Detailed Office Action
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
This office action is in response to the communication dated 8/18/23
Claims 1-6 are pending.
Claims 3-4 objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
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 1-6 provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-14 of co-pending Application No. 18/022-399. Although the claims at issue are not identical, they are not patentably distinct from each other because Although the claims at issue are not identical, they are not patentably distinct from each other, because a comparison made between claims 1-6 of the instant application and claims 1-14 of the cop-ending reveal the claims at issue define essentially the same invention in different language. Thus, one of ordinary skill in the art would conclude that the invention defined in claim 1-6 at issue is an obvious variation of the invention defined in the claims 1-14 of the co-pending application. Thus, examiner asserts the difference describe a subset of all possible conditions being monitored in the co-pending claims 1-16. These differences are not sufficient to render the claims patentably distinct and therefore a terminal disclaimer is required.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
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.
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.
Claims 1, 2, 5 and 6 are rejected under 35 U.S.C. 103 as being unpatentable over NAKATSUKASA et al. U. S. Patent Application Publication No. 2023/0318955 A1 [hereinafter NAKATSUKASA] in view Cidon et al. of U. S. Patent Application Publication No. US 2019/0103993 A1 [hereinafter Cidon].
As per claims 1, 5 and 6 NAKATSUKASA discloses a delay measurement device(fig. 1) that measures a delay of a network (NW) configured by connecting a plurality of end points to each other(fig. 8) , the delay measurement device(fig.1, elements 3 )comprising:
a NW measurement unit,(31) implemented using one or more processors, t configured to measure a topology( end-to-end route path ), a delay amount of each link, jitter, and a packet loss rate, and cause a NW state holding unit, implemented using one or more processors, to hold the topology, the delay amount of each link(see par. 0047), the jitter, and the packet loss rate as NW state information(see par. 0032, 0084 where e delay measurement device 3 exports information on the VPN route path to be measured from the route path control device 2, and calculates the transfer delay for the VPN route path using the round-trip propagation delay of the first measurement packet 61 and the second measurement packet 62 );
a path calculation function unit, (37) implemented using one or more processors, configured to calculate that measurement path on a basis of a weighted topology in which the weight of the link quality calculated by the link quality calculation unit is reflected in the topology(see par. 0032, 0046),
wherein the NW measurement unit is configured to transmit transmits a measurement packet to a start point end point and measures-measure a delay amount of a measurement target section of the NW on a basis of the measurement path calculated by the path calculation function unit(see par. 0084, 0089).
NAKATSUKASA does not explicitly disclose a link quality calculation unit, implemented using one or more processors to calculate a link quality between the end points as a weight on a basis.
Cidon discloses system are for establishing an end-to-end route for data to traverse a wireless network, including calculating a link cost function, including a link quality calculation unit, implemented using one or more processors to calculate a link quality between the end points as a weight on a basis (see par. 0258, 0260). Therefore, it would have been obvious to one having ordinary skill in the art prior to effective filing date of the claimed invention to incorporate the teaching s of Cidon int the system of NAKATSUKASA, thus by using the computed costs of these links, the controller cluster can compute the cost of each routing path that uses one or more of these pair-wise links by aggregating the costs of the individual pair-wise links that are used by the routing path in order to optimize the routing of the entity's data to their destinations for best end-to-end performance, reliability and security, while trying to minimize the routing of this traffic through the Internet.
As per claim , Cidon 2 discloses the delay measurement device according to claim 1, herein the path calculation function unit is configured to calculate path in which e weight of the link quality becomes a minimum sum as the measurement path(see par. 0125).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ABDULLAHI ELMI SALAD whose telephone number is (571)272-4009. The examiner can normally be reached 9:30AM-6:PM.
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/ABDULLAHI E SALAD/Primary Examiner, Art Unit 2466