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-disclaimer.
Claims 1-14 and 15-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-14 of U.S. Patent No. US 12,088,512 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because the claims of the instant application are broad and all the limitations are included in the claims of the US Patens.
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 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.
Claims 1-20 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Di Benedetto et al. (US 9,444,723 B1).
Regarding claim 1, Di Benedetto discloses a method comprising: fragmenting a first packet into a plurality of fragments when a length of an encapsulated first packet is larger than a maximum transmission unit size (e.g. fig. 12, step 1204 and 1208; col. 22, lines 15-56, illustrating fragmenting a packet when the size exceeding maximum length); for each fragment in the plurality of fragments, generating fragmentation information (figs. 12-13; col. 22, lines 42-67; col. 23, lines 29-65; and so on, generating fragmentation field(s) for each of the fragments); encapsulating each fragment in the plurality of fragments with an outer header to form a plurality of encapsulated packets (figs. 12-13; col. 22, line 57-col. 23, line 6; col. 23, line 50-59; and etc., explaining the encapsulation of the fragments with outer header), wherein respective fragmentation information for each fragment is inserted in a particular portion of the outer header that forms at least part of an option portion of the outer header (figs. 11-14; col. 20, line 23-col. 21, line 67; col. 2, line 51-col. 3,line 25; col. 13, lines 4-33; col. 15, lines 28-56; col. 16, lines 23-31; and so on, describing the fragmentation field(s) include in a particular portion, within control plane 1008 of outer header 802); and sending the plurality of encapsulated packets via the overlay tunnel (figs. 6, 12, 14; col. 23, lines 1-28; col. 25,lines 3-53; and etc., illustrating the transmission of the encapsulated packets through the overlay tunnel).
Regarding claim 8 and 15, the claims include features identical to the subject matter mentioned in the rejection to claim 1. The claims are a mere reformation of claim 1 in order to define the corresponding non-transitory computer-readable storage medium and a system, and the rejection to claim 1 is applied hereto.
Regarding claim 2, 9, and 16, Di Benedetto discloses wherein: the first packet is fragmented at a determined size to form each fragment, and an inner header is not included in each of the plurality of encapsulated packets (figs. 8, 11-14).
Regarding claim 3, 10, and 17, Di Benedetto discloses wherein a header of the first packet is included once in the plurality of encapsulated packets (fig. 13).
Regarding claim 4, 11, and 18, Di Benedetto discloses wherein: the fragmentation information is added to a field of the outer header that is defined for an endpoint to store information to indicate the encapsulated packet includes a fragment of the first packet, and the device does not process the field (figs. 11-14; col. 20, line 23-col. 21, line 67; col. 2, line 51-col. 3,line 25; col. 13, lines 4-33; col. 15, lines 28-56; col. 16, lines 23-31; and so on).
Regarding claim 5, 12, and 19, Di Benedetto discloses wherein the fragmentation information includes first information to identify each fragment is associated with the first packet and second information that allows the fragments to be reassembled into the first packet (figs. 11-12; col. 20, line 23-col. 21, line 67; col. 23, lines 1-28; and so on).
Regarding claim 6, 13, and 20, Di Benedetto discloses wherein the maximum transmission unit size is based on a first maximum transmission unit size in the path in which the packet will be sent or a second maximum transmission unit size of the endpoint (col. 20, line 30-col. 21, line 23; col. 22, lines 15-32; col. 26, lines 5-40).
Regarding claim 7 and 14, Di Benedetto discloses wherein: the fragments in the plurality of encapsulated packets are stored until all the fragments are received, and reassembled using the fragmentation information (col. 23, lines 7-28; col. 26, lines 54-50; col. 21, lines 24-35; col. 23, lines 1-28; and so on).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KIBROM T HAILU whose telephone number is (571)270-1209. The examiner can normally be reached M-F 8:00 AM to 5:30 PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, HUY D VU can be reached at (571)272-3155. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/KIBROM T HAILU/Primary Examiner, Art Unit 2461
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