REISSUE PROCEDURAL REMINDERS
Disclosure of other proceedings. Applicant is reminded of the continuing obligation under 37 CFR 1.178(b), to timely apprise the Office of any prior or concurrent proceed-ing in which the Patent Under Reissue is or was involved. These proceedings would include interferences, reissues, reexaminations, and litigation.
Disclosure of material information. Applicant is further reminded of the continuing obligation under 37 CFR 1.56, to timely apprise the Office of any information which is mate-rial to patentability of the claims under consideration in this reissue appli-cation.
These disclosure obligations rest with each individual associated with the filing and prosecution of this application for reissue. See also MPEP §§ 1404, 1442.01 and 1442.04.
Manner of making amendments. Applicant is reminded that changes to the Instant Application must comply with 37 C.F.R. § 1.173, such that all amendments are made in respect to the Patent Under Reissue as opposed to any prior changes entered in the Instant Application. All added material must be underlined, and all omitted material must be enclosed in brackets, in accordance with Rule 173. Applicant may submit an appendix to any response in which claims are marked up to show changes with respect to a previous set of claims, however, such claims should be clearly denoted as “not for entry.”
Priority
Application No. 18/512,524 is a reissue application of the US Patent No. 9,983,968 which originated as an Application for US Patent No. 14/749,395 with the filing date of June 24, 2015. Since no other priority documents have been filed, June 24, 2015 is considered an earliest effective filing date.
In addition, because the original Application for Patent has been filed after March 16, 2013, the Application will be examined according to the post-AIA provisions.
Oath or Declaration
The reissue oath/declaration filed with this application is defective because it fails to identify at least one error which is relied upon to support the reissue application. See 37 CFR 1.175 and MPEP § 1414.
Additionally, MPEP 1444, I (C) recites the following:
“It is not sufficient for an oath/declaration to merely state “this application is being filed to correct errors in the patent which may be noted from the changes made in the disclosure.” Rather, the oath/declaration must specifically identify an error. In addition, it is not sufficient to merely reproduce the claims with brackets and underlining and state that such will identify the error. See In re Constant, 827 F.2d 728, 729, 3 USPQ2d 1479 (Fed. Cir.), cert. denied, 484 U.S. 894 (1987). Any error in the claims must be identified by reference to the specific claim(s) and the specific claim language wherein lies the error”.
A statement in the oath/declaration lists claim 20 as the new amended/corrected claim, however such a claim number does not exist in the latest set of claims filed on April 4th, 2024. Accordingly, since the Oath/Declaration does not address existing claims in the outstanding reissue application, the error relied upon is incorrect.
Rejection under 35 U.S.C. 251
Claims 36-55 are rejected as being based upon a defective reissue Oath/Declaration under 35 U.S.C. 251 as set forth above. See 37 CFR 1.175.
The nature of the defect(s) in the Oath/Declaration is set forth in the discussion above in this Office action.
Claim Rejections - 35 USC § 251
Claims 36-55 are rejected under 35 U.S.C. 251 as being an improper recapture of broadened claimed subject matter surrendered in the application for the patent upon which the present reissue is based. See Greenliant Systems, Inc. et al v. Xicor LLC, 692 F.3d 1261, 103 USPQ2d 1951 (Fed. Cir. 2012); In re Shahram Mostafazadeh and Joseph O. Smith, 643 F.3d 1353, 98 USPQ2d 1639 (Fed. Cir. 2011); North American Container, Inc. v. Plastipak Packaging, Inc., 415 F.3d 1335, 75 USPQ2d 1545 (Fed. Cir. 2005); Pannu v. Storz Instruments Inc., 258 F.3d 1366, 59 USPQ2d 1597 (Fed. Cir. 2001); Hester Industries, Inc. v. Stein, Inc., 142 F.3d 1472, 46 USPQ2d 1641 (Fed. Cir. 1998); In re Clement, 131 F.3d 1464, 45 USPQ2d 1161 (Fed. Cir. 1997); Ball Corp. v. United States, 729 F.2d 1429, 1436, 221 USPQ 289, 295 (Fed. Cir. 1984). A broadening aspect is present in the reissue which was not present in the application for patent. The record of the application for the patent shows that the broadening aspect (in the reissue) relates to claimed subject matter that applicant previously surrendered during the prosecution of the application. Accordingly, the narrow scope of the claims in the patent was not an error within the meaning of 35 U.S.C. 251, and the broader scope of claim subject matter surrendered in the application for the patent cannot be recaptured by the filing of the present reissue application.
It is noted that the following is the three step test for determining recapture in reissue applications (see: MPEP 1412.02(I)):
“(1) first, we determine whether, and in what respect, the reissue claims are broader in scope than the original patent claims;
(2) next, we determine whether the broader aspects of the reissue claims relate to subject matter surrendered in the original prosecution; and
(3) finally, we determine whether the reissue claims were materially narrowed in other respects, so that the claims may not have been enlarged, and hence avoid the recapture rule.”
(Step 1: MPEP 1412.02(A)) In the instant case, the Applicant seeks to broaden original independent claims 36, 44 and 52 by deleting/omitting at least the patent claim language requiring, “a monitoring agent that executes on the monitored computing system and that is configured | to: obtain counter values from a monitored application executing on the monitored. computing system, wherein the counter values are provided by counter objects that are modified by_ instrumentation code in the monitored application and that represent one or more of: a number of operations performed by the monitored application, a response time of the monitored application, a. processing time of the monitored application, or a throughput of the monitored application: and transmit the counter values as the first series of data items to the monitoring computing system for storage on the first randomly selected data store”.
(Step 2: MPEP 1412.02(B)) The record of the prior Application No. 14/749,395, which resulted in the US Patent No. 9,983,968, prosecution history indicates that in a Response filed on December 8th 2017, the Applicant amended the claims in such a manner as to rewrite previously objected dependent claims, into the independent form. Accordingly, the newly amended claims recited the allowable subject matter as explained in the step 1 above, hence they overcame the cited prior art (Gavay et al (US Patent No. 9,043,184), Bakalov (US Patent No. 8,744,806) and Mitchell et al (US Publication No. 2013/0159493)).
Subject matter is previously surrendered during the prosecution of the original application by reliance by Applicant to define the original patent claims over the art by presentation of new/amended claims to define over the art, or an argument/statement by applicant that a limitation of the claim(s) defines over the art. It is noted that a patent owner (reissue applicant) is bound by the argument that applicant relied upon to overcome an art rejection in the original application for the patent to be reissued (see remarks filed on December 8, 2017, pages 9 and 10, regardless of whether the Office adopted the argument in allowing the claims. Therefore, in the instant case the claim limitations of “a monitoring agent that executes on the monitored computing system and that is configured | to: obtain counter values from a monitored application executing on the monitored. computing system, wherein the counter values are provided by counter objects that are modified by_ instrumentation code in the monitored application and that represent one or more of: a number of operations performed by the monitored application, a response time of the monitored application, a. processing time of the monitored application, or a throughput of the monitored application: and transmit the counter values as the first series of data items to the monitoring computing system for storage on the first randomly selected data store” are surrendered subject matter and some of the broadening of the reissue claims, as noted above, are clearly in the area of the surrendered subject matter.
(Step 3: MPEP 1412.02(C)) It is noted that the reissue claims were not materially narrowed in other respects, so that the claims may not have been enlarged, and hence avoid the recapture rule. When analyzing a reissue claim for the possibility of impermissible recapture, there are two different types of analysis that must be performed. If the reissue claim “fails” either analysis, recapture exists. First, claim scope that was canceled or amended is deemed surrendered and therefore barred from reissue. Clement, 131 F.3d at 1470, 45 USPQ2d at 1165. Second, it must be determined whether the reissue claim omits or broadens any limitation that was added or argued during the original prosecution to overcome an art rejection. Such an omission in a reissue claim, even if it is accompanied by other limitations making the reissue claim narrower than the patent claim in other aspects, is impermissible recapture. Pannu, 258 F.3d at 1371-72, 59 USPQ2d at 1600. The surrendered subject matter, noted above, has been entirely eliminated from new independent reissue claims 36, 44 and 52. It is noted that the added limitations do not materially narrow the patent claims to avoid recapture.
Therefore, broadened independent reissue claims 36, 44 and 52 attempt impermissible recapture of subject matter surrendered during prosecution of the 14/749,395 application. Dependent reissue claims dependent upon the independent claims mentioned above are rejected for similar rationale.
Claim Objections
The 37 CFR 1.173 clearly states:
“(c) Status of claims and support for claim changes. Whenever there is an amendment to the claims pursuant to paragraph (b) of this section, there must also be supplied, on pages separate from the pages containing the changes, the status (i.e., pending or canceled), as of the date of the amendment, of all patent claims and of all added claims, and an explanation of the support in the disclosure of the patent for the changes made to the claims”.
The Patent Owner, however, has introduced twenty new claims without explaining or showing any support for the limitation in the original disclosure.
Consent of Assignee
This application is objected to under 37 CFR 1.172(a) as lacking the written consent of all assignees owning an undivided interest in the patent. The consent of the assignee must be in compliance with 37 CFR 1.172. See MPEP § 1410.01 and 1410.02.
More specifically 1410.02 recites the following:
“The consent of assignee must be signed by a party authorized to act on behalf of the assignee. For applications filed on or after September 16, 2012, the consent may be signed by the assignee or a patent practitioner of record. For applications filed before September 16, 2012, the consent must be signed by the assignee. Where the assignee is a juristic entity, the consent may be signed by a person in the organization having apparent authority to sign on behalf of the organization, or a person who makes a statement of authorization to act on behalf of the assignee. For a discussion of parties authorized to act on behalf of the assignee, see MPEP § 325 (for applications filed on or after September 16, 2012) and MPEP § 324 (for applications filed before September 16, 2012)”.
The corrected copy of the Consent signed by an authorized party must be filed.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 36-43 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claims contain subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
More specifically, the Examiner was unable to locate an algorithm for:
“performing sequential processing of the time-based performance-related data, wherein at least one portion of the time-based performance-related data includes at least another portion of the time-based performance-related data;
determining, using the at least one processor, one or more metrics associated with the computing system based on the sequential processing of the time-based performance-related data”.
The MPEP 2161.01 clearly recites:
“Similarly, original claims may lack written description when the claims define the invention in functional language specifying a desired result but the specification does not sufficiently describe how the function is performed or the result is achieved. For software, this can occur when the algorithm or steps/procedure for performing the computer function are not explained at all or are not explained in sufficient detail (simply restating the function recited in the claim is not necessarily sufficient). In other words, the algorithm or steps/procedure taken to perform the function must be described with sufficient detail so that one of ordinary skill in the art would understand how the inventor intended the function to be performed. See MPEP §§ 2163.02 and 2181, subsection IV”.
In this instance, the Examiner was unable to locate an algorithm how the sequential processing can be achieved or how one more metric is determined.
Claim Interpretation
The examiner finds several instances where the claim term explicitly includes functional language which would invoke 35 U.S.C. § 112, sixth paragraph.
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
Use of the word “means” (or “step for”) in a claim with functional language creates a rebuttable presumption that the claim element is to be treated in accordance with 35 U.S.C. § 112(f) (pre-AIA 35 U.S.C. 112, sixth paragraph). The presumption that § 112(f) (pre-AIA § 112, sixth paragraph) is invoked is rebutted when the function is recited with sufficient structure, material, or acts within the claim itself to entirely perform the recited function.
Absence of the word “means” (or “step for”) in a claim creates a rebuttable presumption that the claim element is not to be treated in accordance with 35 U.S.C. § 112(f) (pre-AIA 35 U.S.C. 112, sixth paragraph). The presumption that § 112(f) (pre-AIA § 112, sixth paragraph) is not invoked is rebutted when the claim element recites function but fails to recite sufficiently definite structure, material or acts to perform that function.
The following claim limitations have been interpreted under 35 U.S.C. § 112(f), because they use a generic placeholder coupled with functional language without reciting sufficient structure to achieve the function. Furthermore, the generic placeholder is not preceded by structural modifier:
Claim 36 recites “at least one processor” (i.e. general placeholder) performing the following functions:
“obtaining a time-based performance-related data from a computing system, wherein the time-based performance-related data reflects performance of the computing system during a predetermined period of time;
performing sequential processing of the time-based performance-related data, wherein at least one portion of the time-based performance-related data includes at least another portion of the time-based performance-related data;
determining, using the at least one processor, one or more metrics associated with the computing system based on the sequential processing of the time-based performance-related data; and
providing, using the at least one processor, at least one of the sequentially processed time- based performance-related data and the one or metrics to an external service”.
Similarly, claims 42 and 52 teach “processing circuitry” performing the steps as recited above.
Since the claim limitations invoke 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, claims 36-55 have been interpreted to cover the corresponding structure described in the specification that achieves the claimed function, and equivalents thereof.
Below, the steps/functions are mapped to the corresponding structure as disclosed in the original disclosure:
“obtaining a time-based performance-related data from a computing system, wherein the time-based performance-related data reflects performance of the computing system during a predetermined period of time” (Figure 2A and column 4, lines 59-67, wherein monitoring agent 210a, 210b or 210c collects the data that reflects performance of the associated computing system),
“performing sequential processing of the time-based performance-related data, wherein at least one portion of the time-based performance-related data includes at least another portion of the time-based performance-related data” (algorithm or structure for performing this function is not sufficiently disclosed in the specification)
“determining, using the at least one processor, one or more metrics associated with the computing system based on the sequential processing of the time-based performance-related data” (algorithm or structure for performing this function is not sufficiently disclosed in the specification)
“providing, using the at least one processor, at least one of the sequentially processed time- based performance-related data and the one or metrics to an external service” (Figure 2B, element 256, Figure 4A, step 4104 and column 11, lines 36-44)
For a computer-implemented means-plus-function claim limitation invoking 35 U.S.C. § 112, sixth paragraph, a general purpose computer is usually sufficient for the corresponding structure for performing a general computing function (e.g., “means for storing data”), but the corresponding structure for performing a specific function is required to be more than simply a general purpose computer or microprocessor. In In re Katz Interactive Call Processing Patent Litigation, 639 F.3d 1303, 1316 (Fed. Cir. 2011), the court stated:
Those cases involved specific functions that would need to be implemented by programming a general purpose computer to convert it into a special purpose computer capable of performing those specified functions. … By contrast, in the seven claims identified above, Katz has not claimed a specific function performed by a special purpose computer, but has simply recited the claimed functions of ‘processing,’ ‘receiving,’ and ‘storing.’ Absent a possible narrower construction of the terms ‘processing,’ ‘receiving,’ and ‘storing,’ discussed below, those functions can be achieved by any general purpose computer without special programming. As such, it was not necessary to disclose more structure than the general purpose processor that performs those functions. Those seven claims do not run afoul of the rule against purely functional claiming, because the functions of ‘processing,’ ‘receiving,’ and ‘storing’ are coextensive with the structure disclosed, i.e., a general purpose processor.).
To claim a means for performing a specific computer-implemented function and then to disclose only a general purpose computer as the structure designed to perform that function amounts to pure functional claiming. Aristocrat, 521 F.3d 1328 at 1333. In this instance, the structure corresponding to a 35 U.S.C. § 112, sixth paragraph claim limitation for a computer-implemented function must include the algorithm needed to transform the general purpose computer or microprocessor disclosed in the specification. Aristocrat, 521 F.3d at 1333; Finisar Corp. v. DirecTV Group, Inc., 523 F.3d 1323, 1340 (Fed. Cir. 2008); WMS Gaming, Inc. v. Int’l Game Tech., 184 F.3d 1339, 1349 (Fed. Cir. 1999). The corresponding structure is not simply a general purpose computer by itself but the special purpose computer as programmed to perform the disclosed algorithm. Aristocrat, 521 F.3d at 1333. Thus, the specification must sufficiently disclose an algorithm to transform a general purpose microprocessor to the special purpose computer. Aristocrat, 521 F.3d at 1338 (“Aristocrat was not required to produce a listing of source code or a highly detailed description of the algorithm to be used to achieve the claimed functions in order to satisfy 35 U.S.C. § 112 P 6. It was required, however, to at least disclose the algorithm that transforms the general purpose microprocessor to a ‘special purpose computer programmed to perform the disclosed algorithm.’ WMS Gaming, 184 F.3d at 1349.”) An algorithm is defined, for example, as “a finite sequence of steps for solving a logical or mathematical problem or performing a task.” Microsoft Computer Dictionary, Microsoft Press, 5th edition, 2002. Applicant may express the algorithm in any understandable terms including as a mathematical formula, in prose, in a flow chart, or “in any other manner that provides sufficient structure.” Finisar, 523 F.3d at 1340; see also Intel Corp. v. VIA Techs., Inc., 319 F.3d 1357, 1366 (Fed. Cir. 2003); In re Dossel, 115 F.3d 942, 946-47 (Fed. Cir.1997); Typhoon Touch Inc. v. Dell Inc., 659 F.3d 1376, 1385 (Fed. Cir. 2011); In re Aoyama, 656 F.3d 1293, 1306 (Fed. Cir. 2011).
If applicant wishes to provide further explanation or dispute the examiner’s interpretation of the corresponding structure, applicant must identify the corresponding structure with reference to the specification by page and line number, and to the drawing, if any, by reference characters in response to this Office action.
If applicant does not intend to have the claim limitation(s) treated under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112 , sixth paragraph, applicant may amend the claim(s) so that it/they will clearly not invoke 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, or present a sufficient showing that the claim recites/recite sufficient structure, material, or acts for performing the claimed function to preclude application of 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
For more information, see MPEP §§ 2173 and 2181 et seq. and Supplementary Examination Guidelines for Determining Compliance With 35 U.S.C. 112 and for Treatment of Related Issues in Patent Applications, 76 FR 7162, 7167 (Feb. 9, 2011).
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 44-55 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.
Claims 44 and 52 recite “at least one portion of the time-based performance-related data includes at least another portion of the time-based performance-related data”, it is unclear however what is the “portion”. Since metes and bounds of the claimed invention cannot be ascertained, the claims are deemed indefinite.
Claims 44 and 52 recite “performing sequential processing of the time-based performance-related data, wherein at least one portion of the time-based performance-related data includes at least another portion of the time-based performance-related data” and “determining, using the at least one processor, one or more metrics associated with the computing system based on the sequential processing of the time-based performance-related data”, however Examiner is not able to determine metes and bounds of the claimed invention because it is unclear for the functions of performing and determining involve.
In order to advance the prosecution, the Examiner interprets performing sequential processing as gathering time related information pertaining to operations and the function of determining as determining whether the data is related to performance metric like count values1.
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.
Claims 36-41, 43-49 and 51-54 are rejected under 35 U.S.C. 103 as being unpatentable over Wang et al (US Patent No. 9,507,887), hereinafter referred to as Wang, in view of Osiecki et al (US Patent No. 9,563,531), hereinafter referred to as Osiecki.
With respect to claims 36, 44, 52, Wang teaches a computer-implemented method, comprising: obtaining, using at least one processor, a time-based performance-related data from a computing system, wherein the time-based performance-related data reflects performance of the computing system during a predetermined period of time (7:59 – 8:2, wherein performance data is gathered and wherein the data is time-based performance as explained in 10:44-57, wherein monitoring agent corresponds to element 134 in Figure 3); performing, using the at least one processor, sequential processing of the time-based performance-related data, wherein at least one portion of the time-based performance-related data includes at least another portion of the time-based performance-related data (24:51-56 and 25:35-51, wherein data associated with one sample period (i.e. time based performance related data) may include data associated with another sampling period (i.e. “n-1”, another portion of the time-based performance related data, wherein “capture service 252” corresponds to optimizer 138 in Figure 3); determining, using the at least one processor, one or more metrics associated with the computing system based on the sequential processing of the time-based performance-related data (10:27-43, wherein periods n-1 and n are sequential).
Wang however does not explicitly recite providing, using the at least one processor, at least one of the sequentially processed time-based performance-related data and the one or metrics to an external service.
On the other hand, Osiecki teaches the system for storage analysis wherein time-based performance-related data and the one or metrics is provided to an external service (6:49-55, wherein as illustrated in Figure 1, client 113 is external to the monitoring system).
It would have been obvious to one of ordinary skill in the art at the time the invention was made to combine teaching of Osiecki about transmitting performance data to an external service, with Wang’s storage monitoring system, in order to create a robust system for remote monitoring and maintenance.
With respect to claims 37, 45 and 53, Wang teaches the method, wherein time-based performance-related data includes a time series data reflecting performance of the computing system during one or more time intervals within the predetermined period of time (25:25-44, wherein sample period corresponds to a predetermined period of time and the time series data corresponds to gathered data about operations performed during that time period).
With respect to claims 38, 46, Wang teaches the method, wherein the obtaining includes obtaining the time-based performance-related data from a monitoring agent executed in the computing system (Figure 3, wherein optimizer 138 obtains data from performance monitoring software (i.e. monitoring agent)).
With respect to claims 39 and 47, Wang teaches the method, wherein the monitoring agent is configured to obtain one or more counter values from one or more monitored applications executing on the monitored computing system (25:35-44, 43:55 – 44:2 and 10:17-21, wherein monitoring software (i.e. monitoring agent) gather information about the storage including count information).
With respect to claims 40, 48 and 54, Wang teaches the method, wherein the one or more counter values include at least one of: a number of operations performed by the monitored application, a response time of the monitored application, a processing time of the monitored application, a throughput of the monitored application, and any combination thereof (25:35-44, wherein count of each type of operation is monitored).
With respect to claims 41 and 49, Wang teaches the method, wherein the sequential processing of the time-based performance-related data includes sequentially storing the time-based performance related data (25:45-51, wherein sequential series of data are stored).
With respect to claims 43 and 51, Osiecki further teaches that the external service includes at least one of the following: a dashboard service, a report service, a health monitoring service, and any combination thereof (6:56-7:3).
Claims 42, 50 and 55 are rejected under 35 U.S.C. 103 as being unpatentable over Wang (US Patent No. 9,507,887), in view of in view of Osiecki (US Patent No. 9,563,531) and further in view of Cattaneo et al (US Patent No. 9,921,934), hereinafter referred to as Cattaneo.
With respect to claims 42, 50 and 55, Olson further teaches the method, further comprising receiving a query on the stored time-based performance related data; generating, in response to the query, the time-based performance related data; and providing the response to the query (7:41-51, wherein request corresponds to a query).
Wang and Olson, however do not explicitly recite that a snapshot is generated from the performance and providing the snapshot in response to the query.
On the other hand, Cattaneo teaches a storage system wherein in response to a request for metric information, the system may issue s snapshot of the metric data (6:36-59).
It would have been obvious to one of ordinary skill in the art at the time the invention was filed to include a snapshot of a metric data, as taught by Cattaneo, in modified Wang’s data storage processing system, in order to efficiently communicate metric information to the requesting party.
Inquiry
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANGELA M LIE whose telephone number is (571)272-8445. The examiner can normally be reached on M-F, 5:30 am - 2:00 pm.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Andrew Fischer can be reached on 571-272-6779.
All correspondence relating to this reissue proceeding should be directed:
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/ANGELA M LIE/Primary Examiner, Art Unit 3992
Conferees:
/LUKE S WASSUM/ Primary Examiner, Art Unit 3992
/ANDREW J. FISCHER/ Supervisory Patent Examiner, Art Unit 3992
1 This interpretation is consistent with the ‘968 disclosure 5:56-6:3