Remarks
Claims 1-10 are pending.
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 .
Response to Arguments
Applicant's arguments filed 7/11/2025 have been fully considered but they are not persuasive.
With respect to Applicant’s allegations on pages 7-8 of the response dated 7/11/2025, Applicant has pulled a description of a single figure of Malkov and provided an erroneous interpretation as the basis for all of Applicant’s arguments. While figure 1 may depict a device, Malkov is directed to cloud-based backups and restoration of backups. For example, paragraph 10 discusses that Malkov desires to have “Primary objectives of embodiments of the invention directed towards protecting data backups and replications that have been previously performed, catalogued, and stored in various networked locations”. Malkov discusses AWS (Amazon Web Services) throughout, which is a massive cloud. Indeed, figure 2A, for example, shows a router (06) connected to a gateway (04) and onto a digital network (02), as well as the AWS cloud and portions thereof. Moreover, claim 1 does not prohibit having everything on one device. Rather, the method of claim 1 is could be performed by a single device. It is noted that servers may be virtual as well as service processing units. Thus, it is unclear just what Applicant is attempting to argue here, since claim 1 does not even require performing functionality at multiple devices. While claim 1 does mention reporting information to a cloud based service, this cloud based service is not part of the claim and any functionality occurring at this cloud based service is not part of the step of reporting information.
With respect to Applicant’s allegations in the first full paragraph on page 8, no actual argument appears to be provided here other than Applicant’s erroneous belief that Malkov discloses only a single device. With respect to this paragraph, it is first noted that this is intended use and overwriting need not be performed at all in the claim, since the storage operations are “to overwrite…”. However, the operations themselves may simply be something like “store file X”. Therefore, storing file X need not overwrite, but may be storing it in a new location, for example. Although the intended use is for overwriting to occur, this is not a requirement based on the language in the claim. Moreover, Malkov discloses overwriting, such as encrypting files, modifying files, changing registry entries, and the like, which is performed on the virtual volumes, but not on the previously stored backups, for example, thus not performing any overwrites on the backups within the storage devices.
With respect to the third full paragraph on page 8, Applicant appears to quote case law and then alleges “The Office Action cannot find each and ever element as set forth in claim 1, either expressly or inherently, in the reference or references and, therefore, the rejection under at least section 102 is improper.” However, Applicant fails to support this argument by even mentioning any limitation or reference or argue anything. Applicant's arguments fail to comply with 37 CFR 1.111(b) because they amount to a general allegation that the claims define a patentable invention without specifically pointing out how the language of the claims patentably distinguishes them from the references.
Applicant then keeps up with boilerplate style general allegations, copying in case law, and then possibly adding in a portion, such as “This burden is not met in the Office Action” or “In view of the contrary evidence in Applicant’s discussion of the reference, the substantial evidence standard cannot be met by generalizations and improper reliance on a contrary or unfounded assumption from the cited reference to extend the cited reference under section 102, for instance”. No actual argument is provided. Applicant's arguments fail to comply with 37 CFR 1.111(b) because they amount to a general allegation that the claims define a patentable invention without specifically pointing out how the language of the claims patentably distinguishes them from the references. In fact, with respect to the last quote above, this is in a paragraph regarding official notice, but no official notice was taken, so it is unclear what relevance Applicant believes any of this boilerplate has to anything in the rejections.
Near the end of page 9, Applicant alleges “In addition to the above, the section 103 rejection is not applicable to claim 1 because the Office Action does not allege so and so, by implicit admission, the secondary reference is deficient.” The Examiner is entirely lost as to what is even being attempted to be argued here. No implicit admission is provided by not citing art against subject matter that has not been amended into the claims yet, nor by anything else in the office action, and any claim to the contrary is simply preposterous.
Applicant then appears to quote a non-cited portion of Bhave and alleges “This is inapposite discussion to the requirements in claim 1 that are deficient in Malkov.” Again, it is entirely unclear what Applicant is attempting to argue here. No limitation is brought forth or any reason that Malkov’s or Bhave’s teachings are believed to be “inapposite” or anything.
Applicant then alleges “Therefore, such disclosures in the cited reference or references are inapposite to the required features of claim 1…”. Again, it is entirely unclear what Applicant is attempting to argue here. No limitation is brought forth or any reason that Malkov’s or Bhave’s teachings are believed to be “inapposite” or anything.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-10 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 1 recites the limitation "the physical devices that are external to the plurality of SPUs" in the penultimate limitation. There is insufficient antecedent basis for this limitation in the claim. Claim 5 has the same issue with respect to “the storage devices that is external to the plurality of SPUs” and is rejected for the same reasons. Claims 2-4 and 6-10 are rejected at least bast on their dependencies.
Claim 5 recites the limitation "the storage nodes" in the final limitation. There is insufficient antecedent basis for this limitation in the claim. Claims 6-10 are rejected at least bast on their dependencies.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1-7 and 10 are rejected under 35 U.S.C. 102(a)(1) and/or 102(a)(2) as being anticipated by Malkov (U.S. Patent Application Publication 2020/0159624).
Regarding Claim 1,
Malkov discloses a process for operating a storage system including a plurality of servers containing a plurality of SPUs, the process comprising:
Receiving a series of storage service requests from a client (Exemplary Citations: for example, Abstract, Paragraphs 9, 12, 13, 102, 106-113, 116, 117, 119, 133, 152, and associated figures; backup, copy, store, write, read, execute, log, etc., as examples);
Performing storage operations to fulfill the storage service requests, the storage operations to overwrite at least some old data in virtual volumes of the plurality of servers with new data, while maintaining the old data in physical storage devices of the plurality of servers, wherein the virtual volumes are associated with memory within the plurality of SPUs that is distinct from the physical storage devices that are external to the plurality of SPUs (Exemplary Citations: for example, Abstract, Paragraphs 4, 5, 9, 12, 13, 15, 90, 95, 100-102, 104-119, 121, 128-134, 152-165, 170-173, and associated figures; overwriting, such as file modifications, encryption, registry changes, etc., as examples, as well as backup, restore, protect backup, replicate, copy, etc., as examples); and
Reporting information on the storage operations to a cloud based service, wherein the cloud based service is to analyze the information to detect an indicator of malware activity associated with the virtual volumes, wherein the old data from the physical storage devices is available to be restored to perform subsequent storage service requests (Exemplary Citations: for example, Abstract, Paragraphs 9, 12, 13, 90, 95, 100-102, 104-119, 128-134, 152-165, 170-173, and associated figures; information being given to the AI, machine learning, anomaly detection, action, etc., portions of Malkov, for example, determining if anomalous, malware, faithful, etc., as examples).
Regarding Claim 2,
Malkov discloses in response to detecting malware the indicator of malware activity, the cloud based service instructing the plurality of SPUs to maintain snapshots of data in a state before the indicator occurred (Exemplary Citations: for example, Abstract, Paragraphs 9, 12, 13, 90, 95, 100-102, 104-119, 128-134, 152-165, 170-173, and associated figures; backup, restore, protect backup, replicate, copy, etc., as examples).
Regarding Claim 3,
Malkov discloses training a model using past information on the storage operations (Exemplary Citations: for example, Abstract, Paragraphs 9, 12, 13, 90, 95, 100-102, 104-119, 128-165, 170-173, and associated figures; training, creating baselines, monitoring continuously and updating machine learning/AI continuously, etc., as examples); and
The cloud based service detecting the indicator of malware activity based on a difference between the model and the information reported by the plurality of SPUs (Exemplary Citations: for example, Abstract, Paragraphs 9, 12, 13, 90, 95, 100-102, 104-119, 128-165, 170-173, and associated figures; comparing baseline to current, detecting anomalies based on trained data and current data, etc., as examples).
Regarding Claim 4,
Malkov discloses analyzing blocks of data written by performance of the storage operations, the information reported to the cloud based service indicating results from the plurality of SPUs analyzing the blocks of data (Exemplary Citations: for example, Abstract, Paragraphs 9, 12, 13, 90, 95, 100-102, 104-119, 128-134, 152-165, 170-173, and associated figures; any analysis, such as logging performance of the functions, logging requests, traffic logging, indicating backups that occurred, restores that occurred, etc., as examples).
Regarding Claim 5,
Malkov discloses a storage system comprising:
One or more storage nodes, each storage node including (Exemplary Citations: for example, Abstract, Paragraphs 9, 12, 13, 102, 106-113, 116, 117, 119, 133, 152, and associated figures; any device, virtual machine, service, etc., that includes the below, for example):
A server (Exemplary Citations: for example, Abstract, Paragraphs 9, 12, 13, 102, 106-113, 116, 117, 119, 133, 152, and associated figures; server, service software/hardware, VM etc., for example);
A storage device (Exemplary Citations: for example, Abstract, Paragraphs 9, 12, 13, 102, 106-113, 116, 117, 119, 133, 152, and associated figures); and
A plurality of SPUs connected to the storage device, the plurality of SPUs operating the storage device to physically store data of one or more virtual volumes and to provide storage services to clients using the data of the one or more virtual volumes, wherein the storage services allow overwriting of at least some old data in the one or more virtual volumes with new data, while maintaining the old data in the storage device, wherein the virtual volumes are associated with memory within the plurality of SPUs that is distinct from the storage device that is external to the plurality of SPUs (Exemplary Citations: for example, Abstract, Paragraphs 4, 5, 9, 12, 13, 15, 90, 95, 100-102, 104-119, 121, 128-134, 152-165, 170-173, and associated figures); and
A cloud based infrastructure in communication with the plurality of SPUs in the storage nodes, the cloud based infrastructure being configured to analyze information that the plurality of SPUs provide about the one or more virtual volumes and based on the analysis of information, to direct the plurality of SPUs to maintain snapshots in the old data within the storage device that permit recovery of data after a ransomware attack (Exemplary Citations: for example, Abstract, Paragraphs 9, 12, 13, 90, 95, 100-102, 104-119, 128-165, 170-173, and associated figures; as above, with virtual volumes, such as VMs, backups, snapshots, etc., for example).
Regarding Claim 6,
Malkov discloses that the information that the plurality of SPUs provides indicate patterns of storage operations targeting the one or more virtual volumes (Exemplary Citations: for example, Abstract, Paragraphs 9, 12, 13, 90, 95, 100-102, 104-120, 128-165, 170-173, and associated figures; patterns in data, for example).
Regarding Claim 7,
Malkov discloses that the information that the plurality of SPUs provides includes test results from analysis of data blocks written to the one or more virtual volumes by the plurality of SPUs (Exemplary Citations: for example, Abstract, Paragraphs 9, 12, 13, 90, 95, 100-102, 104-120, 128-165, 170-173, and associated figures; instance firewall logs, machine learning portion which can be on a service processing unit, which analyzes data and then provides the information to the next level (e.g., action), etc., as examples).
Regarding Claim 10,
Malkov discloses that the analysis of the information includes detecting an anomaly by comparing the information to a model that results from a machine learning process that was trained using past information (Exemplary Citations: for example, Abstract, Paragraphs 9, 12, 13, 90, 95, 100-102, 104-119, 128-165, 170-173, and associated figures).
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.
Claims 8 and 9 are rejected under 35 U.S.C. 103 as being unpatentable over Malkov in view of Bhave (U.S. Patent Application Publication 2018/0307839).
Regarding Claim 8,
Malkov discloses that ransomware detection includes determining compressibility, entropy, and encryption of the data blocks (Exemplary Citations: for example, Paragraphs 15, 158, 165, and associated figures; ransomware encrypts data and mass encryption is detected, for example);
But may not explicitly disclose that the test results indicate such.
Bhave, however, discloses that the test results indicate one or more of compressibility, entropy, and encryption of the data blocks (Exemplary Citations: for example, Abstract, Paragraphs 18, 26, 38-45, 48-51, 54-57, 59, and associated figures; generate entropy scores to determine if ransomware is present, for example). It would have been obvious to one of ordinary skill in the art at the time of applicant’s invention, which is before any effective filing date of the claimed invention, to incorporate the ransomware detection techniques of Bhave into the data protection system of Malkov in order to provide additional techniques by which malware may be detected, to detect ransomware that is random or encrypted or compressed, to provide an efficient approach of detecting ransomware and resolving damages due to the ransomware, and/or to increase security in the system.
Regarding Claim 9,
Malkov does not appear to explicitly disclose that the information represents a histogram of the test results.
Bhave, however, discloses that the information represents a histogram of the test results (Exemplary Citations: for example, Abstract, Paragraphs 18, 26, 38-45, 48-51, 54-57, 59, and associated figures; histogram, for example). It would have been obvious to one of ordinary skill in the art at the time of applicant’s invention, which is before any effective filing date of the claimed invention, to incorporate the ransomware detection techniques of Bhave into the data protection system of Malkov in order to provide additional techniques by which malware may be detected, to detect ransomware that is random or encrypted or compressed, to provide an efficient approach of detecting ransomware and resolving damages due to the ransomware, and/or to increase security in the system.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Jeffrey D Popham whose telephone number is (571)272-7215. The examiner can normally be reached Monday through Friday 9:00-5:30.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Jeffrey Nickerson can be reached at (469) 295-9235. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Jeffrey D. Popham/Primary Examiner, Art Unit 2432