Non-Final Office 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.
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Claims 1-7 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-7 of U.S. Patent No. 12,158,824 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because claims 1-7 of U.S. Patent No. 12,158,824 B2 contain(s) every element of claim(s) 1-7 of the instant application and as such anticipate(s) claim(s) 1-7 of the instant application.
The following is a mapping of the claims:
Referring to claim 1:
Claim 1 of U.S. 12,158,824 B2 discloses:
A computer-implemented method performed by one or more processors of a multi-site distributed storage system comprising:
determining, with a second storage cluster of the multi-site distributed storage system (a multi-site distributed storage system with a second storage cluster), whether heartbeat information from one or more storage objects of a consistency group (CG) of a first set of CGs of a first storage cluster of the multi-site distributed storage system (a multi-site distributed storage system with a first storage cluster having a first set of consistency groups) is received during a time period (determining, with the second storage cluster, whether heartbeat information from one or more storage objects of a CG of the first set of CGs is received during a time period).
sending a single bulk role change call with a cluster identifier from the second storage cluster to an external mediator to provide a role change from a follower to a leader in a mirrored CG of a second set of CGs of the second storage cluster (a second storage cluster having a second mirrored set of CGs initially with a follower role) based on an out of sync (OOS) state for the CG of the first set of CGs (sending a single bulk role change call with a cluster identifier from the second cluster to an external mediator to provide a role change from follower to leader in the second set of CGs based on the OOS state for the CG of the first set of CGs) when heartbeat information is not received from the one or more storage objects of the CG of the first set of CGs (determining an out of sync (OOS) state for a data replication relationship between the CG of the first set of CGs and a mirrored CG of the second set of CGs when the heartbeat information is not received during the time period).
Claims 2-7 are anticipated by claims 2-7 of U.S. Patent No. 12,158,824 B2.
“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).
Claims 8-14 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-7 of U.S. Patent No. 12,158,824 B2 in view of the well-known practice of implementing a method with a non-transitory computer-readable storage medium embodying a set of instructions executed by a processor.
Referring to claim 8:
Claim 1 of U.S. 12,158,824 B2 discloses:
determine, with a second storage cluster of the multi-site distributed storage system (a multi-site distributed storage system with a second storage cluster), whether heartbeat information from one or more storage objects of a consistency group (CG) of a first set of CGs of a first storage cluster of the multi-site distributed storage system (a multi-site distributed storage system with a first storage cluster having a first set of consistency groups) is received during a time period (determining, with the second storage cluster, whether heartbeat information from one or more storage objects of a CG of the first set of CGs is received during a time period).
send a single bulk role change call with a cluster identifier from the second storage cluster to an external mediator to provide a role change from a follower to a leader in a mirrored CG of a second set of CGs of the second storage cluster (a second storage cluster having a second mirrored set of CGs initially with a follower role) based on an out of sync (OOS) state for the CG of the first set of CGs (sending a single bulk role change call with a cluster identifier from the second cluster to an external mediator to provide a role change from follower to leader in the second set of CGs based on the OOS state for the CG of the first set of CGs) when heartbeat information is not received from the one or more storage objects of the CG of the first set of CGs (determining an out of sync (OOS) state for a data replication relationship between the CG of the first set of CGs and a mirrored CG of the second set of CGs when the heartbeat information is not received during the time period).
Claim 1 of US 12,158,824 B2 additionally discloses a computer-implemented method. However claim 1 of US 12,158,824 B2 does not explicitly disclose a non-transitory computer-readable storage medium embodying a set of instructions, which when executed by one or more processing resources of a multi-site distributed storage system cause the one or more processing resources to perform the method of claim 1. The Examiner takes official notice that it is well-known to implement a computer-implemented method with a non-transitory computer-readable storage medium embodying a set of instructions executed by a processor. It would have been obvious to one of ordinary skill at the time of filing of the invention to implement the computer-implemented method of claim 1 with a non-transitory computer-readable storage medium embodying a set of instructions executed by a processor. A person of ordinary skill in the art would have been motivated to make the modification because using an apparatus, device, computer system, or software to perform a method puts into practice the method and gives it a real world application.
Claims 2-7 of US 12,158,824 B2 disclose the limitations of claims 9-14.
Allowable Subject Matter
Claims 1-14 would be allowable if the non-statutory double patenting rejection was overcome.
Claims 15-20 are allowed.
The following is a statement of reasons for the indication of allowable subject matter.
With respect to claims 1 and 8, the prior art does not teach or reasonably suggest, in combination with the remaining limitations, sending a single bulk role change call with a cluster identifier from the second storage cluster to an external mediator to provide a role change from a follower to a leader in a mirrored CG of a second set of CGs of the second storage cluster based on an out of sync (OOS) state for the CG of the first set of CGs when heartbeat information is not received from the one or more storage objects of the CG of the first set of CGs.
With respect to claim 15, the prior art does not teach or reasonably suggest, in combination with the remaining limitations, a multi-site distributed storage system comprising: a primary storage site with a first cluster having a first set of consistency groups (CGs) initially with a leader role; and a secondary storage site with a second cluster having a second mirrored set of CGs initially with a follower role, wherein one or more processors is configured to determine whether heartbeat information from one or more storage objects of a consistency group (CG) of the first set of CGs of the first storage cluster of the multi-site distribution storage system is received by the second cluster during a time period; and to start an automatic unplanned failover (AUFO) with a single execution context for a mirrored CG of the second mirrored set of CGs when the heartbeat information from one or more storage objects of the CG of the first set of CGs is not received during the time period.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MICHAEL C MASKULINSKI whose telephone number is (571)272-3649. The examiner can normally be reached Monday-Friday 8:00 am-5:00 pm.
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/MICHAEL MASKULINSKI/Primary Examiner, Art Unit 2113