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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed 1/9/2026 has been entered.
Response to Arguments
Applicant’s arguments filed 1/9/2026 have been fully considered. Applicant argues the prior art fails to teach or suggest “determining…a change in state information of a communication channel…” However, McAlister discloses the features in at least ¶ 16-19 and ¶ 56-61 which describe the primary host machine detecting a change in state of the communication channel between replication machines.
Applicant’s further arguments are moot in view of the new grounds of rejection presented herein.
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 rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-18 of U.S. Patent No. 11,968,080. Although the claims at issue are not identical, they are not patentably distinct from each other because the patent contains all the elements of the instant applicant and/or the equivalents.
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.
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-7, 9-18, 20 are rejected under 35 U.S.C. 103 as being unpatentable over 20110099420 to MacDonald McAlister in view of US 20220066883 to Wang in view of US 10,855,754 to Mercier, in view of US 11,025,483 to Hashmi.
Regarding claim 1,
MacDonald McAlister teaches a method comprising:
determining, by a primary host machine included in a cloud service provider infrastructure, a change in a state information of a communication channel established between the primary host machine and a customer premise equipment that is included in a customer on- premise network (fig. 4, communication channel between customer equipment 402 and cloud-based endpoint 410/426; ¶ 16-19, 56-61, primary host machine detects change in state, determines replication chain and replicates information to backup host),
identifying, by the primary host machine, a replication chain for the communication channel, the replication chain including the primary host machine and one or more backup host machines (¶ 16-19, 56-61, primary host machine detects change in state, determines replication chain and replicates information to backup host), wherein the primary host machine is a head of the replication chain, and one of the one or more backup host machines is a tail host machine of the replication chain (see fig. 4, primary and secondary replication machines).
MacDonald McAlister fails to teach but Wang teaches:
responsive to determining that the state information is to be replicated in a safe mode, causing by the primary host machine: suspending processing of a packet, communicating the change in the state information to the one or more backup host machines, receiving an acknowledgement indicating that the one or more backup host machines have replicated the state information, and responsive to receiving the acknowledgment, resuming the processing of the packet (¶ 70, 81, fig. 6, determining change of state data is to be performed via safe replication mechanism, e.g. waiting for confirmation of changes; suspension of packet transmission until acknowledgement of successful replication to backup machine is received).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include the teachings of Wang. The motivation to do so is that the teachings of Wang would have been advantageous in terms of facilitating enhanced data transfer operations including failure and recover (Wang, ¶ 70, 81, 12-13).
MacDonald McAlister fails to teach but teaches: receiving, from the tail host machine, an acknowledgement (col. 37:30-57, tail node acknowledgement). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include the teachings of . The motivation to do so is that the teachings of would have been advantageous in terms of facilitating dynamic chain replication (Mercier, col. 35:47-67, col. 36:1-30).
MacDonald McAlister fails to teach but Hashmi teaches:
wherein the change in state information of the communication channel includes cryptographic information used to encrypt/decrypt data transmitted via the communication channel (col. 5:1-34, data for re-negotiation of security association including keys, etc.)
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include the teachings of Hashmi. The motivation to do so is that the teachings of Hashmi would have been advantageous in terms of facilitating fault tolerance (Hashmi, col. 5:1-34).
Regarding claim 2, 14,
MacDonald McAlister teaches:
wherein the primary host machine is a head of the replication chain, a first backup host machine of the one or more backup host machines is a successor host machine of the primary host machine in the replication chain, and a second backup host machine of the one or more backup host machines is a tail host machine of the replication chain (fig. 3, fig. 4, ¶ 16-19, 56-61,).
Regarding claim 3, 15,
MacDonald McAlister teaches:
wherein the customer premise equipment in the customer on-premise network is a first endpoint of the communication channel and the primary host machine included in the replication chain is a second endpoint of the communication channel (fig. 3, fig. 4, ¶ 16-19, 56-61).
Regarding claim 4, 16,
MacDonald McAlister teaches:
detecting, by the primary host machine, a failover of the communication channel; and responsive to detecting the failover, moving the second endpoint of the communication channel from the primary host machine to first backup host machine of the one or more backup host machines (¶ 16-19, 56-61, fig. 4, detection of failure followed by failover to secondary host machine, secondary host machine takes over).
Regarding claim 5, 17,
MacDonald McAlister fails to teach but Wang teaches:
upon determining that the replication of the change in the state information is not to be performed in the safe mode: communicating, by the primary host machine, the change in the state information to the one or more backup host machines; and processing the packet by the primary host machine (¶ 70, 81, asynchronous replication). Motivation to include Wang is the same as presented above.
Regarding claim 7, 18,
MacDonald McAlister fails to teach but Wang teaches:
wherein the primary host machine receives the acknowledgement indicating that the one or more backup host machines have replicated the state information from the second backup host machine of the one or more backup host machines (¶ 70, 81, fig. 6, acknowledgement of successful replication to backup machine is received). Motivation to include Wang is the same as presented above.
Regarding claim 9,
MacDonald McAlister teaches:
wherein determining the change in the state information of the communication channel further comprises: detecting, by the primary host machine, an event triggering the change in the state information of the communication channel; and analyzing, by the primary host machine, the packet associated with the event to determine the change in the state information (¶ 17, determination of state change, e.g., read or write event).
Regarding claim 10,
MacDonald McAlister teaches:
wherein the event triggering the change in the state information is at least one of: receiving the packet at the primary host machine; receiving a change in encryption or decryption information for a connection for the communication channel; and receiving a change in Border Gateway Protocol (BGP) state information for the connection (¶ abstract, ¶ 16-17, 49, packet reception).
Regarding claim 11,
MacDonald McAlister teaches:
wherein the primary host machine identifies the replication chain by querying a disk backed storage system (¶ 38, primary host machine acts as proxy for monitoring component to perform tasks on behalf of the control plane component; ¶ 45-46, querying to identify replication chain).
Regarding claim 12,
MacDonald McAlister fails to teach but Hashmi teaches:
wherein the state information of the communication channel comprises at least one of a sequence number, Internet Key Exchange (IKE) state information, and Border Gateway Protocol (BGP) state information, and wherein the communication channel is an Internet Protocol Security (IPSec) tunnel (col. 5:1-45, key exchange info, IPSec tunnel).
Claims 13 and 20 are addressed by similar rationale as claim 1.
Claims 8, 19 are rejected under 35 U.S.C. 103 as being unpatentable over MacDonald McAlister, Wang, Mercier, and Hashmi in view of US 20200301943 to Robinson.
Regarding claim 8, 19,
MacDonald McAlister fails to teach but Robinson teaches:
wherein the step of determining that the replication of the change in the state information is to be performed in the safe mode further comprises: determining, by the primary host machine, that a downtime for the primary host machine is scheduled within a threshold time-interval (¶ 8, 67).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include the teachings of Robinson. The motivation to do so is that the teachings of Robinson would have been advantageous in terms of facilitating the implementation of controlled failover/replication operations (Robinson, ¶ 8, 67).
CONCLUSION
Any inquiry concerning this communication or earlier communications from the examiner should be directed to RYAN J JAKOVAC whose telephone number is (571)270-5003. The examiner can normally be reached on 8-4 PM EST. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Oscar A. Louie can be reached on 572-270-1684. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/RYAN J JAKOVAC/Primary Examiner, Art Unit 2445