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
A rejection based on double patenting of the “same invention” type finds its support in the language of 35 U.S.C. 101 which states that “whoever invents or discovers any new and useful process... may obtain a patent therefor...” (Emphasis added). Thus, the term “same invention,” in this context, means an invention drawn to identical subject matter. See Miller v. Eagle Mfg. Co., 151 U.S. 186 (1894); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Ockert, 245 F.2d 467, 114 USPQ 330 (CCPA 1957).
A statutory type (35 U.S.C. 101) double patenting rejection can be overcome by canceling or amending the claims that are directed to the same invention so they are no longer coextensive in scope. The filing of a terminal disclaimer cannot overcome a double patenting rejection based upon 35 U.S.C. 101.
Claims 1-4,7-8,10-11,14-17,19-25,30 is/are rejected under 35 U.S.C. 101 as claiming the same invention as that of claims 1-4,7-8,10-11,14-17,19-25,30 of prior U.S. Patent No. 12153499. This is a statutory double patenting rejection.
Claim 1 is exemplary
Instant claim 1
Patent 12153499 claim 1
A system comprising:
a memory having computer-readable instructions stored thereon; and
a processor that executes the computer-readable instructions to:
A system comprising:
a memory having computer-readable instructions stored thereon; and
a processor that executes the computer-readable instructions to:
create a highly available database comprising a source database stored at a first location and a copy of the source database stored at each of one or more second locations;
create a highly available database comprising a source database stored at a first location and a copy of the source database stored at each of one or more second locations;
associate a user defined switch over policy with the highly available database;
associate a user defined switch over policy with the highly available database;
select the first location or one of the one or more second locations as an initial active location;
select the first location or one of the one or more second locations as an initial active location;
capture at least one of one or more snapshots or one or more logs from the source database or the copy of the source database that is stored on the initial active location;
capture at least one of one or more snapshots or one or more logs from the source database or the copy of the source database that is stored on the initial active location;
determine that the initial active location has become unavailable;
determine that the initial active location has become unavailable;
in response to the initial active location becoming unavailable, select another location from the first location and the one or more second locations as a next active location based on the switch over policy, wherein the switch over policy assigns a priority to at least some of the first location and the one or more second locations, and wherein the next active location is selected based on the priority; and
in response to the initial active location becoming unavailable, select another location from the first location and the one or more second locations as a next active location based on the switch over policy, wherein the switch over policy assigns a priority to at least some of the first location and the one or more second locations, and wherein the next active location is selected based on the priority; and
continue capture of the at least one of the one or more snapshots or one or more logs from the next active location.
continue capture of the at least one of the one or more snapshots or one or more logs from the next active location.
Claims 2-4,7-8,10-11,14-17,19-25,30 are also identical to claims 2-4,7-8,10-11,14-17,19-25,30 from patent number 12153499 and are also rejected under statutory 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 1,11,21 rejected on the ground of nonstatutory double patenting - obviousness type as being unpatentable over claims 1,11,21 of U.S. Patent No. 11640340. Although the claims at issue are not identical, they are not patentably distinct from each other because they simply remove some limitations, or describe the same system in a different way.
Claim 1 is exemplary
Instant claim 1
Patent 11640340 claim 1
A system comprising:
a memory having computer-readable instructions stored thereon; and
a processor that executes the computer-readable instructions to:
A system comprising:
a processor executing computer-readable instructions stored on a memory to:
create a highly available database comprising a source database stored at a first location and a copy of the source database stored at each of one or more second locations;
select one of a plurality of nodes as a primary node capable of storing a source database, the remaining ones of the plurality of nodes being a secondary node, each of the secondary node capable of storing a copy of the source database, wherein updates made to the source database on the primary node are able to be copied to the copy of the source database on the secondary node, and
associate a user defined switch over policy with the highly available database;
wherein in response to the primary node becoming unavailable, one of the secondary node is designated to become the primary node based on a first policy;
select the first location or one of the one or more second locations as an initial active location;
designate a first node from the primary node or the secondary node as an initial active node;
capture at least one of one or more snapshots or one or more logs from the source database or the copy of the source database that is stored on the initial active location;
capture one or more snapshots of the source database or the copy of the source database from the first node designated as the initial active node;
determine that the initial active location has become unavailable;
determine that the first node has become unavailable;
in response to the initial active location becoming unavailable, select another location from the first location and the one or more second locations as a next active location based on the switch over policy, wherein the switch over policy assigns a priority to at least some of the first location and the one or more second locations, and wherein the next active location is selected based on the priority; and
select, in response to the first node becoming unavailable and based on a user defined switch over policy, a second node from the primary node or the secondary node as a next active node, wherein the switch over policy defines a criteria for selecting the next active node from the plurality of nodes to capture the one or more snapshots from; and
continue capture of the at least one of the one or more snapshots or one or more logs from the next active location.
capture the one or more snapshots of the source database or the copy of the source database from the second node in response to selecting the second node as the next active node.
Claims 11,21 are rejected under nonstatutory double patenting for similar reasons, corresponding to claims 11,21 of U.S. Patent No. 11640340.
There is no prior art for claims 1-4,7-8,10-11,14-17,19-25,30 because of the inclusion of the following limitations: The following is an examiner’s statement of reasons for allowance: The prior art does not teach or fairly suggest:
create a highly available database comprising a source database stored at a first location and a copy of the source database stored at each of one or more second locations;
associate a user defined switch over policy with the highly available database;
select the first location or one of the one or more second locations as an initial active location;
capture at least one of one or more snapshots or one or more logs from the source database or the copy of the source database that is stored on the initial active location;
determine that the initial active location has become unavailable;
in response to the initial active location becoming unavailable, select another location from the first location and the one or more second locations as a next active location based on the switch over policy, wherein the switch over policy assigns a priority to at least some of the first location and the one or more second locations, and wherein the next active location is selected based on the priority; and
continue capture of the at least one of the one or more snapshots or one or more logs from the next active location.
outlined in claims 1,11,21. A reasonable combination of systems that can select the first or one or more second locations as an initial active location, in combination with a user defined switch over policy wherein the switch over policy assigns a priority to at least some of the first location and the one or more second locations, and wherein the next active location is selected based on the priority, and capturing snapshots from either the source database or the copy of the source database from the second location was not found in the prior art.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
US 20170235758 A1 - Gopalapura - general backup policy reference.
US 20200110675 A1 - Wang - general backup policy reference.
US 20160048408 A1 - Madhu - general backup policy reference.
US 20200349018 A1 - Meadowcroft - Real time backup system.
US 10725866 B1 - Palaiah - active and passive backups, updates passive backups.
US 20200104377 A1 - Earnesty - selects migration targets based on requirements. Related to priority/ranking of failover nodes
US 20200104376 A1 - Earnesty - similar, might be better, more focused on target requirements. Related to priority/ranking of failover nodes
US 20200050522 A1 - Coleman - general backup policy reference, failover into the same cluster.
US 20190384496 A1 - Abdul Rasheed - backup sent to cluster, may be implemented across cluster.
US 20190324865 A1 - Weissman - policy group selection pattern - picks where to store backups. Has two clusters. Related to priority/ranking of failover nodes
US 20190155699 A1 - Luo - Generic incremental backup system, similar time machine to applicant.
US 10719407 B1 - Chockalingam - Generic backup system, fault domains.
US 7971094 B1 - Benn - user defined failover plan, but not focused on failover for snapshot/log backups of a mirrored system.
US 9858155 B2 - Ashutosh - service level agreement defines backup policies, source and backup storage location.
US 20140250081 A1 - Stewart - Database snapshots, but not of a mirrored system.
US 9372758 B2 - Ashutosh - creates backup according to SLA, and uses the backup as the source for further replication.
US 8677085 B2 - Vaghani - object snapshots
US 20220066993 A1 - Khanuja - source database snapshot/logs to a second and third location, has failover policies, but was filed 2021, after the instant application effective filed date.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MICHAEL XU whose telephone number is (571)272-5688. The examiner can normally be reached Monday-Friday 8:00am - 5:00pm.
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/MICHAEL XU/ Examiner, Art Unit 2113