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 .
Claim Objections
Claim 34 is objected to because of the following informalities: in line 5, replace “via the cellular network” with --the cellular network--. Appropriate correction is required.
CLAIM INTERPRETATION
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.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
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 21-44 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-25 of U.S. Patent No. 12,028,732 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because independent claims of the present application merely broaden the scope of independent claims of US Patent No. 12,028,732 B2 respectively, by eliminating the step of terminating the HTTP connection in response to receiving the HTTP response.
It has been held that the omission an element and its function is an obvious expedient if the remaining elements perform the same as before. In Re Karlson, 136 USPQ 184 (CCPA). Also, note Ex Parte Rainu, 168 USPQ 375 (Bd.App. 1969); omission of a reference element whose function is not needed would be obvious to one skilled in the art.
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.
Claims 21-30, 32, and 33 are rejected under 35 U.S.C. 103 as being unpatentable over Curley et al (US 2002/0120727 A1) in view of Qiao et al (US 2019/0215731 A1) further in view of Park, Jong-Han (EP 3,297,309 A1).
Regarding claims 21 and 29, Curly discloses a method for assessing latency in a communication network (Fig. 5), the method comprising:
attempting to contact from a client a specific internet resource with a HTTP request addressed to the resource (Fig. 5, in block 56, the web client sends an HTTP request to server);
capture data specifying a period from sending the HTTP request to receiving at the client from the resource an HTTP response to the HTTP request (Fig. 5, in block 56, initial web server response time is determined based on HTTP request and HTTP reply from the server);
wherein the resource is configured to response to the HTTP request with an HTTP response to the request indicative of an HTTP connection to the UE (165th and 167th paragraphs, the initial web server response time includes sending HTTP request to the server and receiving HTTP reply from the server).
Curley discloses a web client transmitting HTTP request via a wireless transmission medium (Fig. 2 and 153rd paragraph). Curley does not disclose user equipment in a cellular network for performing latency measurement. Qiao discloses latency measurement in a cellular network between the UE and application server (83rd paragraph). It would have been obvious to one having ordinary skill before the effective filing date of the claimed invention to include latency measurement by a UE in a cellular network in Curley’s system, as suggested by Qiao, to measure latency between the UE and application server in a cellular network.
Curley does not disclose that wherein the resource is further configured to provide no additional data of any form to the UE during the HTTP connection to the UE and/or wherein the internet recourse is configured to respond to the HTTP request with an indication of connection success but no content. Park discloses that the HTTP response including HTTP 204 No Content (Table 6, 235th paragraph. It is an indication of connection success without any data). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to include HTTP 204 No Content in Curley’s system, as suggested by Park, to indicate no data subsequent to the HTTP response.
Regarding claim 22, Curley discloses that wherein the data specifying the period is a measurement of the duration of the period (195th paragraph, calculating an initial server response time parameter, wherein the initial server response time is the amount of time used for an HTTP GET or POST request from client until server 14 replies with an HTTP OK).
Regarding claim 23, Curley discloses that wherein measuring the period comprises measuring the period required to perform a DNS look-up for the resource (Figs. 4 and 5, the delta T includes network transport time which including DNS lookup. The network transport time is part of the web server response time 56).
Regarding claim 24, Curley discloses that wherein measuring the period comprises measuring the period required, after any requite DNS look-up, to perform a HTTP or HTTPS connect operation to the resource (Fig. 5, web server response time 56 includes DNS lookup and HTTP request with reply operation).
Regarding claim 25, Curley discloses that wherein measuring the period comprises measuring the period required, after any requisite DSN look-up and after any requisite HTTP or HTTPS connect operation, to receive at the content from the resource (Fig. 5, web server response time 56 includes network transport retransmits).
Regarding claim 26, Curley discloses that wherein the data specifying the period is the time point of making the attempt and the time point of receiving the response at the UE (195th paragraph, calculating an initial server response time parameter, wherein the initial server response time is the amount of time used for an HTTP GET or POST request from client until server 14 replies with an HTTP OK).
Regarding claim 27, Curley discloses that wherein the HTTP request is one of an HTTP un-encrypted request (Fig. 5, HTTP request is unencrypted) and an HTTPS encrypted request (alternative).
Regarding claim 28, Curley discloses that wherein the HTTP request is one of GET, POST, HEAD, PUT, DELETE, OPTIONS, and CONNECT (257th paragraph, HTTP request may be GET POST OPTIONS HEAD PUT DELETE CONNECT).
Regarding claim 30, Curley discloses that wherein the HTTP request uses a GET request method (195th paragraph, HTTP GET or POST).
Regarding claim 32, Curley discloses that wherein the HTTP request is a GET request method (195th paragraph, HTTP GET or POST).
Regarding claim 33, Curley discloses that wherein attempting to contact is precipitated by fulfilment of a condition, the condition being one or more of: a push request to the UE from another computing device; passage of a specific time interval; the UE changing a bearer that it is using in the cellular network; the UE moving more than a specified distance within a specified duration of time; a request from a user of the UE to perform a latency test; and a request from the cellular network to perform a latency test (9th paragraph, web managers requesting the monitor subscription based service).
Claims 34-41, 43, and 44 are rejected under 35 U.S.C. 103 as being unpatentable over Curley et al (US 2002/0120727 A1) in view of Qiao et al (US 2019/0215731 A1).
Regarding claim 34, Curley discloses a client for operation in a packet data network (Fig. 1), the client comprising:
transceiving means for communicating wirelessly (Fig. 2 and 153rd paragraph, the transmission medium may be wireless therefore the client must include wireless transceiver for wireless communications);
processing means (Fig. 2, client must include at least one processor) arranged to:
attempt to contact a specific internet resource by means of sending an HTTP request addressed to the resource (Fig. 5, in block 56, the web client sends an HTTP request to server);
capture data specifying a period from sending the HTTP request to receiving via the transceiving means from the resource an HTTP response to the HTTP request (Fig. 5, in block 56, initial web server response time is determined based on HTTP request and HTTP reply from the server).
Curley discloses a web client transmitting HTTP request via a wireless transmission medium (Fig. 2 and 153rd paragraph). Curley does not disclose user equipment in a cellular network for performing latency measurement. Qiao discloses latency measurement in a cellular network between the UE and application server (83rd paragraph). It would have been obvious to one having ordinary skill before the effective filing date of the claimed invention to include latency measurement by a UE in a cellular network in Curley’s system, as suggested by Qiao, to measure latency between the UE and application server in a cellular network.
Regarding claim 35, Curley discloses that wherein the data specifying the period is a measurement of the duration of the period (195th paragraph, calculating an initial server response time parameter, wherein the initial server response time is the amount of time used for an HTTP GET or POST request from client until server 14 replies with an HTTP OK).
Regarding claim 36, Curley discloses that wherein measurement comprises a valuation of the period required to perform a DNS look-up for the resource (Figs. 4 and 5, the delta T includes network transport time which including DNS lookup. The network transport time is part of the web server response time 56).
Regarding claim 37, Curley discloses that wherein measurement comprises a valuation of the period required, after any requite DNS look-up, to perform a HTTP or HTTPS connect operation to the resource (Fig. 5, web server response time 56 includes DNS lookup and HTTP request with reply operation).
Regarding claim 38, Curley discloses that wherein measurement comprises a valuation of the period required, after any requisite DSN look-up and after any requisite HTTP or HTTPS connect operation, to receive at the UE content from the resource (Fig. 5, web server response time 56 includes network transport retransmits).
Regarding claim 39, Curley discloses that wherein the data specifying the period is the time point of making the attempt and the time point of receiving the response at the UE (195th paragraph, calculating an initial server response time parameter, wherein the initial server response time is the amount of time used for an HTTP GET or POST request from client until server 14 replies with an HTTP OK).
Regarding claim 40, Curley discloses that wherein the HTTP request is one of an HTTP un-encrypted request (Fig. 5, HTTP request is unencrypted) and an HTTPS encrypted request (alternative).
Regarding claim 41, Curley discloses that wherein the HTTP request is one of GET, POST, HEAD, PUT, DELETE, OPTIONS, and CONNECT (257th paragraph, HTTP request may be GET POST OPTIONS HEAD PUT DELETE CONNECT).
Regarding claim 43, Curley discloses that wherein the HTTP request uses a GET request method (195th paragraph, HTTP GET or POST).
Regarding claim 44, Curley discloses that wherein the processing means is arranged detect a condition and to make the attempt to the internet resource upon detecting that the condition is fulfilled, and wherein the condition is one or more of: a push request to the UE from another computing device; passage of a specific time interval; the UE changing a bearer that it is using in the cellular network; the UE moving more than a specified distance within a specified duration of time; a request from a user of the UE to perform a latency test; and a request from the cellular network to perform a latency test (9th paragraph, web managers requesting the monitor subscription based service).
Claim 31 is rejected under 35 U.S.C. 103 as being unpatentable over Curley, Qiao, and Park further in view of Geddes et al (US Patent No. 7,107,309 B1).
Regarding claim 31, Curley discloses that wherein the HTTP request uses a POST request method (195th paragraph). Curley does not disclose that wherein the HTTP request uses a POST request method containing blank submitted-data field. Geddes discloses the HTTP POST request from the client station having blank form data fields that can be filled in by the intermediation system (col.27, lines 59-62). It would have been obvious to one having ordinary skill in the art at the time the invention was filed to include blank data fields of HTTP POST request in Curley’s system, as suggested by Geddes, to enable data to be filled in, in response, to the request.
Claim 42 is rejected under 35 U.S.C. 103 as being unpatentable over Curley and Qiao further in view of Geddes et al (US Patent No. 7,107,309 B1).
Regarding claim 42, Curley discloses that wherein the HTTP request uses a POST request method (195th paragraph). Curley does not disclose that wherein the HTTP request uses a POST request method containing blank submitted-data field. Geddes discloses the HTTP POST request from the client station having blank form data fields that can be filled in by the intermediation system (col.27, lines 59-62). It would have been obvious to one having ordinary skill in the art at the time the invention was filed to include blank data fields of HTTP POST request in Curley’s system, as suggested by Geddes, to enable data to be filled in, in response, to the request.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANH VU H LY whose telephone number is (571)272-3175. The examiner can normally be reached M-F 8am-5pm.
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ANH VU H. LY
Primary Examiner
Art Unit 2472
/ANH VU H LY/Primary Examiner, Art Unit 2472
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