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 .
Claims 1-20 are pending.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-17 of U.S. Patent No. 10761889 (hereinafter ‘889). Although the claims at issue are not identical, they are not patentably distinct from each other because the claims of the ‘889 patent anticipate the claims of the instant application. For example, claims 1, 11, 12, and 13 of the ‘889 patent anticipates claim 1 of the instant application.
Claims 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-12 of U.S. Patent No. 11567801 (hereinafter ‘801). Although the claims at issue are not identical, they are not patentably distinct from each other because the claims of the ‘801 patent anticipate the claims of the instant application. For example, claims 1, 2, and 3 of the ‘801 patent anticipates claim 1 of the instant application, claim 7 of the ‘801 patent anticipates claim 14 of the instant application.
Claim Rejections - 35 USC § 102
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) 14 and 15 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Jain (US 2013/0007753).
With respect to claim 14, Jain discloses: A method for scaling an instance group of a computing platform (Abstract), the method comprising:
determining a job dependency tree for a plurality of related jobs ([0032], [0093] where the directed acyclic graph corresponds to Applicant’s “job dependency tree”),
determining runtime data for each of the jobs in the dependency tree ([0093], “task execution times” correspond to Applicant’s “runtime data”); and
scaling up or down the instance group based on the determined runtime data ([0093], “autoscaling decisions”, [0094] scales in or out resources or virtual machines).
With respect to claim 15, Jain discloses: generating the dependency tree for the plurality of related jobs based on data sets that depend on each other such that a data set output from one job serves as an input data set for one or more other jobs ([0032]).
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim(s) 16 is rejected under 35 U.S.C. 103 as being unpatentable over Jain (US 2013/0007753) in view of Saballus et al. (US 2018/0121235).
With respect to claim 16, Jain does not specifically disclose: determining runtime data for each of the jobs in the dependency tree by determining an accumulated runtime length for all jobs in the dependency tree for a job.
However, Saballus discloses: determining runtime data for each of the jobs in the dependency tree by determining an accumulated runtime length for all jobs in the dependency tree for a job ([0017], [0047], under the broadest reasonable interpretation “accumulated runtime length” merely gathers the runtime lengths for all jobs. Similarly, Saballas is “accumulating” the runtime of all the tasks and comparing their runtimes to each other as a sorting criteria).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the invention to incorporate the teachings of Saballus to improve execution control in real time systems by considering time limits for executing a specific task ([0007], [0009], Saballus).
Claim(s) 17 and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Jain (US 2013/0007753) in view of Boss et al. (US 2013/0311988).
With respect to claim 17, Jain does not specifically disclose: determining whether to scale up or down the instance group by using historical data from prior jobs wherein the historical data comprises one or more of: a data set size used in a prior related job and a code version for a prior related job; and scaling the instance group up or down based on the determination.
However, Boss discloses: determining whether to scale up or down the instance group by using historical data from prior jobs wherein the historical data comprises one or more of: a data set size used in a prior related job and a code version for a prior related job; and scaling the instance group up or down based on the determination ([0057], where workload requests correspond to Applicant’s “jobs”).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the invention to incorporate the teachings of Boss to ensure workloads are being migrated in geographically dispersed cloud environments in a time efficient manner and processed in an optimal fashion.
With respect to claim 18, Boss discloses: comparing a planned data set size to be used for a job with the data set size used in a prior related job (id.).
Examiner’s Note
No prior art found for claims 1-13, 19, and 20. However, they are rejected on the ground of non statutory double patenting.
Conclusion
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Any inquiry concerning this communication or earlier communications from the examiner should be directed to WISSAM RASHID whose telephone number is (571)270-3758. The examiner can normally be reached Monday-Friday 8:00 am-5:00 pm.
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/WISSAM RASHID/Primary Examiner, Art Unit 2195