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 .
Response to Preliminary Amendment
The preliminary amendments filed 1/27/2025 have been entered.
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 21-40 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 respectively of U.S. Patent No. 11,726,696. Although the claims at issue are not identical, they are not patentably distinct from each other because the ‘696 patents claims contain all of the same subject matter as the respective claims of this instant application.
As a terminal disclaimer exists between U.S. Patent No. 11,726,969 (used above to reject the claim under NSDP) and U.S. Patent No. 12,131,050. The applicant has admitted that the ‘050 claims are not patently distinct from the ‘969 claims. As such, the claims of this application are also rejected on the ground of nonstatutory double patenting as being unpatentable over U.S. Patent No. 12,131,050.
Please note that MPEP § 804 states:
“A complete response to a nonstatutory double patenting (NSDP) rejection is either a reply by applicant showing that the claims subject to the rejection are patentably distinct from the reference claims or the filing of a terminal disclaimer in accordance with 37 CFR 1.321 in the pending application(s) with a reply to the Office action (see MPEP § 1490 for a discussion of terminal disclaimers). Such a response is required even when the nonstatutory double patenting rejection is provisional. As filing a terminal disclaimer, or filing a showing that the claims subject to the rejection are patentably distinct from the reference application’s claims, is necessary for further consideration of the rejection of the claims, such a filing should not be held in abeyance. Only objections or requirements as to form not necessary for further consideration of the claims may be held in abeyance until allowable subject matter is indicated. Replies with an omission should be treated as provided in MPEP § 714.03. “
In accordance with MPEP § 804 and §714.03 the examiner will hold any response/amendments to this office action as NON-COMPLIANT without any additional extensions of time that do not contain one of:
An approved Terminal Disclaimer, OR
A Showing that the claims subject to the rejection are patentably distinct from the reference claims.
In regards to b.) The showing must be made against the claims subject to the rejection (not amended claims), as such the claims as they were originally written and rejected. A showing against amended claims is NOT proper, as the original claims have already been examined (i.e. elected by original presentation, see MPEP §821.03), and presenting all amended claims directed to another patently distinct invention will result in the claims not being entered and being the response designated as nonresponsive. A proper showing or a filing of a terminal disclaimer is required for further consideration of the rejection of the claims. Depending on the claims that have been filed and rejected under NSDP, it may be practically impossible for any arguments and/or evidence to be capable of providing a proper showing that the claims as filed are patentably distinct. In this case, the applicant should file the terminal disclaimer, as it is required for a complete response to this action, and further consideration of the application.
As show below, the filing of a Terminal Disclaimer is not an admission, creates no issues of estoppel, and can be petitioned to be removed once the claims are in condition for allowance and the applicant believes (and can show) the allowable claims are now patentably distinct from the original reference claims.
“The filing of a terminal disclaimer to obviate a rejection based on nonstatutory double patenting is not an admission of the propriety of the rejection. Quad Environmental Technologies Corp. v. Union Sanitary District, 946 F.2d 870, 20 USPQ2d 1392 (Fed. Cir. 1991). In Quad Environmental Technologies, the court indicated that the "filing of a terminal disclaimer simply serves the statutory function of removing the rejection of double patenting, and raises neither a presumption nor estoppel on the merits of the rejection." “(MPEP § 804.02).
“If a terminal disclaimer is filed in an application in which the claims are then canceled or otherwise shown to be patentably distinct from the reference claims, the terminal disclaimer may be withdrawn before issuance of the patent by filing a petition under 37 CFR 1.182 requesting withdrawal of the recorded terminal disclaimer. A terminal disclaimer may not be withdrawn after issuance of the patent. See MPEP § 1490, subsection VIII, for a complete discussion of withdrawal of a terminal disclaimer.” (MPEP § 804.02).
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(s) 21-25, 30-36, and 40 is/are rejected under 35 U.S.C. 103 as being unpatentable over Dalal (US 9,092,375 as listed on the IDS dated 10/28/2024).
In regards to claims 21, 31, and 36, taking claim 31 as exemplary Dalal teaches
a memory comprising machine executable code; and a processor coupled to the memory, the processor configured to execute the machine executable code to cause the processor to perform operation comprising: (C3:9-C4:3 teaches that memory of the client and backup computer can store code that can be executed by associated processors to perform the actions/methods described)
storing snapshot data of snapshots into objects within a remote object store; (fig. 1, C5:18-C6:2 teaches backup images (snapshot data of snapshots into images) are stored in a storage device 107A (image/object store) of a backup server 102 (i.e. the storage is remote to the client system 100)
Dalal may not explicitly teach
maintaining a cloud block map within local storage remote to the remote object store; (bolded for emphasis)
caching a block of the snapshot data from an object within the remote object store to the cloud block map within the local storage as a cached block; and
providing a client with access to the cached block, wherein an integrity of the snapshot data stored within the object is preserved by not propagating modifications to the cached block back to the remote object store.
Dalal does teach in fig. 1 and C7:12-31 that the volume driver 122 (part of the client (i.e. local) can update the metadata of the volume 101 (local storage remote to the storage device 107a (remote object store), and the metadata can indicate when the new data blocks are present locally (i.e. cached) in the volume 101. Fig. 4 and C11:42-C12:12 shows that when a read request (step 503) is directed to a block resident in the local volume (i.e. cached, steps 505 and yes to step 507), the blocks from the local (cached) volume are retrieved (step 515) and returned in response to the read request (step 517, i.e. providing the client access to the cached blocks). C5:58-C6:13 teaches that write requests directed towards the volume 101 (i.e. modifications), and that these modifications may also be transmitted back to the backup system or that new backup images can be created periodically.
Please note that MPEP 2173.05(i) states that “If alternative elements are positively recited in the specification, they may be explicitly excluded”.
As such, it would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to have been able to use their knowledge and the teachings/suggestions gleaned above from Dalal to modify the system of Dalal such that the data and metadata can explicitly be labelled as a “cloud block map” as it tracks which data is locally (i.e. cached) in the local volume as compared to the remote image storage and being able to cache data to the “cloud block map” stored in the local volume for access by the (local) client, and to refrain from transmitting changes/modifications of the data back to the remote image store (i.e. to remain integrity of the backup storage image), and instead periodically create a new backup image (i.e. which maintains the integrity of the other stored backup images). The motivation for making such changes is that locally tracking and caching backup images from a remote storage allows for much faster/responsive access to the data, and that periodically instead of continuously backing up modifications from the local store/cache can achieve enhanced data integrity and reduce data/bandwidth consumption when the same data is continuously modified. One of ordinary skill in the art prior to the effective filing date of the claimed invention would have been able to make these modifications given the teaching/suggestions of Dalal and achieved predictable results from these modifications.
In regards to claims 22 and 32, Dalal further teaches and/or makes obvious
wherein the modifications to the cached block are not applied to an on-demand volume being stored using the snapshot data. (fig. 2 shows that a backup image 104 can be stored locally (i.e. on demand volume), and C5:58-C6:13 teaches that write requests directed towards the volume 101 (i.e. modifications), and that these modifications may also be transmitted back to the backup image 104 (i.e. they do not have to be applied to the backup image 104 (on-demand volume) on the local storage device 140) or that new backup images can be created periodically.
In regards to claims 23 and 33, Dalal further teaches and/or makes obvious
creating an entry within the cloud block map to map a cloud block number of the block to a volume block number of the cached block. (fig. 4, C11:50-59 teaches a backup image of the remote store is selected for a data source for a local volume (i.e. blocks of the backup image are mapped to blocks of the locally created volume) and the C11:60-C12:12 the metadata contains the information (i.e. entries for each block) if the block is currently present in the local volume or the data needs to still be retrieved from the indicated block from the backup image)
In regards to claims 24 and 34, Dalal further teaches and/or makes obvious
in response to a request targeting a first block, evaluating the cloud block map to determine whether the first block is cached through the cloud block map within the local storage. (fig. 4 and C11:42-C12:12 when blocks are requested, steps 505 and 507 evaluate (using the metadata (i.e. cloud block map) if the requested blocks are present in the local (cached) volume.
In regards to claims 25 and 35, Dalal further teaches and/or makes obvious
in response to a request targeting a first block, evaluating the cloud block map to determine whether the first block is cached through the cloud block map within the local storage; and in response to the cloud block map lacking an entry for the first block, accessing the remote object store to retrieve the first block from one or more objects. (fig. 4 and C11:42-C12:12 when blocks are requested, steps 505 and 507 evaluate (using the metadata (i.e. cloud block map) if the requested blocks are present in the local (cached) volume. If they aren’t present (no to step 507, i.e. lacking an indication/entry that the block is stored in local (cached) volume) then the blocks are received from the backup image at the remote server (i.e. the remote object store is access to retrieve the requested block from the backup image (object))
In regards to claims 30 and 40, Dalal further teaches and/or makes obvious
updating the cloud block map based upon progress of a restore process that restores the snapshot data to an on-demand volume. (C7:65-C8:29 teaches that the restore process for blocks not specifically requested can continue in the background and this may continue until all the blocks are restored and that the metadata (cloud block map) is updated to indicate which blocks are currently present in the local volume.
Claim(s) 26-29, 37-39 is/are rejected under 35 U.S.C. 103 as being unpatentable over Dalal (US 9,092,375 as listed on the IDS dated 10/28/2024) in view of Chou (US 2011/0271067).
In regards to claim 26, Dalal may not explicitly teach
determination that a last time the block was accessed through the cloud block map exceeds a threshold; and evicting the block from the cloud block map.
Chou teaches in ¶35 that according to accessibility metrics it can be determined whether snapshot data should be retained locally or sent to the cloud provided (i.e. evicted) from the local storage. Fig. 3. Shows that one of the accessibility metrics is recency (i.e. the last time a block was accessed)
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to have incorporated the teaching/suggestion of Chou in order to modify the system of Dalal such that data that had been indicated as being cached in the local volume (i.e. the metadata (cloud block map) indicates the data is stored locally) but not recently access can be evicted from the local storage device. This modification improves the system as it frees up space on the local storage device (cache) to store more data that is more likely to be accessed.
In regards to claims 27 and 37, Dalal may not explicitly teach
determining that a last time the block was accessed through the cloud block map does not exceed a threshold; and retaining the block within the cloud block map.
Chou teaches in ¶35 that according to accessibility metrics it can be determined whether snapshot data should be retained locally or sent to the cloud provided (i.e. evicted) from the local storage. Fig. 3. Shows that one of the accessibility metrics is recency (i.e. the last time a block was accessed)
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to have incorporated the teaching/suggestion of Chou in order to modify the system of Dalal such that data that had been indicated as being cached in the local volume (i.e. the metadata (cloud block map) indicates the data is stored locally) and recently access can be continued to be stored in the local (cached) storage device. This modification improves the system as it can improve the hit rate of the local (cached) storage.
In regards to claims 28 and 38, Dalal may not explicitly teach
maintaining temperature metrics for tracking cached blocks within the cloud block map; and
utilizing the temperature metrics to determine whether to retain or evict the cached blocks from the cloud block map.
Chou teaches in ¶35 that according to accessibility metrics it can be determined whether snapshot data should be retained locally or sent to the cloud provided (i.e. evicted) from the local storage. Fig. 3. Shows that the accessibility metrics are recency and frequency (i.e. temperature metrics)
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to have incorporated the teaching/suggestion of Chou in order to modify the system of Dalal such that accessibility (i.e. temperature) metrics of frequency and recency can be used to determine whether data should be retained locally or moved/evicted to remote storage. This modification improves the system as it can improve the hit rate of the local (cached) storage as it frees up space for higher temperature data and ensures that the higher temperature data stays in the local cache.
In regards to claims 29 and 39, Dalal may not explicitly teach
executing an eviction scanner to evaluate the cloud block map to determine whether to retain or evict the cached blocks from the cloud block map.
Chou teaches in ¶35 that according to accessibility metrics it can be determined whether snapshot data should be retained locally or sent to the cloud provided (i.e. evicted) from the local storage. Fig. 3. Shows that the accessibility metrics are recency and frequency (i.e. temperature metrics). Fig. 7 shows that data can be checked in 710 (i.e. an eviction scanner) to see if the data satisfies accessibility metrics (i.e. evaluates) to determine if the data should continue to be retained locally or if it should be moved/evicted to the cloud (remote) storage.
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to have incorporated the teaching/suggestion of Chou in order to modify the system of Dalal such that the locally stored data can be scanned and evaluated according to accessibility metrics of frequency and recency in order to determine whether data should continue to be retained locally or moved/evicted to remote storage. This modification improves the system as it can improve the hit rate of the local (cached) storage as it frees up space for higher temperature data and ensures that the higher temperature data stays in the local cache.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure:
Mitkar (US 2020/0401489) teaches indexing of files virtual block level backup copies.
Taylor (US 9,852,149) teaches methods for transferring and caching cloud files in a distributed file system.
Kimura (US 2018/0004798) teaches storing data in volatile snapshot caches from snapshots stored in distributed NVRAM.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JASON W BLUST whose telephone number is (571)272-6302. The examiner can normally be reached 12-8:30 EST.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Hosain Alam can be reached at (571) 272-3978. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/JASON W BLUST/Primary Examiner, Art Unit 2132