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 .
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-disclaimen
Claims 2-7 and 10-16 are rejected on the ground of nonstatutory obviousness-type
double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 11,671,485.
Although the conflicting claims are not identical, they are not patentably distinct from each other
because Claims 1-20 of U.S. Patent No. 11,671,485 contains every element of claims 2-7 and 10-16 of the instant application and thus anticipated the claims of the instant application.
Claims of the instant application therefore are not patently distinct from the earlier patent claims and as such are unpatentable over obvious-type double patenting. A later patent/application claim is not patentably distinct from an earlier claim if the later claim is anticipated by the earlier claim.
Instant Application 18,815,358
Pat. No. U.S. 11,671,485 B2
2. (Previously Presented) An apparatus, comprising: a downloader coupled to a plurality of servers via a plurality of communication links; and a controller configured to: determine initial download requests for the plurality of servers based on predetermined information about a quality of the plurality of communication links, send the initial download requests to the plurality of servers with the downloader, update information about the quality of the plurality of communication links after the downloader receives data associated with a data file from the plurality of servers via the plurality of communication links, determine subsequent download requests for the plurality of servers based on the updated information about the quality of the plurality of communication links, and send the subsequent download requests to the plurality of servers via the downloader;
wherein the initial download requests include a request for a specific server included in the plurality of servers to send a quantity of the data to the downloader, wherein the subsequent download requests include a download termination request for the specific server to stop sending the data to the downloader, and wherein the controller is further configured to:determine a server completion time of the specific server, and send the download termination request to the specific server before the server completion time.
1. An apparatus, comprising: a downloader coupled to a plurality of servers via a plurality of communication links; and a controller configured to determine initial download requests for the plurality of servers based on predetermined information about a quality of the plurality of communication links, send the initial download requests to the plurality of servers with the downloader, update the information about the quality of the plurality of communication links after the downloader receives data associated with a data file from the plurality of servers via the plurality of communication links, determine subsequent download requests for the plurality of servers based on the updated information about the quality of the plurality of communication links, and send the subsequent download requests to the plurality of servers via the downloader,
wherein the initial download requests include a request for a specific server included in the plurality of servers to set a size of an output buffer of the specific server to a first value, wherein the controller is further configured to: determine that the download is almost complete when the downloader has received a quantity of the data from the plurality of servers that is greater than a majority threshold; and if the controller determines that the download is almost complete, send subsequent download requests to the plurality of servers, wherein the subsequent download requests include a request for the specific server to set the size of the output buffer to a second value that is less than the first value.
5. The apparatus according to claim 1, wherein the initial download requests include a request for a specific server included in the plurality of servers to send a quantity of the data to the downloader, wherein the subsequent download requests include a download termination request for the specific server to stop sending the data to the downloader, and wherein the controller is further configured to determine a server completion time of the specific server, and send the download termination request to the specific server before the server completion time.
Claims 3-7 and 10-16
Claims 2-20
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.
Claims 2-17 are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter. The claim(s) does/do not fall within at least one of the four categories of patent eligible subject matter because the claimed invention is directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more.
Claims 2 and 10 are directed to an apparatus and method respectively however these claims are directing to an abstract idea under the mental process wherein the limitations “determining initial request ….”, “updating information…” and “determining subsequence requests….” are concept of collecting information, analyzing it, and adjusting a subsequent action based on that analysis which fall within a “method of organizing human activity” under Prong I step 2A.
The other limitations in these claims are considered as additional elements under Prong II step 2A wherein the limitation “downloader”, “controller”, “server”, and “communication links” perform recited function amount to no more than generic computer components and instructions to implement the abstract idea on a compute which does not integrate the judicial exception into a practical application. See MPEP 2106.05(g).
Under step 2B, these additional elements above recite “apply it” with judicial exception or mere instructions to implement an abstract idea on a generic computer, or merely uses a computer or computer components as a tool to perform the abstract idea, thus is not a practical application. See MPEP 2106.05(f). and recite insignificant extra solution activity such as “downloader”, “controller”, “server”, and “communication links” data which does not integrate the judicial exception into a practical application. See MPEP 2106.05(g). Therefore, these additional elements do not recite an inventive concept, thus, the claimed invention is patent ineligible under 35 USC 101.
Re claims 3-9 and 11-17, these claims are not integrated into the practical application as they are either further detail the abstract idea limitations under Prong I step 2A or additional elements which insignificantly amount to the judicial exception under Prong II step 2A.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
US-20100306373-A1
US-20180367637-A1
US-20080162666-A1
US-20070201502-A1
US-20070204003-A1
US-10652780-B2
US-11888859-B2
US-10305955-B1
Any inquiry concerning this communication or earlier communications from the examiner should be directed to PHUOC H NGUYEN whose telephone number is (571)272-3919. The examiner can normally be reached M-F: 7:30 am -3:30 pm.
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/PHUOC H NGUYEN/Primary Examiner, Art Unit 2451
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