DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claims 1 – 20 are pending.
Response to Arguments
Applicant's arguments filed 02 April 2026 have been fully considered but they are not persuasive.
Applicant argues that the relied upon prior art, specifically US Patent No. 8,719,362 (hereinafter Wu) in combination with US Patent Application Publication No. 2023/0109510 (hereinafter Polimera), fails to teach the claimed invention with respect to independent claims 1, 11, and 17. However the Examiner respectfully disagrees. Polimera teaches a data backup timing interval in which a dataset is backed up to a cloud storage system at a regular cadence (Polimera; Paragraph [0305]). Wu also teaches a cloud-based storage systems which are activated when they are used and deactivated when not in use (Wu; Col 4 Line 58 – Col 5 Line 13). The Examiner maintains that the combination of the teachings of Wu and Polimera suggests that according to a data backup operation of a dataset, a cloud-based storage system could be activated to copy the dataset, and subsequently deactivated when the dataset backup operation is completed at a regular cadence. Therefore, the Examiner maintains that the prior art of record teaches all the limitations of the claimed invention.
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, 4 – 11, and 13 – 20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 – 17 of U.S. Patent No. 12,066,900. Although the claims at issue are not identical, they are not patentably distinct from each other because the claims of the patent require all the limitations of the claims of the instant application.
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.
Claim(s) 1, 4 – 11, and 13 – 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over US Patent No. 8,719,362 (hereinafter Wu) in view of US Patent Application Publication No. 2023/0109510 (hereinafter Polimera).
As per claims 1, 11, and 17, Wu teaches activating a cloud based storage system and placing the cloud based storage system in a suspend state (Wu; Col 4 Lines 58 – Col 5 Line 13).
Wu does not teach the cloud based storage system activating based on one or more recovery objectives associated with a dataset, storing a copy of the data set, and updating the copy of the dataset; and placing the cloud-based storage system in a suspended state in response to completing the one or more updates to the copy.
However, Polimera teaches a cloud based storage system in which a dataset is updated based on one or more recovery objectives associated with the dataset (Polimera; Figure 5 Items 502, 506, 512, and 516, Paragraphs [0298], [0300], [0301], [0303], and [0305]) and placing the cloud-based storage system in a suspended state in response to completing the one or more updates to the copy (See “Response to Arguments” presented above).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have modified the teachings of Wu to include the dataset because doing so allows for efficient storage of backup datasets (Polimera; Paragraph [0303]).
As per claims 4, 13, and 18, Polimera also teaches wherein one or more hosts that utilize the primary storage system are configured to utilize the cloud-based storage system upon a failure of the primary storage system (Polimera; Figure 6).
As per claims 5, 14, and 19, Polimera also teaches identifying, based on the recovery objectives, that the cloud-based storage system should be resumed at a particular time (Polimera; Paragraph [0305]).
As per claims 6, 15, and 20, Polimera also teaches configuring, based on the recovery objectives associated with the dataset, the primary storage system to replicate the dataset to a cloud computing environment (Polimera; Paragraph [0301]).
As per claim 7, Wu also teaches wherein suspending the cloud-based storage system further comprises removing one or more components from the cloud-based storage system (Wu; Col 4 Line 58 – Col 5 Line 13).
As per claims 8 and 16, Wu also teaches wherein suspending the cloud-based storage system further comprises decreasing a performance level associated with one or more components of the cloud-based storage system (Wu; Col 4 Line 58 – Col 5 Line 13).
As per claim 9, Wu also teaches wherein resuming the cloud-based storage system further comprises adding one or more components to the cloud-based storage system (Wu; Col 4 Line 58 – Col 5 Line 13).
As per claim 10, Wu also teaches wherein resuming the cloud-based storage system further comprises increasing a performance level associated with one or more components of the cloud-based storage system (Wu; Col 4 Line 58 – Col 5 Line 13).
Claim(s) 2, 3, and 12 is/are rejected under 35 U.S.C. 103 as being unpatentable over US Patent No. 8,719,362 (hereinafter Wu) in view of US Patent Application Publication No. 2023/0109510 (hereinafter Polimera), and further in view of US Patent No. 9,448,852 (hereinafter Vemulapalli).
As per claims 2 and 12, Wu in combination with Polimera teaches the invention as described per claims 1 and 11 (see rejection of claims 1 and 11 above).
Wu in combination with Polimera does not teach wherein activating the cloud-based storage system further comprises instantiating one or more virtual storage resources that represent one or more run times for the cloud-based storage system, and wherein placing the cloud-based storage system in the suspended state further comprises ending at least one run time of the one or more run times represented by the one or more virtual storage resources.
However, Vemulapalli teaches a system in which virtual resources are activated by instantiating virtual resources for a run time in a cloud based storage system and suspended by ending the run time in the cloud based storage system (Vemulapalli; Col 6 Lines 40 – 56).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have modified the teachings of Wu in combination with Polimera to include the instantiation and ending because doing so allows for preserving system resources.
As per claim 3, Vemulapalli also teaches wherein the one or more virtual storage resources include at least one of a containerless or a serverless computing deployment (Vemulapalli; Col 6 Lines 5 – 39).
Conclusion
THIS ACTION IS MADE FINAL. 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 RICHARD B FRANKLIN whose telephone number is (571)272-0669. The examiner can normally be reached M-F 8:30am-5pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Idriss Alrobaye can be reached at (571) 270-1023. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/RICHARD B FRANKLIN/Examiner, Art Unit 2181
/Farley Abad/Primary Examiner, Art Unit 2181
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