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 .
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 obviousness-type 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); and 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 a nonstatutory double patenting ground provided the conflicting application or patent either is shown to be commonly owned with this application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement.
Effective January 1, 1994, a registered attorney or agent of record may sign a terminal disclaimer. A terminal disclaimer signed by the assignee must fully comply with 37 CFR 3.73(b).
Claims 21-23, 25-27, 31-33 and 35-37 are rejected on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claims 1-6 and 11-16 and 19 of the issued patent Park et al., US 12,177,137 B2 (Park’137 hereinafter), in view of Savov et al., US 2018/0359162 A1 (Savov hereinafter). Although the conflicting claims are not identical, they are not patentably distinct from each other because the subject matter claimed in the instant application is covered by the subject matter of the issued patent 12,177,137.
The table below shows a side by side comparison of the instant application over the issued patent.
Instant Application
Issued patent US 12,177,137
21. (New) An overlay network comprising:
at least one virtual network switch (VNS), each VNS being installed within a corresponding first processing endpoint which is logically above a virtualization layer of a virtual network, the VNS being implemented as at least one application running on at least one virtual machine and configured to intercept and switch data packets transmitted on or above a data link layer (L2) of traditional OSI model, thereby performing packet switching among the virtual network of virtual machines and above a physical layer, wherein the VNS comprises:
(a) a redundant pair of virtual machines (VMs) configured to connect to at least one virtual network interface controller (VNIC), each VNIC being installed within a corresponding second processing endpoint which is also logically above the virtualization layer of the virtual network, the second processing endpoint being separate from the first processing endpoint; and
(b) an elastically scalable pool of one or more VMs, each VMV comprising a virtual switch controller (VSC) and a replicator node,
wherein the VSC is configured to control the replicator node, and the replicator node is configured to replicate and route the data packets.
22. (New) The overlay network of claim 21, wherein each VNS comprises a network virtual appliance configured to execute over one or more VMs.
23. (New) The overlay network of claim 22, wherein the at least one VNS is configured to be scaled by adding or removing VMs in the elastically scalable pool of one or more VMs, thereby respectively increasing or decreasing a speed and/or a capacity of the overlay network.
25. (New) The overlay network of claim 21, wherein the at least one VNS comprises multiple VNSs which are configured to form a mesh.
26. (New) The overlay network of claim 21, wherein each VNIC connects the corresponding second processing endpoint to the VNS.
27. (New) The overlay network of claim 26, wherein each VNIC facilitates data packet delivery
to and/or retrieval from the corresponding second processing endpoint.
31. (New) A virtual network switch (VNS) installed within a first processing endpoint which is logically above a virtualization layer of a virtual network,
the VNS being implemented as at least one application running on at least one virtual machine and configured to intercept and switch data packets transmitted on or above a data link layer (L2) of traditional OSI model, thereby performing packet switching among the virtual network of virtual machines and above a physical layer, the VNS comprising:
(a) a redundant pair of virtual machines (VMs) configured to connect to at least one virtual network interface controller (VNIC),
each VNIC being installed within a corresponding second processing endpoint which is also logically above the virtualization layer of the virtual network, the second processing endpoint being separate from the first processing endpoint; and
(b) an elastically scalable pool of one or more VMs, each VM comprising a virtual switch controller (VSC) and a replicator node, wherein the VSC is configured to control the replicator node, and the replicator node is configured to replicate and route the data packets.
32. (New) The VNS of claim 31, wherein the VNS comprises a network virtual appliance configured to execute over one or more VMs.
33. (New) The VNS of claim 32, wherein the VNS is configured to be scaled by adding or removing VMs in the elastically scalable pool of one or more VMs, thereby respectively increasing or decreasing a speed and/or a capacity of the VNS.
35. (New) The VNS of claim 31, wherein the VNS comprises multiple VNSs which are configured to form a mesh.
36. (New) The VNS of claim 31, wherein each VNIC connects the corresponding second processing endpoint to the VNS.
37. (New) The VNS of claim 36, wherein each VNIC facilitates data packet delivery to and/or retrieval from the corresponding second processing endpoint.
1. An overlay network comprising:
at least one virtual network switch (VNS), each VNS being installed within a corresponding first processing endpoint which is logically above a virtualization layer of a virtual network, the VNS being implemented as at least one application running on at least one virtual machine and configured to intercept and switch data packets transmitted on or above the data link layer (L2) of traditional OSI model, thereby performing packet switching among the virtual network of virtual machines and above a physical layer, wherein the VNS comprises:
(a) a first manager element configured to connect to at least one virtual network interface controller (VNIC), each VNIC being installed within a corresponding second processing endpoint which is also logically above the virtualization layer of the virtual network, the second processing endpoint being separate from the first processing endpoint;
(b) a first replicator node configured to replicate and route the data packets; and
(c) a first switch controller configured to control the first replicator node.
2. The overlay network of claim 1, wherein each VNS comprises a network virtual appliance configured to execute over one or more virtual machines.
3. The overlay network of claim 2, wherein the at least one VNS is configured to be scaled by adding or removing virtual machines over which the VNS executes, thereby respectively increasing or decreasing a speed and/or a capacity of the overlay network.
4. The overlay network of claim 1, wherein the at least one VNS comprises multiple VNSs which are configured to form a mesh.
5. The overlay network of claim 1, wherein each VNIC connects the corresponding second processing endpoint to the VNS.
6. The overlay network of claim 5, wherein each VNIC facilitates data packet delivery to and/or retrieval from the corresponding second processing endpoint.
11. A method for operating an overlay network, the overlay network comprising at least one virtual network switch (VNS), each VNS being installed within a corresponding first processing endpoint which is logically above a virtualization layer of a virtual network, the method comprising:
…
wherein the VNS is implemented as at least one application running on at least one virtual machine and configured to intercept and switch data packets transmitted on or above the data link layer (L2) of traditional OSI model, thereby performing packet switching among the virtual network of virtual machines and above a physical layer;
…
connecting, by a first manager element of the VNS, to at least one virtual network interface controller (VNIC),
each VNIC being installed within a corresponding second processing endpoint which is also logically above the virtualization layer of the virtual network, the second processing endpoint being separate from the first processing endpoint, …
replicating, by a first replicator node of the VNS, data packets received from the at least one VNIC; and routing, by the first replicator node, the data packets according to control by a first switch controller of the VNS.
12. The method of claim 11, wherein each VNS comprises a network virtual appliance configured to execute over one or more virtual machines.
13. The method of claim 12, further comprising: scaling the at least one VNS by adding or removing one or more virtual machines over which the VNS executes, thereby respectively increasing or decreasing a speed and/or a capacity of the overlay network.
14. The method of claim 11, wherein the at least one VNS comprises multiple VNSs which are configured to form a mesh.
15. The method of claim 11, wherein each VNIC connects the corresponding second processing endpoint to the VNS.
16. The method of claim 15, wherein each VNIC facilitates data packet delivery to and/or retrieval from the corresponding second processing endpoint.
Regarding claim 21, Park’137 discloses an overlay network comprising:
at least one virtual network switch (VNS), each VNS being installed within a corresponding first processing endpoint which is logically above a virtualization layer of a virtual network, the VNS being implemented as at least one application running on at least one virtual machine and configured to intercept and switch data packets transmitted on or above a data link layer (L2) of traditional OSI model, thereby performing packet switching among the virtual network of virtual machines and above a physical layer, wherein the VNS comprises:
(a) virtualization layer of the virtual network, the second processing endpoint being separate from the first processing endpoint; and
(b)
wherein the VSC is configured to control the replicator node, and the replicator node is configured to replicate and route the data packets (see Park’137, claim 1).
Regarding claim 22, Park’137 discloses wherein each VNS comprises a network virtual appliance configured to execute over one or more VMs (see Park’137, claim 2).
Regarding claim 23, Park’137 discloses wherein the at least one VNS is configured to be scaled by adding or removing VMs in the elastically scalable pool of one or more VMs, thereby respectively increasing or decreasing a speed and/or a capacity of the overlay network (see Park’137, claim 3).
Regarding claim 25, Park’137 discloses wherein the at least one VNS comprises multiple VNSs which are configured to form a mesh (see Park’137, claim 4).
Regarding claim 26, Park’137 discloses wherein each VNIC connects the corresponding second processing endpoint to the VNS (see Park’137, claim 5).
Regarding claim 27, Park’137 discloses wherein each VNIC facilitates data packet delivery
to and/or retrieval from the corresponding second processing endpoint (see Park’137, claim 6).
Regarding claim 31, Park’137 discloses a virtual network switch (VNS) installed within a first processing endpoint which is logically above a virtualization layer of a virtual network, the VNS being implemented as at least one application running on at least one virtual machine and configured to intercept and switch data packets transmitted on or above a data link layer (L2) of traditional OSI model, thereby performing packet switching among the virtual network of virtual machines and above a physical layer, the VNS comprising:
(a)
each VNIC being installed within a corresponding second processing endpoint which is also logically above the virtualization layer of the virtual network, the second processing endpoint being separate from the first processing endpoint; and
(b)
Regarding claim 32, Park’137 discloses wherein the VNS comprises a network virtual appliance configured to execute over one or more VMs (see Park’137, claim 12).
Regarding claim 33, Park’137 discloses wherein the VNS is configured to be scaled by adding or removing VMs in the elastically scalable pool of one or more VMs, thereby respectively increasing or decreasing a speed and/or a capacity of the VNS (see Park’137, claim 13).
Regarding claim 35, Park’137 discloses wherein the VNS comprises multiple VNSs which are configured to form a mesh (see Park’137, claim 14).
Regarding claim 36, Park’137 discloses wherein each VNIC connects the corresponding second processing endpoint to the VNS (see Park’137, claim 15).
Regarding claim 37, Park’137 discloses wherein each VNIC facilitates data packet delivery to and/or retrieval from the corresponding second processing endpoint (see Park’137, claim 16).
Regarding claims 21 and 31, Park’137 does not explicitly discloses a redundant pair of virtual machines (VMs) … an elastically scalable pool of one or more VMs.
In the same field of endeavor (e.g., communication system) Savov discloses a method related to scaling resources managed by a cloud automation system that comprises a redundant pair of virtual machines (VMs) … an elastically scalable pool of one or more VMs (Savov, paragraph [0025], For example, after a cloud system has been deployed, the designer may allocate one virtual machine for operation and, because the virtual machine may not be enough to operate under the total load of the system, the designer may utilize a scalable virtual machine. In such an example, the virtual machine may be scaled out to two or more virtual machines (i.e., redundant pair of scalable pool of virtual machines) based on certain parameters and/or may be scaled into a less amount of virtual machines based on certain parameters).
Thus, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the system of Park’137 by using the features, as taught by Savov, in order to support method for scale in and/or scale out resources managed by a cloud automation system (see Savov, abstract and paragraph [0001]).
Claims 24, 28-30, 34 and 38-40 reciting the similar features, are also rejected based on the similar rational.
Examiner’s Comments
Claims 21-40 are subjected to double patenting. The claims would be allowable if amended or file terminal disclaimer to overcome the rejections set forth in this Office action above.
Examiner's Note
Following prior arts are made of record and not relied upon is considered pertinent to applicant's disclosure.
1. Savov et al., US 2018/0359162 A1: discloses a method for facilitating scaling in and/or scaling out of cloud and/or virtualized platform resources managed by a cloud automation system in order to provide a more customizable cloud/virtual environment for an end user or customer (see Savov, abstract and paragraph [0025]).
2. TREGENZA DANCER, US 2021/0377078 A1 (disclosed prior art, cited in IDS of 01/20/2026): discloses a virtualized environment that comprises a physical underlay network, a first and second overlay network which is an overlay of the physical underlay network and associated with a set of network addresses and virtualized applications each having an execution environment and being associated with the network addresses (see Tregenza, abstract).
3. Davie et al., US 2015/0100704 A1: discloses a hypervisor receiving a packet from a machine and sending the packet to a service node in order to broadcast the packet to other machines in the virtual network that are in the same broadcast domain. When the service node receives the packet, it replicates the packet and sends the packet to each of the TOR switches and the TOR switches send the packet out to relevant Ports and VLANs (see Davie, Fig. 17, abstract and paragraphs [0179]-[0181]).
Conclusion
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/OBAIDUL HUQ/Primary Examiner, Art Unit 2473 Dated: 10/08/2026
