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 .
Response to Arguments
Applicant’s arguments, see pages 9-13, filed January 02, 2026, with respect to claims 21-40 as rejected under 35 USC 103(a) have been fully considered and are persuasive. The rejection of claims 21-40 under 35 USC 103(a) has been withdrawn.
Claim Rejections - 35 USC § 112
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.
Claim 36 is 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.
RE claim 36, the parent claim 35 appears to have been amended to incorporate all features of this claim. Though worded differently when compared, Examiner believes claim 36 merely repeats the same scope of features without further limitation. In both the newly added features to claim 35 with respect to power consumption and all the limitations of 36, they are both directed to the same determination and selection of a communication channel with the least power consumption of the available channels if the urgency threshold is not met. Examiner cannot identify anything further limiting in claim 36.
Applicant may cancel the claim, amend the claim to place the claim in proper dependent form, rewrite the claim in independent form, or present a sufficient showing that the dependent claim complies with the statutory requirements.
Double Patenting
The non-statutory 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 non-statutory 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 non-statutory 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 non-statutory 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 21, 22, 27, 28, 29, 35 and 36 are rejected on the ground of non-statutory double patenting as being unpatentable over claims 1, 2, 3, 8, 9, 10, 14, 15, 18, 19 and 20 of U.S. Patent No. 11,956,813 (The Argenti Patent hereafter). Although the claims at issue are not identical, they are not patentably distinct from each other because the claims are anticipated by the Argenti Patent for the reasons set forth a below.
RE claim 21, the Argenti Patent claims a system, comprising: one or more computing devices of a provider network comprising respective processors and memory to implement: receive one or more metrics associated with respective communication channels that an edge device is configured to use (Claim 1: “A system, comprising: one or more computing devices of a provider network comprising respective processors and memory to implement: transmit one or more portions of an update to an edge device of a remote network using one of a plurality of communication channels that the edge device is configured to use; “) ; analyze the one or more metrics associated with the respective communication channels to determine available bandwidth of the respective communication channels (Claim 1: “analyze the one or more metrics associated with different channels of the respective communication channels; and based on the analysis of the one or more metrics associated with different channels of the respective communication channels:”); determine that an urgency level of an update to be applied to an edge device is above a threshold level; and based on the determination, by the one or more computing devices of the provider network, that the urgency level of the update to be applied to the edge device is above the threshold level: select, from among the respective communication channels that the edge device is configured to use for communication with the provider network that is remote from the edge device, a communication channel that has the highest available bandwidth of the respective communication channels (Claim 3: “wherein an urgency level of the update is above a threshold level, and wherein to select the other communication channel, the one or more computing devices implement: select the other communication channel with the greater available bandwidth based on the analysis and on an indication that the urgency level of the update is above the threshold level.”); and transmit one or more portions of the update to the edge device using the selected channel (Claim 2: determine that available bandwidth to transmit data using the other communication channel is greater than available bandwidth to transmit data using the communication channel; and wherein to select the other communication channel, the one or more computing devices implement: based on the determination that the available bandwidth to transmit data using the other communication channel is greater, select the other communication channel”).
As set forth above claim 3, which includes claims 1 and 2, of the Argenti Patent merely anticipates the claim of the instant application as it is directed to some identical features while merely eliminating others, resulting in a mere broadening of the Patent.
RE claim 22, the Argenti Patent claims system as recited in claim 21 as set forth above. Note that the Argenti Patent further claims wherein to analyze the one or more metrics, the one or more computing devices implement: determine that available bandwidth to transmit data using the selected channel is greater than available bandwidth to transmit data using remaining ones of the respective communication channels (Claim 2 claims identical features).
RE claim 27, the Argenti Patent claims system as recited in claim 21 as set forth above. Note that the Argenti Patent further claims wherein the one or more computing devices further implement: receive one or more indications from the edge device that the transmission of at least one of the one or more portions of the update using the selected channel was successful (Claim 7 claims identical features).
RE claim 28, the Argenti Patent claims a method, comprising: performing, by one or more computing devices of a provider network: receiving one or more metrics associated with respective communication channels that an edge device is configured to use; analyzing the one or more metrics associated with the respective communication channels to determine available bandwidth of the respective communication channels (Claim 8: “performing, by one or more computing devices of a provider network: transmitting one or more portions of an update to an edge device of a remote network using one of a plurality of communication channels that the edge device is configured to use; receiving one or more metrics associated with respective communication channels of the plurality of communication channels;”); determining that an urgency level of an update to be applied to an edge device is above a threshold level; and based on the determination, by the one or more computing devices of the provider network, that the urgency level of the update to be applied to the edge device is above the threshold level; and based on the determination that the urgency level is above the threshold level (Claim 10:” wherein an urgency level of the update is above a threshold level, and wherein selecting the other communication channel comprises: selecting the other communication channel with the greater available bandwidth based on the analysis and on an indication that the urgency level of the update is above the threshold level.”): selecting, from among the respective communication channels that the edge device is configured to use for communication with the provider network that is remote from the edge device, a communication channel that has the highest available bandwidth of the respective communication channels; and transmitting one or more portions of the update to the edge device using the selected channel (Claim 8: “wherein analyzing the one or more metrics comprises determining that available bandwidth to transmit data using the other communication channel is greater than available bandwidth to transmit data using the communication channel, and wherein selecting the other communication channel comprises: based on the determining that the available bandwidth to transmit data using the other communication channel is greater, selecting the other communication channel.”).
As set forth above claim 10, which includes claims 8 and 9, of the Argenti Patent merely anticipates the claim of the instant application as it is directed to some identical features while merely eliminating others, resulting in a mere broadening of the Patent.
RE claim 29, the Argenti Patent claims the method as recited in claim 28 as set forth above. Note that the Argenti Patent further claims wherein analyzing the one or more metrics comprises: determining that available bandwidth to transmit data using the selected channel is greater than available bandwidth to transmit data using remaining ones of the respective communication channels (Claim 9).
RE claim 35, the Argenti Patent claims one or more non-transitory computer-accessible storage media storing program instructions that when executed on or across one or more processors: receive one or more metrics associated with respective communication channels that an edge device is configured to use (Claim 15: “One or more non-transitory computer-accessible storage media storing program instructions that when executed on or across one or more processors: transmit one or more portions of an update to an edge device of a remote network using one of a plurality of communication channels that the edge device is configured to use; receive one or more metrics associated with respective communication channels of the plurality of communication channels;”); analyze the one or more metrics associated with the respective communication channels to determine an amount of power consumption at the edge device using the respective communication channels (Claim 15 “analyze the one or more metrics associated with different channels of the respective communication channels; and based on the analysis of the one or more metrics associated with different channels of the respective communication channels:”); determine that an urgency level of an update to be applied to an edge device is below a threshold level; and based on the determination, by the one or more processors of the provider network, that the urgency level of the update to be applied to the edge device is below the threshold level: select, from among the respective communication channels that the edge device is configured to use for communication with the provider network that is remote from the edge device, a communication channel that uses the least amount of power consumption at the edge device of the respective communication channels; and transmit one or more portions of the update to the edge device using the selected channel (Claim 18, which depends upon and thus includes claim 15: “wherein to analyze the one or more metrics, the program instructions when executed on or across the one or more processors: determine that an amount of power consumed by the edge device to receive data using the other communication channel is less than an amount of power consumed by the edge device to receive data using the communication channel; and wherein to select the other communication channel, the program instructions when executed on or across the one or more processors: based on the determination that the amount of power consumed by the edge device to receive data using the other communication channel is less, select the other communication channel.” Claim 19, which depends upon and therefore includes claims 18 and further 15: “wherein an urgency level of the update is below a threshold level, and wherein to select the other communication channel, the program instructions when executed on or across the one or more processors: select the other communication channel based on the analysis and on an indication that the urgency level of the update is below the threshold level”).
As set forth above claim 19, which includes claims 15 and 18, of the Argenti Patent merely anticipates the claim of the instant application as it is directed to some identical features while merely eliminating others, resulting in a mere rewording and broadening of the Patent.
RE claim 36, the Argenti Patent claims the one or more storage media as recited in claim 35 as set forth above. Note that the Argenti Patent further claims wherein to analyze the one or more metrics, the program instructions when executed on or across the one or more processors: determine that the amount of power consumption at the edge device using the selected channel is lower than the amount of power consumption at the edge device using remaining ones of the respective communication channels (Claim 18).
Claims 33, 38 and 39 are rejected on the ground of non-statutory double patenting as being unpatentable over claims 8-10 of the Argenti patent in view of Nogueira-Nine (US 2018/0024828, Nogueira hereafter).
RE claims 33 and 39, the Argenti Patent claims the system as recited in claim 21 and method as recited in claim 28 as set forth above. The Argenti patent doesn’t explicitly claim wherein the one or more computing devices further implement: receive one or more indications from the edge device that the transmission of at least one of the one or more portions of the update using the selected channel was successful.
However, Nogueira teaches wherein the one or more computing devices further implement: receive one or more indications from the edge device that the transmission of at least one of the one or more portions of the update using the selected channel was successful (Paragraphs 30-32, each device completes reception and either indicates the packets that are missing or successful reception).
It would have been obvious to one having ordinary skill on the art before the effective filing date of the claimed invention to combine the system and method of the Argenti Patent with the teachings of Nogueira since such a modification would have involved the mere application of a known technique to a piece of prior art ready for improvement.
Where a claimed improvement on a device or apparatus is no more than "the simple substitution of one known element for another or the mere application of a known technique to a piece of prior art ready for improvement," the claim is unpatentable under 35 U.S.C. 103(a). Ex Parte Smith, 83 USPQ.2d 1509, 1518-19 (BPAI, 2007) (citing KSR v. Teleflex, 127 S.Ct. 1727, 1740, 82 USPQ2d 1385, 1396 (2007)).
RE claim 38, the Argenti Patent claims the one or more storage media as recited in claim 35 as set forth above. The Argenti patent doesn’t explicitly claim wherein the update is to be applied to update firmware at the edge device.
However, Nogueira teaches wherein the update is to be applied to update firmware at the edge device (Paragraph 28-29 the devices receive the firmware packets).
It would have been obvious to one having ordinary skill on the art before the effective filing date of the claimed invention to combine the media of the Argenti Patent with the teachings of Nogueira since such a modification would have involved the mere application of a known technique to a piece of prior art ready for improvement.
Where a claimed improvement on a device or apparatus is no more than "the simple substitution of one known element for another or the mere application of a known technique to a piece of prior art ready for improvement," the claim is unpatentable under 35 U.S.C. 103(a). Ex Parte Smith, 83 USPQ.2d 1509, 1518-19 (BPAI, 2007) (citing KSR v. Teleflex, 127 S.Ct. 1727, 1740, 82 USPQ2d 1385, 1396 (2007)).
Claims 23 ,24, 30 and 31 are rejected on the ground of non-statutory double patenting as being unpatentable over claims 1, 2, 3, 8, 9, 10 and 14 of the Argenti Patent in view of Oprescu-Surcobe et al. (US 2007/0091836, Oprescu hereafter).
RE claims 23 and 30, the Argenti Patent claims the system as recited in claim 21 and method as recited in claim 28 as set forth above. The Argenti Patent does not claim wherein to select the communication channel that has the highest available bandwidth of the respective communication channels, the one or more computing devices implement: override one or more criteria to select from among the respective communication channels.
However, Oprescu teaches wherein to select the communication channel that has the highest available bandwidth of the respective communication channels, the one or more computing devices implement: override one or more criteria to select from among the respective communication channels (Paragraph 42 teaches a Services Battery Manager shown in Figure 1 to reside in the provider network side to perform one or more service adjustments that may be made to conserve battery life of a MS. Among them is to redirect the MS to a different and more power efficient network, telecommunication system or technology or a network that that access points is closer in range to the MS).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the system and method Argenti with the teachings of Oprescu in order to extend the battery life of an edge device.
RE claims 24 and 31, Nogueira in view of Ling, in view of Blair and further in view of Oprescu discloses the system as recited in claim 23 and method as recited in claim 30 as set forth above. Note that Oprescu further teaches wherein the one or more overridden criteria comprise criteria to select a channel with lower power consumption than one or more other channels of the respective communication channels (Paragraph 42 teaches a Services Battery Manager shown in Figure 1 to reside in the provider network side to perform one or more service adjustments that may be made to conserve battery life of a MS. Among them is to redirect the MS to a different and more power efficient network, telecommunication system or technology or a network that that access points is closer in range to the MS).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the system and method Nogueira in view of Ling and further in view of Blair with the teachings of Oprescu in order to extend the battery life of an edge device.
Claim 25 is rejected on the ground of non-statutory double patenting as being unpatentable over claims 1-3 of the Argenti Patent in view of Oprescu and further in view of Shelar et al. (US 2020/0014619, Shelar hereafter).
RE claim 25, the Argenti Patent in view of Oprescu claims the system as recited in claim 23 as set forth above. The Argenti Patent does not claim wherein the one or more overridden criteria comprise criteria to select a channel that has a transmission failure rate below a threshold rate.
However, Shelar teaches wherein the one or more overridden criteria comprise criteria to select a channel that has a transmission failure rate below a threshold rate (Paragraphs 128 and 139 teaches a path selector for transmitting packets by choosing a link having the highest quality using a combination of metrics comprised of “highest network bandwidth, lowest latency, least variation in packet, lowest packet loss rate, and lowest error rate, among others, or any combination thereof.”).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the system of Argenti in view of Oprescu with the teachings of Shelar in order to improve speed and reliability of packet delivery to a destination.
Claims 26 and 32 are rejected on the ground of non-statutory double patenting as being unpatentable over claims 1, 2, 3, 8, 9, 10 and 14 of the Argenti Patent in view of Oprescu, in view of Nogueira and further in view of Kamat et al. (US 2007/0130457, Kamat hereafter).
RE claims 26 and 32, the Argenti Patent in view of Oprescu claims the system as recited in claim 23 and method as recited in claim 28 as set forth above. The Argenti Patent in view of Oprescu does not claim wherein the update is to be applied to update software or firmware at the edge device.
However, Nogueira teaches wherein the update is to be applied to update firmware at the edge device (Paragraph 28-29 the devices receive the firmware packets).
It would have been obvious to one having ordinary skill on the art before the effective filing date of the claimed invention to combine the media of the Argenti Patent in view of Oprescu with the teachings of Nogueira since such a modification would have involved the mere application of a known technique to a piece of prior art ready for improvement.
Where a claimed improvement on a device or apparatus is no more than "the simple substitution of one known element for another or the mere application of a known technique to a piece of prior art ready for improvement," the claim is unpatentable under 35 U.S.C. 103(a). Ex Parte Smith, 83 USPQ.2d 1509, 1518-19 (BPAI, 2007) (citing KSR v. Teleflex, 127 S.Ct. 1727, 1740, 82 USPQ2d 1385, 1396 (2007)).
The Argenti Patent in view of Oprescu and further in view of Nogueira does not explicitly disclose transmitting software updates.
However, Kamat teaches transmitting software updates (Paragraph 16, “remote management features include enabling system administrators to push software upgrades, policy updates, back-up operations, and the like to remote endpoint devices even when the remote endpoint devices are not powered-on, enabling end users to schedule software upgrades, policy updates, back-up operations when the remote endpoint devices are not powered-on, and the like, as well as various combinations thereof. In one embodiment, wireless network optimization features include analyzing requested information transfers for distinguishing between delay-sensitive information transfers requiring instant responses (e.g., audio conversations) and delay-insensitive transfers not requiring instant responses (e.g., email transfers, data backup transfers, and the like), and delaying delay-insensitive information transfers in response to various conditions (e.g., until a wireless signal quality satisfies a threshold, when a threshold number of other clients are being served, and the like), and the like.”).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the system and method of the Argenti Patent in view of Oprescu and further in view of Nogueira with the teachings of Kamat since such a modification would have involved the mere application of a known technique to a piece of prior art ready for improvement.
Where a claimed improvement on a device or apparatus is no more than "the simple substitution of one known element for another or the mere application of a known technique to a piece of prior art ready for improvement," the claim is unpatentable under 35 U.S.C. 103(a). Ex Parte Smith, 83 USPQ.2d 1509, 1518-19 (BPAI, 2007) (citing KSR v. Teleflex, 127 S.Ct. 1727, 1740, 82 USPQ2d 1385, 1396 (2007)).
Claim 37 is rejected on the ground of non-statutory double patenting as being unpatentable over claims 8-10 of the Argenti patent in view of Kamat.
RE claim 37, the Argenti Patent claims the one or more storage media as recited in claim 35 as set forth above. The Argenti Patent does not explicitly claim wherein the update is to be applied to update software at the edge device.
However, Kamat teaches wherein the update is to be applied to update software at the edge device (Paragraph 16, “remote management features include enabling system administrators to push software upgrades, policy updates, back-up operations, and the like to remote endpoint devices even when the remote endpoint devices are not powered-on, enabling end users to schedule software upgrades, policy updates, back-up operations when the remote endpoint devices are not powered-on, and the like, as well as various combinations thereof. In one embodiment, wireless network optimization features include analyzing requested information transfers for distinguishing between delay-sensitive information transfers requiring instant responses (e.g., audio conversations) and delay-insensitive transfers not requiring instant responses (e.g., email transfers, data backup transfers, and the like), and delaying delay-insensitive information transfers in response to various conditions (e.g., until a wireless signal quality satisfies a threshold, when a threshold number of other clients are being served, and the like), and the like.”).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the media of the Argenti Patent with the teachings of Kamat since such a modification would have involved the mere application of a known technique to a piece of prior art ready for improvement.
Where a claimed improvement on a device or apparatus is no more than "the simple substitution of one known element for another or the mere application of a known technique to a piece of prior art ready for improvement," the claim is unpatentable under 35 U.S.C. 103(a). Ex Parte Smith, 83 USPQ.2d 1509, 1518-19 (BPAI, 2007) (citing KSR v. Teleflex, 127 S.Ct. 1727, 1740, 82 USPQ2d 1385, 1396 (2007)).
Claims 34 and 40 are rejected on the ground of non-statutory double patenting as being unpatentable over claims 8-10, 14-15 and 19-20 of the Argenti Patent in view of McDonald (US 2012/0259549).
RE claims 34 and 40, the Argenti Patent claims the method as recited in claim 28 and one or more storage media as recited in claim 35 as set forth above. The Argenti Patent further claims wherein transmitting one or more portions of the update to the edge device using the selected channel comprises: uploading the one or more portions of the update to a drone; and transmitting the one or more portions of the update from the drone to the edge device using the selected channel (Claims 14 and 20).
The Argenti Patent does not explicitly claim communication via a satellite.
However, McDonald teaches communication via a satellite (Paragraph 39 teaches a ground station communicating with an aircraft. If the aircraft is out of range of the ground station, communication between the two may instead be performed via a satellite relay).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the method and media of Argenti with the teachings of McDonald in order to provide further enhanced data coverage in remote locations.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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 James P Duffy whose telephone number is (571)270-7516. The examiner can normally be reached Tuesday-Friday, 9am-6pm EST.
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/James P Duffy/Primary Examiner, Art Unit 2461
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