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 .
Specification
The title of the invention is not descriptive. A new title is required that is clearly indicative of the invention to which the claims are directed.
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 1-20 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.
Where applicant acts as his or her own lexicographer to specifically define a term of a claim contrary to its ordinary meaning, the written description must clearly redefine the claim term and set forth the uncommon definition so as to put one reasonably skilled in the art on notice that the applicant intended to so redefine that claim term. Process Control Corp. v. HydReclaim Corp., 190 F.3d 1350, 1357, 52 USPQ2d 1029, 1033 (Fed. Cir. 1999).
Regarding claim 1, the term “processors” may refer to “virtual machines” (specification, ¶ 19, “[p]rocessor(s) of the control system shown in FIG. 1 may represent or create nodes” and “[t]he nodes also can be referred to as virtual machines operating on the processor(s)). The well-known definition in the art of “a processor” is a circuit for executing machine readable instructions. The term is indefinite because the specification does not clearly redefine the term.
Claims 2-20 recite commensurate subject matter; therefore, they are rejected for the same reason.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claims 5, 12, and 18 rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Claim 5’s requirements of running software applications in containers without recompiling has been recited in the parent claim 1. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements. Claim 18 corresponds to claim 5; therefore, it is rejected for the same reason.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (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 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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claim(s) 1, 2, 4, 5, 8, 9, 11, 12, 14, 15, 17, and 18 is/are rejected under 35 U.S.C. 103 as being unpatentable over Gopalan (US 2021/0318900) and further in view of Jutzi (US 2023/0376344).
Regarding claim 1, Gopalan teaches: A powered system (¶ 25, “virtualization system 100 may refer to a collection or group of software-hardware components that provide “virtual hardware” or “virtual operating systems” on a user's computing device (e.g., laptop) to gain access to a shared computing system, server, and/or infrastructure”) comprising: a control system having processors communicatively coupled with each other by a data plane of a communication network (¶ 26, “Hypervisor 104 may be positioned between, with respect to the communication link or path, virtual machines 106 and host 102”), the processors configured to run software applications in containers to control operation of the powered system (¶ 32, “Containers 120 may be found or included within virtual machines 106 within virtualization system 100. For example, a first virtual machine 106-1 may include a plurality of containers 120 included therein. Each of the plurality of containers 120 may refer to a collection and/or predefined grouping of features included within virtual machine 106 including, but not limited to, APPS 112 (see, FIG. 1)”), the processors configured to switch which of the processors are running different ones of the software applications operating in different ones of the containers (¶ 35, “a process for live migration of containers 120 from first virtual machine 106-1 to second virtual machine 106-2 is discussed below”)
Gopalan does not teach; however, Jutzi discloses: without recompiling code of the software applications or changing the code of the software applications (¶ 57, “a container 636 (or pod of containers) may be flexibly migrated from one of the edge nodes 620 to other edge nodes (e.g., another one of edge nodes 620, one of the edge resource node(s) 640, etc.) such that the container with an application and workload does not need to be reconstituted, re-compiled, re-interpreted in order for migration to work”).
It would have been obvious to a person having ordinary skill in the art, at the effective filing date of the invention, to have applied the known technique of without recompiling code of the software applications or changing the code of the software applications, as taught by Jutzi, in the same way to the switching which processor runs the software application, as taught by Gopalan. Both inventions are in the field of migrating containers, and combining them would have predictably resulted in a system configured to “transparently move the workloads already developed by the ISV for the cloud/edge, to the client edge/end user device,” as indicated by Jutzi (¶ 24).
Regarding claim 2, Jutzi teaches: The powered system of claim 1, wherein the control system is configured to operate the processors and the software applications in the containers to control or change movement of a vehicle (¶ 25, “The edge cloud 110 is located much closer to the endpoint (consumer and producer) data sources and/or end points 160 (e.g., autonomous vehicles 161”).
Regarding claim 4, Jutzi teaches: The powered system of claim 1, wherein the processors are configured to be connected with each other and the data plane is configured to operate within Ethernet connections of the communication network (¶ 68, “To enable communication via the example network 702, the cloud backend 701 and/or the edge and/or end user computing device 704 includes a communication interface that enables a connection to an Ethernet”).
Regarding claim 5, Jutzi teaches: The powered system of claim 1, wherein the processors are configured to switch which of the processors are running the software applications in the containers without recompiling the software applications (¶ 57, “a container 636 (or pod of containers) may be flexibly migrated from one of the edge nodes 620 to other edge nodes (e.g., another one of edge nodes 620, one of the edge resource node(s) 640, etc.) such that the container with an application and workload does not need to be reconstituted, re-compiled, re-interpreted in order for migration to work”).
Claims 8, 9, 11, 12, 14, 15, 17, and 18 recite commensurate subject matter as claims 1, 2, 4, and 5. Therefore, they are rejected for the same reasons.
Claim(s) 3, 10, and 16 is/are rejected under 35 U.S.C. 103 as being unpatentable over Gopalan and Jutzi, as applied above, and further in view of Kang (Kang, Z., An, K., Gokhale, A., & Pazandak, P. (2020). Evaluating Performance of OMG DDS in Kubernetes Container Deployment (Industry Track). ACM Middleware’20).
Regarding claim 3, Gopalan and Jutzi do not teach; however, Kang discloses: run the software applications in the containers in a data distribution service configuration (Conclusion, “In this paper, we validated the feasibility of deploying DDS applications with k8s and explained the k8s components and operations through a workflow”).
It would have been obvious to a person having ordinary skill in the art, at the effective filing date of the invention, to have applied the known technique of run the software applications in the containers in a data distribution service configuration, as taught by Kang, in the same way to Kang, as taught by Gopalan and Jutzi. Both inventions are in the field of Kubernetes pods, and combining them would have predictably resulted in “an open standardized middleware for real-time and distributed IIoT applications,” as indicated by Kang (Introduction).
Claims 10 and 16 recite commensurate subject matter as claims 3. Therefore, they are rejected for the same reasons.
Claim(s) 6, 7, 13, 19, and 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Gopalan and Jutzi, as applied above, and further in view of Mendez (US 2022/0321655).
Regarding claim 6, Gopalan and Jutzi do not teach; however, Mendez discloses: the processors are configured to be disposed within different devices of the powered system that perform different operations of the powered system (¶ 108, “FIG. 9 illustrates virtual domain control units (virtual DCUs) and virtual electronic control units (virtual ECUs) that execute code associated with a vehicle in a local virtual DCU/ECU orchestration environment at the vehicle and also execute code associated with the vehicle in remote virtual DCU/ECU orchestration environments remote from the vehicle”).
It would have been obvious to a person having ordinary skill in the art, at the effective filing date of the invention, to have applied the known technique of run the software applications in the containers in a data distribution service configuration, as taught by Kang, in the same way to Mendez, as taught by Gopalan and Jutzi. Both inventions are in the field of implementing computing systems, and combining them would have predictably resulted in “implementing an in-vehicle distributed computing environment for executing synthetic sensors in vehicles,” as indicated by Mendez (¶ 26).
Regarding claim 7, Mendez discloses: The powered system of claim 6, wherein the different devices include an input-output device, a sensor (¶ 29, “the two or more modular components may include a logic module placed at a first ECU of the vehicle and an input module placed at a second ECU of the vehicle, wherein the logic module implements logic included in the synthetic sensor package and the input module provides the logic module with data inputs according to the mappings associated with the synthetic sensor”), or an energy management system.
Claims 13, 19, and 20 recite commensurate subject matter as claims 6 and 7. Therefore, they are rejected for the same reasons.
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 provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of copending Application No. 18/450,850 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because the reference application teaches or at least suggests each and every limitation of the instant application. See claim correspondence below.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Instant Application
Reference Application
1. A powered system comprising: a control system having processors communicatively coupled with each other by a data plane of a communication network, the processors configured to run software applications in containers to control operation of the powered system, the processors configured to switch which of the processors are running different ones of the software applications operating in different ones of the containers without recompiling code of the software applications or changing the code of the software applications.
1. A powered system comprising: a control system having processors communicatively coupled with each other by a data plane of a communication network, the processors configured to run software applications in containers to control operation of the powered system, the processors configured to switch which of the processors are running different ones of the software applications operating in different ones of the containers, the processors configured to change a mode of at least one of the containers to a shadow mode that prevents output from at least a first application of the software applications that is running in the at least one of the containers operating in the shadow mode from changing operation of the powered system.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Singhal (US 2022/0229687) discloses “deploying a second control plane virtual machine that is configured to manage containers of a cluster of virtual execution environments using the second container runtime” (abstract), which relates to the disclosed data plane.
Jayaram (US 2020/0034193) discloses “controller executes the containerized application, receive an indication from a second computing node that the containerized application is being migrated, transfers data associated with the containerized application to the second computing node” (abstract), which relates to the disclosed containerized application migration.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JACOB D DASCOMB whose telephone number is (571)272-9993. The examiner can normally be reached M-F 9:00-5:00.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Pierre Vital can be reached at (571) 272-4215. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/JACOB D DASCOMB/Primary Examiner, Art Unit 2198