DETAILED ACTION
Claims 1-10 are presented for consideration.
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 1-10 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-17 of U.S. Patent No.12,074,766. Although the claims at issue are not identical, they are not patentably distinct from each other because they are claiming common subject matter as shown in the table below.
Claim 1 of current application
Claims 1, and 3 of patent 12,074,766
perform a process pertaining to changing settings of a network
to change a network setting of the network according to the update of the software
output to a communication device connected to the network, a notification that a change to the settings of the network has been completed
after causing the relay device to change the network setting, determine whether or not communication of the ECU with the software that has been updated within the network in which the network setting has been changed matches a specific communication condition
upon receiving, from the communication device, a communication error in communication conducted by the communication device after the notification and according to the change to the settings of the network, perform a process for returning changed settings of the network to a pre-change state
notify an error to the external device based on a determination having been made that the communication of the ECU with the software that has been updated does not match the specific communication condition. to cause the network setting to return to a prior state in a case where the determination having been made that the communication of the ECU with the software that has been updated does not match the specific communication
Claim Rejections - 35 USC § 102
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.
Claim(s) 1-7, 9, and 10 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Kothari et al. [ US Patent Application No 2015/0074661 ].
As per claim 1, Kothari discloses the invention as claimed including a communication control device, comprising: a memory; and a processor coupled to the memory [ Figure 1; and paragraphs 0024, and 0025 ], wherein the processor is configured to:
perform a process pertaining to changing settings of a network [ i.e. configuration change made through the VM management system ] [ Abstract; and paragraphs 0004, and 0048 ];
output, to a communication device connected to the network, a notification that a change to the settings of the network has been completed [ i.e. the VM management system sends an “invoke Transaction” call (HostVDS Reconfigure()) to the host computing device ] [ Figures 6, and 7; and paragraphs 0048, 0051, and 0055 ]; and
upon receiving, from the communication device, a communication error in communication conducted by the communication device after the notification and according to the change to the settings of the network [ i.e. various events can cause the connection between the VM management system and managed node to be lost ] [ Figure 7; Abstract; and paragraphs 0042, 0043, and 0047 ], perform a process for returning changed settings of the network to a pre-change state [ i.e. the rollback mechanism enables the system to revert back to the saved configuration and restore the previously working connection ] [ Abstract; and paragraphs 0004, 0050, and 0052 ].
As per claim 2, Kothari discloses wherein the processor is further configured to determine that the change to the settings of the network is valid in a case in which the processor does not receive a communication error from the communication device for a predetermined amount of time after changing the settings of the network [ i.e. confirming message which indicates a working connection is received, and reconfigure successful ] [ paragraphs 0046, and 0049 ].
As per claim 3, Kothari discloses wherein the processor is further configured to notify an external device that the change to the settings of the network is valid [ i.e. issues a message completed to the VM management system client ] [ Figure 6; and paragraph 0049 ].
As per claim 4, Kothari discloses perform, with respect to the communication device connected to the network on which the processor made the change to the settings of the network that was the cause of the communication error from the communication device, a process for returning the settings of the network to the pre-change state [ i.e. revert back to a saved configuration ] [ Abstract; and paragraphs 0045, and 0050 ].
As per claim 5, Kothari discloses wherein the communication error is at least one of being unable to confirm continuity with a communication device to which communication is addressed, being unable to conduct communication in a predetermined period, being unable to conduct communication by a predetermined protocol, or being unable to conduct communication because a predetermined port is not open [ i.e. various events can cause the connection to be lost include updating the speed, changing the IP settings, changing the settings in the distributed port group, etc. ] [ paragraph 0043 ].
As per claim 6, Kothari discloses wherein the processor is further configured to request that a server that distributed software that was responsible for changing the settings of the network returns the software to a pre-update state [ i.e. VCenter server band software; and reverts back to the saved configuration that was previously known to work ] [ Abstract; and paragraphs 0030, 0040 and 0045 ].
As per claim 7, Kothari discloses whether there is a notification of a communication error from the communication device connected to the network, wherein the processor, in response to a detection of the notification of a communication error by the processor, is further configured to perform, with respect to the communication device that was a target of the change to the settings of the network, a process for returning the settings of the network to the pre-change state [ i.e. monitor to determine the status of the connection, and the VM management system waits for a predetermined amount of time to see if a certain confirming message, depending on whether certain expected messages are received, revert back to the saved configuration ] [ paragraph 0046 ].
As per claim 9, it is rejected for similar reasons as stated above in claim 1.
As per claim 10, it is rejected for similar reasons as stated above in claim 1.
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 8 is rejected under 35 U.S.C. 103 as being unpatentable over Kothari et al. [ US Patent Application No 2015/0074661 ], in view of Fox [ US Patent Application No 2019/0034191 ].
As per claim 8, Kothari does not specifically disclose wherein the network is an in-vehicle network. Fox discloses wherein the network is an in-vehicle network [ Figure 1 ]. It would have been obvious to a person skill in the art to combine the teaching of Kothari and Fox because the teaching of Fox would enable to manage the dependencies between ECUs so that software updates to ECUs can be coordinated and performed on all ECUs that may be impacted by an update [ Fox, paragraph 0009 ].
Response to Arguments
Applicant’s arguments with respect to claim(s) 1-10 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
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.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Mueller et al. [ US Patent No 10,061,574 ] discloses multiple vehicle software module reflash and restore the software modules that failed to update to a previous state
Wu et al. [ US Patent Application No 2013/0003528 ] discloses switch may be configured to revertive mode may automatically return to working path
Galula et al. [ US Patent Application No 2020/0216097 ] discloses system may take preventative actions such as revert to a known state of a system
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/DUSTIN NGUYEN/Primary Examiner, Art Unit 2446
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