DETAILED ACTION
This action is responsive to claims filed on 02/13/2024 and Information Disclosure Statements filed on 02/13/2024, and 03/18/2024.
Claims 1-9 are pending for examination.
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 .
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claim 7 and 8 are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter. The claim does not fall within at least one of the four categories of patent eligible subject matter because products that do not have a physical or tangible form, such as information (often referred to as "data per se") or a computer program per se (often referred to as "software per se") when claimed as a product without any structural recitations. See MPEP § 2106.03(I). Claim 7 is explicitly directed to "A computer program comprising instructions" (emphasis added), which appears to encompass "a computer program per se." and Claim 8 is explicitly directed to a “carrier medium comprising the computer program”, which also appears to encompass “a computer program per se”.
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.
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, 3, and 6-9 are rejected under 35 U.S.C. 103 as being unpatentable over Grib et al. (US 20090292821 A1) in view of Carlson et al (US 20060120282 A1). With regarding claim 1, Grib disclosed a method of operating a controller for controlling a performance test in one or more access networks (See FIG. 1-2B, 5B and ¶[0006], [0012], [0017], [0023], [0026] Claim 23-29. Disclosed scheduler system communicates to initiate performance test), wherein a first access network of the one or more access networks includes a first access node, a first plurality of network nodes and a first communications medium, and each network node of the first plurality of network nodes is connected to the first access node by the first communications medium such that the first communications medium is shared by the first plurality of nodes, the method comprising the steps of: obtaining data identifying the first communications medium of a first network node of the first plurality of network nodes (See FIG. 3, 4A-4B, [0015]-[0017]. Disclosed performance of different network routes between devices); determining that a count of concurrent performance tests of the first communications medium is less than a first threshold; and in response to the determination (See FIG. 4B, ¶[0014], [0016], [0029], Claim 13. Disclosed determining whether a number of scheduled tests exceeds a first threshold number for the first device or exceeds a second threshold number for the second device), causing initiation of a first performance test of the first communications medium in which the first network node is a participant of the first performance test (See FIG. 5B, ¶[0012], [0029]-[0031], Claim 13. Disclosed FIG. 5B in process block 524, a performance test is simultaneously performed over the two or more paths between the devices). Grib may not explicitly disclose wherein a first access network of the one or more access networks includes a first access node, a first plurality of network nodes and a first communications medium, and each network node of the first plurality of network nodes is connected to the first access node by the first communications medium such that the first communications medium is shared by the first plurality of nodes, the method comprising the steps of: obtaining data identifying the first communications medium of a first network node of the first plurality of network nodes;
However, in analogous art, Carlson disclose wherein a first access network of the one or more access networks includes a first access node, a first plurality of network nodes and a first communications medium, and each network node of the first plurality of network nodes is connected to the first access node by the first communications medium such that the first communications medium is shared by the first plurality of nodes, the method comprising the steps of (See FIG. 24-27, ¶[0024]-[0026], [0068] [0092], [0168], [0208]-[0210]] Claim 1, 17-18. Disclosed network access to a shared access communications medium for a plurality of users): obtaining data identifying the first communications medium of a first network node of the first plurality of network nodes (See FIG. 29-32, ¶[0024]-[0026], [0092], [0168], [0188]-[0189]. disclosed shared medium identification, forecasts from a prediction cache for a devices on predetermined channel that are valid for a time interval. And predicted need is determined by reference to traffic information collected by a communications device coupled to the communication medium.); Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine Carlson to modify Grib teachings. Gribs teaches counting scheduled tests and comparing against a threshold number to prevent resource conflicts. And Carlson teaches that when multiple users share a communications medium , resources management must operates at the medium, that medium level congestion occurs when aggregate demand from multiple users exceeds channel capacity. This combination ensure prevent test induced congestion on shared communications media.
With regarding claim 3, Grib disclosed a method as claimed in Claim 1, further comprising the step of: Grib disclosed determining a first scheduled time for the first performance test, wherein the step of determining that the count of concurrent performance tests of the first communications medium is less than the first threshold is based on the count of concurrent performance tests of the first communications medium at the first scheduled time, and the step of causing initiation of the first performance test is such that the first performance test is conducted at the first scheduled time (See FIG. 5B, ¶[0006], [0012], [0029]-[0031], Claim 13. Disclosed FIG. 5B in process block 524, a performance test is simultaneously performed over the two or more paths between the devices).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine Carlson to modify Grib teachings. Gribs teaches counting scheduled tests and comparing against a threshold number to prevent resource conflicts. And Carlson ¶[0206], [0210], [0024], Claim 1, 13 teaches that when multiple users share a communications medium , resources management must operates at the medium, that medium level congestion occurs when aggregate demand from multiple users exceeds channel capacity. This combination yields congestion avoidance at scheduled execution times using known resource management techniques applied to a test conflicts in shared medium networks. With regarding claim 7, Grib disclosed a computer program comprising instructions which, when the program is executed by a computer, cause the computer to carry out the steps of Claim 1(See FIG. 2A-2B, ¶[0020]-[0021], and See claim 1). With regarding Claim 8, through of a different scope, the limitations of claim 8 are substantially similar or identical to those of claim 7, and is rejected under the same reasoning. With regarding claim 9, Grib disclosed a computer program comprising instructions which, when the program is executed by a computer, cause the computer to carry out the steps of Claim 1(See FIG. 2A-2B, ¶[0020]-[0022], and See claim 1). 9. Claims 2 are rejected under 35 U.S.C. 103 as being unpatentable over Grib and Carlson et al. as applied to claims 1 above, and further in view of Bugenhagen et al (US 20140280904 A1).
With regarding claim 2, Grib and Carlson et al. disclosed a method as claimed in Claim 1, Grib and Carlson may not explicitly disclosed wherein the step of determining that the count of concurrent performance tests of the first communications medium is less than the first threshold is based on the count of performance tests of the first communications medium that are currently active. Bugenhagen disclosed wherein the step of determining that the count of concurrent performance tests of the first communications medium is less than the first threshold is based on the count of performance tests of the first communications medium that are currently active (See FIG. 1, ¶[0081]-[0083], [0086], [0063] teaches counting currently active/ongoing performance test with threshold-based gating).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine Bugenhagen to modify Grib and Carlson teachings. Grib teaches a shared communications medium architecture where multiple nodes connect to an access nodes (CMTS) via a shared medium, and explicitly teaches that shared media require medium specific resources management rather than merely device-specific management. Bugenhagen teaches active test counting technique from agent level to medium level in a shared medium environment. This combination address network congestion management requiring threshold based admission control.
10. Claim 4-6 is rejected under 35 U.S.C. 103 as being unpatentable over Grib and Carlson et al. as applied to claims 1 above, and further in view of Bugenhagen et al (US 20080002576 A1).
With regarding claim 4, Grib and Carlson et al. disclosed a method as claimed in any one of the preceding Claim 1, Grib teaches disclosed wherein a second access network of the one or more access networks includes a second access node, a second plurality of network nodes and a second communications medium, and each network node of the second plurality of network nodes is connected to the second access node by the second communications medium such that the second communications medium is shared by the second plurality of nodes, wherein the first network node is a member of the first plurality of network nodes and the second plurality of network nodes and the obtained data further identifies the second communications medium of the first network node, the method further comprising the steps of: determining that a count of concurrent performance tests of the second communications medium is less than a second threshold (See FIG. 1-2B, 5B¶[0006], [0012], [0017], [0023], [0026] Claim 23-29. Disclosed scheduler system communicates to initiate performance test, FIG. 5B in process block 524, a performance test is simultaneously performed over the two or more paths between the devices)); and in response to the determination, causing initiation of a second performance test of the second communications medium in which the first network node is a participant of the second performance test. Grib and Carlson may not in response to the determination, causing initiation of a second performance test of the second communications medium in which the first network node is a participant of the second performance test. Bugenhagen disclosed in response to the determination, causing initiation of a second performance test of the second communications medium in which the first network node is a participant of the second performance test (See FIG. 67. ¶[0398] Disclosed requesting from multiple network communications devices, a counter value). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine Bugenhagen to modify Grib and Carlson teachings. Grib teaches and Carlson teaches per-channel management within system, and test counting. Bugenhagen teaches multiple devices counters track traffic metrics. This combination teaches managing testing concurrency across multiple shared medium. With regarding Claim 5, through of a different scope, the limitations of claim 5 are substantially similar or identical to those of claim 2, and is rejected under the same reasoning. With regarding Claim 6, through of a different scope, the limitations of claim 6 are substantially similar or identical to those of claim 3, and is rejected under the same reasoning.
Conclusion
A shortened statutory period for reply to this action is set to expire THREE MONTHS from the mailing date of this action. An extension of time may be obtained under 37 CFR 1.136(a). However, in no event, will the statutory period for reply expire later than SIX MONTHS from the mailing date of the action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SHIVAKRISHNA VALLAMDASU whose telephone number is (571)272-5249. The examiner can normally be reached Monday - Friday 8:30 AM - 6:00 PM EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Smith, Marcus R. can be reached on (571) 270-1096. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/SHIVAKRISHNA VALLAMDASU/Examiner, Art Unit 2468
/MARCUS SMITH/Supervisory Patent Examiner, Art Unit 2468