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 .
This office correspondence is in response to the application filed on October 23, 2024.
Claims 1-20 are pending.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 06/09/2025 and 09/11/2025 was filed after the mailing date of the instant application on 10/23/2024. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
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 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 12,166,677. Although the claims at issue are not identical, they are not patentably distinct from each other.
“A later patent claim is not patentably distinct from an earlier patent claim if the later claim is obvious over, or anticipated by, the earlier claim. In re Longi, 759 F.2d at 896, 225 USPQ at 651 (affirming a holding of obviousness-type double patenting because the claims at issue were obvious over claims in four prior art patents); In re Berg, 140 F.3d at 1437, 46 USPQ2d at 1233 (Fed. Cir. 1998) (affirming a holding of obviousness-type double patenting where a patent application claim to a genus is anticipated by a patent claim to a species within that genus). “ELI LILLY AND COMPANY v BARR LABORATORIES, INC., United States Court of Appeals for the Federal Circuit, ON PETITION FOR REHEARING EN BANC (DECIDED: May 30, 2001).
Claim Rejections - 35 USC § 103
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 (i.e., changing from AIA to pre-AIA ) 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 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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1-20 are rejected under 35 U.S.C. 103 as being unpatentable over Jain et al. (US Publication 2019/0173851) hereafter Jain, in view of BHATTACHARYA et al. (US Publication 2022/0021687) hereafter BHATTACHARYA, in further view of Hu et al. (US Publication 2014/0056146) hereafter Hu.
As per claim 1, Jain disclose a system comprising: one or more processors; and one or more computer-readable media storing instructions that, when executed by the one or more processors, cause the one or more processors to perform operations comprising: receiving, at a load balancer, a first packet of a data-plane traffic flow, the first packet indicating a first association between a first security parameter index (SPI) value and a set of 5-tuple values (paragraphs 0030, 0052-53: policies requires encryption for establishing tunnels and use SPI and packet attributes (5-tuple header values)); sending, by the load balancer, the first packet to a first node based at least in part on the first SPI value and the set of 5-tuple values (paragraphs 0036, 0058-59: policy specified for a particular encryption tunnel with matching parameter/keys (SPI)); receiving, at the load balancer, a second packet including the set of 5-tuple values and a second SPI value to the load balancer (paragraphs 0067-69, 0079-81: use of IP rule table to specify policies and to encrypt traffic for different source and destination subnets using different types of encryption); determining, by the load balancer and based at least in part on the set of 5-tuple values being associated with the second SPI value, to the second packet is part of the data-plane traffic flow (paragraphs 0009-10, 0053, 0074: each data packets with 5-tuple values about source and destination with multiple traffic distribution); and sending, by the load balancer, the second packet to the second node, the second packet indicating a second association between the second SPI value and the set of 5-tuple values instead of the first association (paragraphs 0053, 0079-81). Although, Jain discloses tunnel interface key corresponding to different packet destinations via different tunnels, but expressly fails to disclose sending, from the load balancer, a rekey request; causing, by the load balancer, a migration of the data-plane traffic flow to terminate at a second node.
However, in the same field of endeavor, BHATTACHARYA discloses the claimed limitation of sending, from the load balancer, a rekey request; causing, by the load balancer, a migration of the data-plane traffic flow to terminate at a second node (paragraphs 0041, 0045, 0056, 64-66: rekeying includes generating a second SPI value and securing network traffic to the new destination endpoint).
Accordingly, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate BHATTACHARYAs’ teaching with Jain. One would be motivated to issue the rekey to manage the load/traffic by the compute resource that the in-bound security resource to improve the security of network communication.
Although, Jain-BHATTACHARYA discloses but fail to expressly disclose a second packet including the set of 5-tuple values and a second SPI value that is unknown to the load balancer; determining, by the load balancer and based at least in part on the set of 5-tuple values being associated with the second SPI value that is unknown to the load balancer, that the second packet is part of the data-plane traffic flow.
However, in the same field of endeavor, Hu discloses the claimed limitation of a second packet including the set of 5-tuple values and a second SPI value that is unknown to the load balancer; determining, by the load balancer and based at least in part on the set of 5-tuple values being associated with the second SPI value that is unknown to the load balancer, that the second packet is part of the data-plane traffic flow (paragraphs 0036, 0038-40: data packets are load generating SPI value for each data packet and sending data packet to proper servers accordingly).
Accordingly, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate Hus’ teaching with Jain-BHATTACHARYA for using load balancer having second data plane traffic with SPI. One would be motivated to provide certain way receiving IPSec traffic via the load balancer and distribute encrypted data messages with header modification and select server according to the encryption parameters/keys for providing services to appropriate destination. Thereby, increasing the load balancing of network traffic flows in multi-node system.
As per claim 2, Jain discloses the system wherein sending the rekey request is based at least in part on an indication that a load capacity associated with the first node meets or exceeds a threshold load capacity (paragraphs 0090: encryption tunnel is chosen based on load-balancing algorithm, and each new encryption tunnel is assigned an encryption-parameter-set identifier based on a current load).
As per claim 3, Jain discloses the system wherein the load capacity is a first load capacity, the operations further comprising: determining that a second load capacity associated with the second node is less than the threshold load capacity, is further based at least in part on the second load capacity being less than the threshold load capacity (paragraphs 0053, 0090: encryption tunnel is chosen based on load-balancing algorithm, and each new encryption tunnel is assigned an encryption-parameter-set identifier based on a current load). Although, Jain discloses multiple interfaces with set of parameters with load balancer in multi-node system, but fail to expressly disclose wherein causing the migration of the data-plane traffic flow to terminate at the second node is further based at least in part on the part on the second load capacity being less than the threshold load capacity.
However, in the same field of endeavor, BHATTACHARYA discloses the claimed limitation of migration of the data-plane traffic flow to terminate at the second node is further based at least in part on the part on the second load capacity being less than the threshold load capacity (paragraphs 0045, 0064-66).
The same motivation that was utilized in the combination of claim 1 applies equally as well to claim 3.
As per claim 4, Jain discloses the system the operations further comprising sending a message to the second node based at least in part on receiving the indication, the message configured to prompt the second node to provision one or more interfaces to be used to receive the data-plane traffic flow (paragraphs 0067-69, 0079-81).
As per claim 5, although Jain discloses tunnel interface key corresponding to different packet destinations via different tunnels, but expressly fails to disclose monitoring, by the load balancer and based at least in part on the rekey request, SPI values that are unknown to the load balancer.
However, in the same field of endeavor, BHATTACHARYA discloses the claimed limitation of monitoring, by the load balancer and based at least in part on the rekey request, SPI values that are unknown to the load balancer (paragraphs 0041, 0056, 0071-74: rekeying includes generating a second SPI value and securing network traffic to the new destination endpoint).
The same motivation that was utilized in the combination of claim 1 applies equally as well to claim 5.
As per claim 6, Jain discloses the system the operations further comprising receiving, at the load balancer, an indication of a status associated with the first node (paragraphs 0067, 0071). although Jain discloses tunnel interface key corresponding to different packet destinations via different tunnels, but expressly fails to disclose wherein sending the rekey request is based at least in part on the status associated with the first node.
However, in the same field of endeavor, BHATTACHARYA discloses the claimed limitation of sending the rekey request is based at least in part on the status associated with the first node (paragraphs 0041, 0056, 0071-74: rekeying includes generating a second SPI value and securing network traffic to the new destination endpoint).
The same motivation that was utilized in the combination of claim 1 applies equally as well to claim 6.
As per claim 7, Jain discloses the system wherein the first node is a first data node, the second node is a second data node, and the data-plane traffic flow is encapsulating security payload (ESP) traffic, the operations further comprising sending, to a control node that processes internet key exchange (IKE) traffic, a request for the control node to generate the second SPI value (paragraphs 0067-69, 0072; BHATTACHARYA: 0032-35, 0041-42).
Claim 8 is an Independent claim with similar limitation but different in preamble and hence are rejected based on the rejection provided in claim 1.
Claims 9-14 are listed all the same elements of claims 2-7, respectively. Therefore, the supporting rationales of the rejection to claims 2-7 apply equally as well to claims 9-14, respectively.
Claim 15 is an Independent claim with similar limitation but different in preamble and hence are rejected based on the rejection provided in claim 1.
Claims 16-20 are listed all the same elements of claims 2-6 respectively. Therefore, the supporting rationales of the rejection to claims 2-6 apply equally as well to claims 16-20, respectively.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to FARZANA B HUQ whose telephone number is (571) 270-3223. The examiner can normally be reached Monday - Friday: 8:30-5:30 ET.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Emmanuel L Moise can be reached at 571-272-3865. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/FARZANA B HUQ/Primary Examiner, Art Unit 2455