a business method, or mere scheme, is not, per se, patentable. The fact that it is a scheme or business method does not exclude it from properly being the subject of letters patent, but it must be more than that. There must be more than an abstract idea; it must involve the creation of an artificial state of affairs where the computer is integral to the invention, rather than a mere tool in which the invention is performed. Where the claimed invention is to a computerised business method, the invention must lie in that computerisation. It is not a patentable invention simply to ‘put’ a business method ‘into’ a computer to implement the business method using the computer for its well- known and understood functions.
Is the mere implementation of an abstract idea in a well-known machine sufficient to render patentable subject matter? Is the artificial effect that arises, because information is stored in RAM and there is communication over the Internet or wifi, sufficient? Does any physical effect give rise to a manner of manufacture? Are the mere presence of an artificial effect and economic utility, without more, sufficient to determine manner of manufacture?
It is not a question of stating precise guidelines but of deciding, in each case, whether the claimed invention, as a matter of substance not form, is properly the subject of a patent.”
28.RPL went further with regard to the role the computer plays stating [107]:
“Simply putting a business method or scheme into a computer is not patentable unless there is an invention in the way in which the computer carries out the scheme or method.”
29.Similarly, recognising that there needs to be an improvement in the computer per se for an invention to be a manner of manufacture was brought up in in Research Affiliates LLC v Commissioner of Patents [2014] FCAFC 150 (“Research Affiliates”). The Full Court of the Federal Court noted a distinction between mere implementation of an abstract idea in a computer and implementation of the idea in a computer that created an improvement in the computer. At [103]:-
“… there is a distinction, between mere implementation of an abstract idea in a computer and implementation of an abstract idea in a computer that creates an improvement in the computer”.
30.Thus in relation to computer implemented inventions it is necessary to look at the invention as a matter of substance, rather than as a matter of form. If the invention is to a matter of substance, then it follows that it is of a manner of manufacture as defined by previous authorities.
31.The Courts have been consistent in their approach to ensuring that where a method is claimed, that consideration is not just given to the words of the method but that there are physical computing integers involved and that it is the combination of interworking computing integers that needs to be considered when working out the substance of the invention. At RPL [112]:
“Recognising that the claims are to a method and system comprising a combination of integers, it is necessary to understand where the inventiveness or ingenuity is said to lie. Turning to the integers of the invention as set out at [36] and [38] and summarised at [37] and [39] above, it is apparent that, other than the integers providing that the computer processes the criteria to generate corresponding questions and presents those questions to the user, the method does not include any steps that are outside the normal use of a computer. ”
32.The recent Full Federal Court decision in Commissioner of Patents v Rokt Pte Ltd (Rokt) [2020] FCAFC 86 and Encompass Corporation Pty Ltd v InfoTrack Pty Ltd [2019] (Encompass) FCAFC 161 confirmed and applied the principles from Research Affiliates and RPL.
33.RPL [99] to [107] and Research Affiliates [94] in particular provide principles that assist in determining where the substance of computer implemented inventions resides and whether that material is patentable. Conveniently these principles have been summarised by the Delegate in Aristocrat Technologies Australia Pty. Ltd. (Aristocrat) [2016] APO 49 at [35]:
“I conclude that it is relevant to consider a range of matters. Without seeking to be exhaustive, these include:
· there must be more than an abstract idea, mere scheme or mere intellectual information;
· is the contribution of the claimed invention technical in nature;
· does the invention solve a technical problem within the computer or outside the computer;
· does the invention result in improvement in the functioning of the computer, irrespective of the data being processed;
· does the application of the method produce a practical and useful result;
· can it be broadly described as an improvement in computer technology;
· does the method merely require generic computer implementation;
· is the computer merely an intermediary or tool for performing the method while adding nothing of substance to the idea;
· is there ingenuity in the way in which the computer is utilised;
· does the invention involve steps that are foreign to the normal use of computers; and
· does the invention lie in the generation, presentation or arrangement of intellectual information.”
I note that the Rokt and Encompass were decided after Aristocrat. However, the considerations and decision from Rokt and Encompass do not invalidate the delegate’s decision in Aristocrat and these considerations are still applicable. My consideration of the substance of the invention, below and commencing at [59], is structured around this decision.
The submissions
34.The applicant cited the relevant law from NRDC, Myriad, RPL, and Research Affiliates that I refer to above. The applicant also refers to the delegate’s summary from Aristocrat with a focus on whether a technical problem is being addressed. There appears to be nothing contentious about the appropriate principles of law that applied in this case. Neither is there anything contentious regarding the construction of the claims.
35.The focus of the applicant’s submissions are in regard to what is the substance of the invention and whether it is technical in nature. The applicant disagrees with the approach taken in the examination reports that characterise the claimed invention as a scheme and explains that the examiner has not correctly recognised the interworking relationship of the integers being claimed.
36.The applicant draws my attention to RPL [112] and [105], Rokt Pte Ltd v Commissioner of Patents [2018] FCA 1988 at [202] and [212], and Apple, Inc. [2019] APO 3 all of which emphasise that when considering the substance of the invention that the assessment should be made in a holistic manner considering the interworking relationship between the various computing integers; and not just considering the words of the claims in isolation.
37.In light of the case law that considers the substance of the invention, the applicant submits that:
“…the invention defined in claim 1 cannot be fairly characterised in such a broad statement like “a scheme for rolling resource credits for scheduling of virtual computer resources”. The statement does not identify the interworking of the many features of the claims as supported by the specification. …”
and
“…submits that the amended claims of this application are clearly technical and should not be considered as merely a scheme.”
38.The applicant goes on to provide a number of paragraphs that submit that at the very least the determination of the guaranteed minimum performance is a technical problem. Furthermore the applicant submits that problem of how to provide a guarantee that a work request is processed while providing dynamic utilisation of resources to provide flexible high performance without wasting underutilised fixed resources is a technical problem. The applicant submits that in solving the technical problem with the claimed invention creates a technical effect and in turn this is a manner of manufacture.
Manner of manufacture consideration
39.A stepped approach for assessing manner of manufacture can be summarised as construing the claim, identifying the substance of the claimed invention, and then asking whether the substance of the claim lies within established principles of what does not constitute a patentable invention.
40.As I’ve indicated above, the applicant has not disputed any construction or fundamental case law issues, and neither have I identified any further issues to address. I note that there appears to be no dispute as to the legal principles involved. Rather the area of disagreement is the substance of the invention and its characterisation. I will initially consider this issue with regards to the independent claims (claims 1 and 10) and will afterwards consider the dependent claims and any further matter that may be described but not claimed.
The claimed invention
41.The claimed invention is directed to the field of virtualization technologies where customers make use of network-based virtual computing resources. One can imagine that the applicant’s method and associated system will be processing requests of many thousands of customers. Conveniently though the claim is drafted as if a single client is making use of the virtual computing resource and as such starts with the system receiving a work request from a user. Claim 1 starts with the step:
receiving, at a virtualization manager for a virtualization host, a work request for utilizing one or more virtual computer resources submitted by a virtual compute instance hosted as part of performing an application for a client that has reserved the virtual compute instance at the virtualization host;
42.The use of the applicant’s technology is to provide customers with network-based virtual computing resources. These come in many different forms and the claim is not limited to a particular use case or computing application. For example, as described in paragraph [0025] of the specification as filed and with reference to Figure 2:
“Network-based virtual computing service 200 may include numerous data centres hosting various resource pools, such as collections of physical and/or virtualized computer servers, storage devices, networking equipment and the like, needed to implement and distribute the infrastructure and services offered by the network-based virtual computing service 200. In some embodiments, network based virtual computing service 200 may provide computing resources. These computing resources may in some embodiments be offered to clients in units called "instances," 234 such as virtual compute instances.”
43.Similarly, work requests are defined broadly and can encompass, as the specification at [0055] describes, different types of processes, tasks, or other action to be performed by the one or more CPUs of the virtual compute instance, for example to execute a particular program that runs on the virtual compute instance.
44.The generalised nature of the computer processing aspects of the description continues and is reflected in the claim language. The virtualization hosts are the computing devices that make up the virtual computing resources that are being used to provide the physical computing resources that service the customer [0038]. The virtualisation manager is described [0038] as the software module capable of instantiating and managing a number of different client-accessible compute instances. The virtualization manager handles the various interfaces between the virtual compute instances and physical computing resource such as the processors and networking devices [0042].
45.The applicant is providing the customer access to their computer resources. This access is in response to the customer having resource credits. Claim 1 continues with the step:
automatically adding a same number of resource credits for respective consecutive time periods, at a resource credit accumulation rate set for the one or more virtual computer resources, to a current resource credit balance for the virtual compute instance respective to the one or more virtual computer resources, wherein:
the current resource credit balance comprises a set of current resource credits that, when used, increase processing time of the one or more virtual computer resources for a time period in excess of a baseline amount of processing time provided by a baseline utilization guarantee; and
at least one current resource credit of the current resource credit balance was automatically added to the current resource credit balance from a particular time period prior to the current time period, wherein during the particular time period, the virtualization host had performed one or more prior work requests, submitted by the virtual compute instance as part of performing the application for the client, that utilized a prior amount not in excess of the baseline amount of processing time provided by the baseline utilization guarantee;
46.Resource credits can be considered as the currency of the claimed invention in that they are exchanged for work effort. Paragraph [0034] describes:
“…resource credits represent time an instance can spend on a physical resource doing work (e.g., processing time on a physical CPU, time utilizing a network communication channel, etc.). The more resource credits an instance has for computer resources, the more time it may spend on the physical resources executing work (increasing performance).”
whilst paragraph [0035] goes on to describe that resource credits can be a percentage utilisation of a resource. This percentage utilisation can be a value in excess of a baseline utilization guarantee:
“In various embodiments, resource credits may represent time or utilization of resources in excess of a baseline utilization guarantee. For example, a compute instance may have a baseline utilization guarantee of 10% for a resource, and thus resource credits may increase the utilization for the resource above 10%.”
47.The resource credits for a particular time period are added to a resource credit balance at a rate defined by a “resource credit accumulation rate set for the one or more virtual computer resources”. This rate is a variable whose value will depend on the virtual computer resources being accessed. Throughout the claim it is apparent that the different work requests, computing instances and operations provided by the system will have different levels of resource credit consumption for the baseline utilisation guarantees as well as a “burst” rate, for example when additional processing time is needed. An example of the range of permutations and combinations that could be at play is provided at Paragraphs 0036 & 0037 that describe a range of combinations for different configurations, for example:
“Thus, in one example, an instance type may include a specific resource credit accumulation rate and guaranteed baseline performance for processing, and another specific resource credit accumulation rate and guaranteed baseline performance rate for networking channels.”
48.The claim nor the specification as a whole provides detail as to how the value of the resource credits are calculated or established; put alternatively there is no explanation as to how the resource credits are calculated with respect to relevant computing resources, nor is there provided any correlation between resource credits, work requests, and computing resource time/utilisation. The specification does provide some detail as to how the customer obtains resource credits. The description at [0028] states:
“For example, resource management module 214 may be configured to receive a credit purchase request (e.g., an API request) and credit the virtual instance balance with the purchased credits.”
And at [0032] the specification describes an embodiment including a billing management module:
“In various embodiments, control plane 210 may implement billing management module 220. Billing management module 220 may be configured to detect billing events (e.g., specific dates, times, usages, requests for bill, or any other cause to generate a bill for a particular user account or payment account linked to user accounts).”
My understanding of the resource credits, the setting of the value by the applicant of the resource credits including defining the baseline guarantee, and the purchase of resource credits by the customer are all business decisions. They are business decisions in an analogous way that mobile phone providers set different pricing structures for mobile phones; different dollar amounts purchase different monthly contracts that in turn provide the user with a certain number of calls, texts, and data and the user can purchase additional addons as required. In short, I consider that the applicant is defining a level of service for their computing resources that the customer can access in a defined and controlled manner.
49.The claim breaks the resource credit balance into two parts. The first part are resource credits that will be used to increase the processing time of the computer resources in excess of a baseline utilisation guarantee. The baseline utilisation guarantee is a level of processing time sufficient to provide the customer with guaranteed level of work requests for the virtual compute instance. The second part of the resource credit balance is made up of resource credits added to the balance in previous time periods, where during the time period the performed work requests where not in excess of a baseline amount of processing time.
50.This approach to accumulating resource credits recognises there are periods of time when a customer’s use of the virtual computing resource is low and other times when their work request requires additional computing resources such as CPU cores to obtain high performance when needed. Paragraph 0018 explains:
“Resource credits are accumulated for individual virtual compute instances. When a virtual compute instance needs to perform work at high performance, the resource credits may be applied to the work, effectively providing full utilization of underlying physical resources for the duration of the resource credits. When a virtual compute instance is using less than its share of resources (e.g., little or no work is being performed), credits may be acquired and used for a subsequent task.”
51.As I have noted above in paragraph [48] the value of the resource credits, baseline guarantee, and computing resource time or utilisation is set by a business decision of the provider and a decision by the customer as to how much computing resource they may need. Thus, although very useful to accrue unused credits during quiet times, it is quite apparent that this part of the claim is simply performing arithmetic by adding resource credits to a balance based on a business decision by the customer when deciding what level of service they need from the computing resource based on their expected demand compared to the level of service and cost of service provided by the applicant.
52.Having taken receipt of a work request and calculated the resource credit balance, claim 1 continues with:
determining that a current amount of processing time to perform the work request submitted by the virtual compute instance as part of performing the application for the client, is in excess of the baseline amount provided by the baseline utilization guarantee, and responsive to the determination:
using the at least one current resource credit, automatically added for the particular time period prior to the current time period, from the current resource credit balance to increase processing time of the respective one or more computer resources for the current time period in excess of the baseline amount of processing time provided by the baseline utilization guarantee for the virtual compute instance;
53.This step of the claim simply compares the processing time to perform the work request with the baseline utilization guarantee, and if it is greater, then accumulated resource credits are used to increase the processing time of the computer resources that will complete the work request above its baseline utilization guarantee. It is interesting to note that there is no explicit definition of what steps are taken if the method determines that the processing time to perform the work request is within the baseline utilization guarantee. From a practical sense, one would expect the work request to be actioned as part of the baseline guarantee. Of further interest, I note that claim 1 does not define what occurs if there are insufficient resource credits available. For this we need to refer to claim 6 that explains utilization of the one or more physical computer resources is incrementally lowered to the baseline utilization.
54.This step in the method is simply an assessment of whether the customer’s demands on the computing resource are great enough that their accumulated credits need to be spent. This appears to be a business decision in that the customer will have selected what I would describe as a level of service that they require from the computing resource based on their needs for a baseline level of performance plus a prediction of their usage at busier time.
55.Having determined that resource credits are to be spent to increase the processing time of the computer resources scheduling instructions are generated. The claim defines:
generating one or more scheduling instructions in order to schedule the work request for performance at one or more physical computer resources implemented as part of the virtualization host according to the use of the at least one resource credit, wherein the one or more scheduling instructions are generated based, at least in part, on applying resource credits of the current resource credit balance to allocate increased utilization of the one or more physical computer resources implemented as part of the virtualization host for the current time period beyond an allocation corresponding to the baseline utilization guarantee for the virtual compute instance, wherein the baseline utilization guarantee guarantees, for each of the respective consecutive time periods, a baseline utilization of the one or more compute resources for the virtual compute instance, wherein each of the one or more resource credits applied to the work request correspondingly increase utilization of the one or more physical computer resources for the current time period beyond the baseline utilization guarantee;
As with the remainder of the specification the details relating to how the scheduling instructions are created is only provided in a very general manner commensurate with the fact that the computing hardware and software required to schedule the work requests is highly generic. The important aspect of this part of the claim is that the scheduling instructions results in an increased utilization of the physical computer resources for the current time period beyond an allocation corresponding to the baseline utilization guarantee for the virtual compute instance. The baseline utilization guarantee ensures the scheduler guarantees a baseline utilization of the compute resources for the virtual compute instance for consecutive time periods.
56.Paragraph [0053] provides a convenient description:
“Thus, the scheduling instructions may, in some embodiments, specify a duration at which underlying physical computer resource(s) that performs the work request for/as the virtual computer resource(s) are utilized. In some embodiments, the generated scheduling instructions may be implemented as task or hardware queues for the physical computer resource(s). In some embodiments, another scheduler or virtual computer resource driver or manager may receive the instructions as input, parameters, and/or other information upon which to direct the performance of the work request at the physical resource(s).”
And at paragraph [0058]:
“scheduling instructions may then be sent to the scheduler for the physical CPU(s), in various embodiments. Sending the scheduling instructions may include programmatically calling, invoking, or launching the scheduler to perform the work request, passing along various parameters and/or other information to schedule the performance of the work request according to the generated scheduling instructions.”
57.It is quite apparent that the hardware and software related to this step is simply performing its role that one would expect of all computing systems that initiate and complete work requests such as operation of a piece of software or accessing data in a cloud. The addition that this method step provides is that extra processing computer resource time is being scheduled; and that this extra computing time is simply based on an assessment that the work request is greater than a baseline guarantee and not on any other assessment criteria. The scheduler does provide a baseline utilization guarantee to the computing resource, but this is essentially an instruction determined by the customer determining a level of service they require in the form of computing resource utilisation.
58.The claims finishes with the following steps that are quite apparent as to what they encompass and need no further discussion:
performing the work request utilizing the one or more physical computer resources according to the one or more scheduling instructions;
and updating the current resource credit balance for the one virtual compute instance to deduct the at least one resource credit applied to perform the work request.
The substance of the invention
59.Having stepped through the invention in detail it is quite apparent that the claims and the described invention are specified with a high degree of generality in relation to the physical means of implementation of the claimed method. To some extent, this is not surprising because the precise details of the implementation of the claimed invention will vary depending upon what are the physical computing resources.
60.The specification anticipates a wide variety of usages such as described by Paragraphs [0074 – 0084]. In addition, there is general disclosure of the usage monitoring and reporting aspects of the claimed invention. For instance, the specification describes at paragraphs [0064] and [0065] recording usage metrics; paragraphs [0070 and 0071] describe heat or contention management to detect particular virtual instance usage; and a resource monitoring module is described at paragraph [0031] that implements various administrative actions to stop, heal, manage, or otherwise respond to various scenarios amongst the virtualization hosts and computing instances. My reading of the specification is that these aspects of the claimed invention are mere generic computer technology and secondary to solving the problem of efficiently utilising fixed computing resources when the client has unpredictable demands.
61.The claimed invention is directed to how work requests are scheduled to provide a guarantee that a work request is processed while providing dynamic utilisation of resources to provide flexible high performance without wasting underutilised fixed resources. Although the specification and submission describe allocating tasks so that CPU utilisation is maximised, I do not consider this to be achieved through a technical process. There is no optimisation algorithm, no artificial intelligence tool directing tasks, and there is no advanced critical path analysis function to name but a few options to schedule tasks effectively. Similarly, there is no improvement in computing hardware or architecture. The claimed invention attempts to achieve maximum usage of the computing resource by scheduling tasks through a set of business rules that define the level of computing resource that can be utilised by the customer based on a baseline guarantee with additional processing time if the work request is greater than the baseline guarantee and there are sufficient accrued resource credits. The role the computing resource plays in this scheduling process is no more than an exercise in using well known generic computer technology to do what all computers do routinely which is prioritise and allocate resources such as CPU, memory, disk space, and network bandwidth. Following the principles from the Delegates summary in Aristocrat, it is quite apparent that there is nothing here that is outside the normal use of a computer, there is no technical improvement to the computing technology, and I consider applying the business rules that define the resource credits and their usage requires only generic computer implementation.
62.It is clear from the specification that managing computer resources in this general way, by providing controlled and shared access to computer resources in a managed environment, is not where the invention lies. The problem the specification seeks to overcome is efficiently utilising fixed computing resources when the client has unpredictable demands. The solution lies in the provider of the computing resources defining a level of service for the customer with what in essence is a ‘payment plan’ or a ‘service level agreement’ whereby expending resource credits the customer is provided with a guaranteed minimum level of service as well as burst performance should they have accumulated sufficient resource credits from previous time periods. This solution is conveniently described with reference to the flow charts of Figures 5 through 7 that define what I consider a set of business rules.
63.The applicant’s submissions refer to the importance of considering the substance of the invention arising from the combination of integers and that a holistic point of view should be used, stating:
“…Their Honours appreciated that the claim was to a combination of interworking features and did not attempt to identify the “substance” of the invention from a single feature or statement in isolation”
and
“Here, much like the invention at issue it was recognised that the invention brought together a combination of new and known elements to form a working combination that had not previously been achieved, involving the use of computers in a way foreign to their normal use”.
64.I recognise that there is a level of dynamic interworking between the virtual instances, the elements of the virtualization manager, and the physical computing resources. However, from my reading of the specification this is all an application of routine computer technology. The elements can only be considered in a working combination to the extent that tasks are scheduled and distributed between elements and resource usage data is shared. The interworking relationship is simply sending tasks, data, and information between elements of the invention. Each element in the claimed invention is doing the task that it was designed for and performing that task independently of the other elements. The elements of the claimed invention do not come together through a technical innovation such as an improved architecture or improvement in the computing resources. The elements of the claimed invention are only being brought together through the allocation of work request determined by a series of business rules that define a level of service to the customer. Following the principles from the Delegate’s summary in Aristocrat I consider that there is no use of computing elements that is foreign to their normal use and the computer is merely the tool for performing a method of allocating work requests while adding nothing of substance to the idea of allocating work requests based on what I consider to be a series of business rules.
65.The applicant submits that “the determination of the guaranteed minimum performance is a technical problem”.
66.As I have explained above, the problem addressed by the claimed invention is how to efficiently utilise fixed computing resources when the client has unpredictable demands. I have summarised the solution to this problem in Paragraph 62. The first part of this solution is that the claimed invention provides a baseline utilization guarantee so that the customer is provided with a guaranteed minimum level of computing resource and the applicant (as the provider of the virtual computing resource) is confident their computing resource will not sit idle. This is a business problem and not a technical problem. This is a business problem because the applicant is providing a service to their customer with a commitment to a guaranteed minimum utilisation of the computing resource. Having made that commitment to the customer there is then the expectation that the applicant will have sufficient computing resource to provide the level of service.
67.The applicant also submits that “the problem of how to provide a guarantee that a work request is processed while providing dynamic utilisation of resources to provide flexible high performance without wasting underutilised fixed resources is a technical problem.”.
68.I disagree and consider this situation to be a business problem and not a technical problem. Firstly, the applicant (as provider of the computer resource) is providing to their customers what is in essence a contractual arrangement to provide a level of service. The level of service incorporates a baseline utilization guarantee and a burst performance if there are sufficient accumulated resource credits. Setting the baseline guarantee and level of burst performance is a business decision by the applicant based on the computing resources they have available and the number of customers and their demand. Secondly, a core tenet of business is not to have underutilised assets. Whether these are computing resources or mining equipment – the principle here is to have these assets doing useful work. I consider that the applicant is simply structuring their business including the number, size, and type of computing resources they make available to their customers when they “sell”, via resource credits, access to the virtual computing resource with a minimum guaranteed level of utilisation and the opportunity to accumulate resource credits for burst performance. In summary, and following the principles from the Delegate’s summary in Aristocrat, I do not consider that contribution of the claimed invention is technical in nature.
69.The applicant’s submissions state that a “claim which functionally defines an invention may be for a manner of manufacture where the functions create a technical effect.”. More specifically the submissions state:
“creates a technical effect of providing dynamic utilisation of resources to provide flexible higher performance without wasting unutilized fixed resources and on the same time providing a baseline utilization guarantee to perform a working request.”
On a related note, the applicant’s submission refers to the Singh declaration filed at the start of the examination process. The Singh declaration provides a concise summary of the benefits of the invention, including:
“For example, virtual computer resources relying upon the same physical computer resources may be in contention and conflict with one another if burst concurrently. Thus a credit scheme is needed to prevent concurrent bursting using commonly shared physical computer resources”,
“…has been designed to overcome the problem of a virtual computer resource exhausting all of its allocated credits”,
“… previous systems that did not allow for burst capabilities required a client to reserve a virtual computer resource with greater guaranteed processing capability than the client needed for normal operation.”, and
“… if a virtual computer resource were to consume all the allocated credits prior to the next period in which credits are allocated, the virtual computer resource would be left with no allocated physical compute resources.”
70.The issue I have with regards to the submitted technical effect and benefits is that it is not apparent that these effects and benefits will be realised in all situations. The applicant’s submissions are directed to not wasting unutilized fixed resources and guaranteeing processing capability. I note that the claimed invention only provides these benefits in the very specific scenario where the particular demand of the total customer’s work requests, including those customers making use of a baseline guarantee and some customers with a burst performance, is such that the claimed method and system allocates tasks so that there is absolutely no underutilised resources. Put alternatively; the total customer usage of the system is equal to the capacity of the system. However, this is just one scenario that the applicant, as provider of the service, will face. Another scenario is where all the customers have a very high level of demand, and all of the work requests require burst performance of the computing resource. If the design and build of the computing resources are specified for this scenario, then a lower level of customer demand will result in underutilised computing resources. Alternatively, if the computing resources are specified for a more typical level of usage, then the applicant would not be able to fulfill the customer’s work requests because the total capacity of the computing resources are insufficient. Similarly, at any point in time, if the total customer’s demand is lower than the system is designed for, then there will be wasted unutilised fixed resources. An further scenario that appears both inconsistent with the submitted benefit as well a not anticipated by the claimed method is when a customer has sufficient credits for burst performance, but there are no available computing resources to fulfill their work request because the overall size and design of the computing resources is insufficient.
71.Thus, whilst the claimed invention may solve the applicant’s problem, and may have some level of benefit and technical effect, it is quite apparent that this is only the case in a very particular and niche situation. In other scenarios there is less, or even no, technical effect or benefit from the claimed invention.
72.Continuing the theme of technical effects and benefits it is relevant to consider now, as per the principles of Aristocrat, whether application of the method produces a practical and useful result. The benefits proposed by the Singh declaration, and the applicant’s submissions about a technical effect more broadly, do constitute a practical and useful result by achieving improved usage of limited computing resources. However, as above, it is only a practical and useful result in a very particular scenario. In other scenarios it is questionable whether a useful result will be achieved because there will either be unused computing resources or work requests cannot be fulfilled because there are insufficient computing resources.
73.In weighing up the principles from the Delegate’s summary in Aristocrat it is apparent that on the one hand the claimed invention produces a practical and useful result in some situations, and that the claimed invention does provide a combination of new and known elements to form a working combination that had not previously been achieved. However, I cannot place too much weight on these factors. As explained above, the practical and useful result is not achieved in all situations and when it is achieved it is largely dependent on a business decision made when defining a level of service and designing the computing resources for a predicted user demand. The working combination arises only through the individual elements of the computing resource doing the job they were designed for by completing work request that have been scheduled based on a set of busines rules defined around resource credits for baseline and burst performance. Any interaction between elements only arises through the way tasks are scheduled based on business rules and each individual computer resource per se is ultimately only doing what it is natively designed for.
74.On the other side of the considerations is that there is no improvement to the technology that is utilised and there is no improvement in the functioning of the computing resources per se. There is no technical innovation in how tasks are scheduled; they are scheduled based on busines rules only. The computer hardware and software associated with the claimed features such as the virtualisation manager and scheduler are merely performing their usual independent function, there being no improved operation of the computing technology and no device of specific character. The solution to the applicant’s problem does not arise from an improvement that is technical in nature or in the way the computing resources are utilised. The applicant’s problem of efficiently utilising fixed computing resources when their client has unpredictable demands is only solved by structuring the provision of their computing resources around what I describe as a service level agreement that includes a baseline guarantee and burst performance.
75.In view of the above, having balanced the principles from the Delegate’s summary in Aristocrat, it is reasonable to conclude that the substance of the invention, both as claimed and described, is directed to a business innovation where a level of service is provided by the applicant on the basis of a payment scheme for resource credits and a resource allocation policy in the form of the baseline guarantee and burst performance if sufficient credits have been accumulated. The business rules around the resource credits and baseline guarantee are set to ensure work requests are scheduled on the applicant’s computing resources such they are utilised most effectively. It follows that the substance of the invention as claimed in claim 1 amounts to nothing more than a scheme for scheduling work and is therefore not for a manner of manufacture.
76.The scope of claim 10 is substantially similar in nature to claim 1. The difference in claim drafting is simply that claim 10 is a system that performs the method made up of identical elements as claim 1. Hence the substance of claim 10 is the same as claim 1 and therefore claim 10 is also not for a manner of manufacture.
77.I have also considered each of the dependent claims. None of these add anything of substance that fundamentally escapes the patentability issues of the independent claims. It follows that none of the dependent claims are for a manner of manufacture.
78.As noted above, the description describes the technical implementation of the invention and the embodiment to a high degree of generalisation. The only real disclosure of anything more than a resource credit scheme as I have described above relates to the user interface one may use to engage with the claimed invention. It is apparent from the specification that the interface relies on generic computing technology and there is no improvement in the underlying interface technology. As such I do not consider there to be any material in the description that would provide the claimed invention with a manner of manufacture.
Conclusion
79.None of the claims are for a manner of manufacture. In addition, I see no material in the application that could be made the subject of a claim so as to result in that claim being for a manner of manufacture. I therefore refuse the application.
Mr Kevin Restrick
Delegate of the Commissioner of Patents
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