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 filed 5/11/2026 have been fully considered but they are not persuasive. Applicant argues “the cited portions of Aviv fail to disclose the following elements: ‘at least a first portion of the data to be derived from network traffic processed by the system, and at least a different second portion of the data to comprise one or more metrics related to the system.’ The examiner respectfully disagrees. Paragraph 55 of Aviv states: “feeder 510 is configured to receive raw telemetries 501 from the data stream passing through a network node 240.” (emphasis added) While paragraph 56 of Aviv states “the analyzer 520 may be configured to receive normalized data 502 from the message bus 550. In an alternative embodiment, the analyzer 520 may be configured to receive normalized data 502 directly from the feeder 510. The analyzer 520 is configured to process and analyze the normalized data 502 to determine whether any anomalies exist in the received normalized data 502. Anomalies are detected by comparing metrics of incoming traffic to one or more computed baselines. To this end, the analyzer 520 may implement techniques for anomaly detection, such as IIR, fuzzy logic, machine learning, and the like. In an embodiment, the analyzer 520 is configured to inspect and analyze telemetries at layers 3-4 of the OSI mode. The telemetries may include packets per second (from a specific IP address), flows per second, bytes per second, TCP flags, and the like. The telemetries are provided by the network node 240. The analyzer 520 can detect anomalies indicating on attack types including, but not limited to, flood, stress, HTTPS, OOS, DNS, and the like.” (emphasis added). It is clear in Aviv that it is receiving data to be derived from network traffic processed by the system in data passing through a network node 240. The detector 230 is a virtual entity executed in a network node (e.g., a switch) according to paragraph 49 of Aviv. The detector 230 then collects metrics (packets per second, flows per second, bytes per second, among other metrics) related to the system.
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 1-19 is/are rejected under 35 U.S.C. 102(a)(2) as being anticiapted by Aviv et al. (US 2021/0226988) hereafter Aviv.
1. Aviv discloses a system, comprising stored instructions that cause the system to at least:
collect data while the system performs at least one networking function, the data to be associated with the at least one networking function (para 53-61), at least a first portion of the data to be derived from network traffic processed by the system, and at least a different second portion of the data to comprise one or more metrics related to the system (para 55-56); and
use a machine learning model to obtain an inference based, at least in part, on the data (para 56); and
adjust, using the inference, one or more operations of the system (para 59).
2. Aviv discloses the system of claim 1, wherein the system comprises an application-specific integrated circuit (“ASIC”), and the stored instructions cause the ASIC to collect the data and perform the at least one networking function (para 69-70).
3. Aviv discloses the system of claim 1, wherein if the inference is indicative of a denial-of-service (“DoS”) attack, or other malicious use of the system (para 56, flood attack, stress; fig.8 and corresponding text), adjusting the one or more operations of the system comprises at least one of shutting down the system, causing the system to restrict usage of the system, slowing the system, or preventing the system from processing traffic from one or more sources associated with the first portion of the data (para 60).
4. Aviv discloses the system of claim 1, wherein the system is connected to a network, and the data comprises telemetry data collected by the system (para 55-56).
5. Aviv discloses the system of claim 1, wherein the stored instructions further cause the system to at least: analyze the inference to determine if the inference indicates a denial-of-service (“DoS”) attack, or other malicious use of the system (para 56; see also para 42-45); and
send a notification to another device if the inference indicates the DoS attack, or the other malicious use of the system (para 61).
6. Aviv discloses the system of claim 1, wherein the stored instructions further cause the system to at least: identify at least one action based at least in part on the inference (para 59-60), wherein adjusting the one or more operations of the system comprises performing the at least one action (para 59-60).
7. Aviv discloses the system of claim 1, wherein the inference infers an undesired use of the system has occurred, and the stored instructions further cause the system to at least block an address associated with the undesired use (para 59-60).
Claims 8-19 are similar in scope to claims 1-7 and are rejected under similar rationale.
Claim Rejections - 35 USC § 103
Claim(s) 20-21 is/are rejected under 35 U.S.C. 103 as being unpatentable over Aviv as applied to claim 1, 15 above, and further in view of Edsall et al. (US 2014/0078903) hereafter Edsall.
20. Aviv discloses the method of claim 15, but does not explicitly disclose wherein the different second portion of the data comprises histogram data including a plurality of bins representing a distribution of queue occupancy of the network device. However, in an analogous art, Edsall discloses real time and high resolution buffer occupancy monitoring including wherein the different second portion of the data comprises histogram data including a plurality of bins representing a distribution of queue occupancy of the network device (para 26-31). It would have been obvious to a person of ordinary skill in the art before the effective filing date to modify the implementation of Aviv with the implementation of Edsall in order to detect microbursts and mitigate the effects of them (para 18, 43).
Claim 21 is similar in scope to claim 20 and is rejected under similar rationale.
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 1-25 of U.S. Patent No. 12,069,069. Although the claims at issue are not identical, they are not patentably distinct from each other because the claims of the current application are anticipated by the claims of the U.S. Patent listed above.
Conclusion
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 R TURCHEN whose telephone number is (571)270-1378. The examiner can normally be reached Monday-Friday: 7-3.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Luu Pham can be reached at 571-270-5002. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JAMES R TURCHEN/Primary Examiner, Art Unit 2439
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