DETAILED ACTION
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 Action is responsive to amendment filed on 02/06/2026. Claims 1-20 have been examined and are pending in this application.
Terminal Disclaimer
The terminal disclaimer filed on 02/06/2026 disclaiming the terminal portion of any patent granted on this application which would extend beyond the expiration date of US Patent 12,164,387 has been reviewed and is accepted. The terminal disclaimer has been recorded.
Response to Arguments
Applicant's arguments filed 02/06/2026 have been fully considered but they are not persuasive.
Applicant argues, page 10 of the remarks, “Chopra does not disclose ‘calculating … a quantity of proxy virtual machines to use to read the data from the source virtual machine,’ as recited in independent claim 1.”
The Examiner respectfully disagrees. The Examiner submits that a claim term, in this case “calculating”, is given its broadest reasonable interpretation (BRI) in light of the specification during the examination process. Paragraph [0099] of the instant filed specification describes calculating a number of proxy virtual machines. The paragraph states in part “To calculate the number of proxy virtual machines, the storage cluster 605 may determine a size of a virtual disk corresponding to the source virtual machine, determine a number of child jobs to perform the backup of the source virtual machine based at least in part on the size of the virtual disk, and calculate the number of proxy virtual machines based at least in part on the number of child jobs.”
The above description in paragraph [0099] fits very closely with prior art of record Chopra’s description of determining the number of proxy virtual machines to carry out the backup of the source virtual machine. Chopra calculates one or more proxy virtual machines (vProxy) are configured with a number of concurrent sessions such that the “number of sessions configured … is equal to or greater than the number of disks.” Paragraph [0051] of Chopra. That is, for each disk, at least one session is assigned to that disk for carrying out the backup operation.
Therefore, it is believed that Chopra teaches “calculating … a quantity of proxy virtual machines to use to read the data from the source virtual machine,” as recited in independent claim 1 and similarly recited in independent claims 9 and 15.
Applicant argues, pages 10-11 of the remarks, “Moreover, Chopra does not disclose ‘calculating … a quantity of proxy virtual machines … based at least in part on a total size of one or more virtual disks of the source virtual machine and a maximum quantity of child jobs per proxy virtual machine,’ as recited in independent claim 1.”
The Examiner respectfully disagrees. “Such requirements may include, for example, that a VM has a high number of disks, and thus requires one or more vProxies performing to have a number of sessions configured that is equal to or greater than the number of disks.” Paragraph [0051] of Chopra. Furthermore, the number of sessions of a vProxy was mapped to the claimed child jobs per proxy virtual machine. Chopra also teaches “One of ordinary skill in the art will appreciate that a vProxy may have any number of sessions configured, and that the quantity may depend, at least in part, on the configuration of and/or resources allocated to the vProxy (e.g., processors, storage, networking, etc.).” Paragraph [0046].
Therefore it is believed that Chopra teaches “calculating … a quantity of proxy virtual machines … based at least in part on a total size of one or more virtual disks of the source virtual machine and a maximum quantity of child jobs per proxy virtual machine,” as recited in independent claim 1 and similarly recited in independent claims 9 and 15.
Applicant’s argument regarding dependent claim 2 on page 11 of the remarks has been fully considered and is deemed not persuasive. Chopra teaches that a vProxy is configured with a number of sessions (i.e., concurrent backup jobs), paragraph [0027]. In order for a session to backup a job, the session needs to be assigned a port for transmitting/receiving backup data. Chopra describes a computing device which hosts one or more vProxies is configured with network ports, storage ports etc., paragraph [0034]. Therefore, the backup sessions (vProxies) are assigned to these ports.
In view of the foregoing remarks, independent claims 1, 9, and 15 are not in a condition for allowance. Claims depending therefrom, either directly or indirectly, are also not in a condition for allowance.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1-2, 4-6, 8-10, 12-16, and 18-20 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Applicant Provided Prior Art (APPA) Chopra et al. US 2022/0292001 (“Chopra”).
As per independent claim 1, Chopra teaches A method (“certain embodiments described herein relate to a method for managing backup operations.” Para 0002), comprising:
identifying a trigger for creation of a backup of data of a source virtual machine (“when an entity (e.g., administrator, backup scheduling software, etc.) seeking to configure and/or perform a backup or restore operation requests the operation, an appropriate vProxy having a capability that matches the requirements of a VM to be backed up may be assigned.” Para 0028), wherein creation of the backup comprises use of a proxy virtual machine mode to read the data from the source virtual machine (“To perform backup and/or restore of VMs, a proxy VM (vProxy) may be used to offload at least a portion of the workload of data transmission to and/or from backup storage devices (e.g., a data domain) to the vProxy. A vProxy may be a relatively small VM in which an operating system executes and manages software configured to perform backup and/or restore operations, which may include causing data related to VMs to be copied to a data domain (e.g., a VM backup) or to be restored from a data domain (e.g., a VM restore).” Para 0022);
calculating, to support the use of the proxy virtual machine mode for creation of the backup, a quantity of proxy virtual machines to use to read the data from the source virtual machine in accordance with the proxy virtual machine mode (“Such requirements may include, for example, that a VM has a high number of disks, and thus requires one or more vProxies performing to have a number of sessions configured that is equal to or greater than the number of disks.” Para 0051), wherein the quantity of proxy virtual machines is based at least in part on a total size of one or more virtual disks of the source virtual machine (“Such requirements may include, for example, that a VM has a high number of disks, and thus requires one or more vProxies performing to have a number of sessions configured that is equal to or greater than the number of disks.” Para 0051) and a maximum quantity of child jobs per proxy virtual machine (“a VM has a high number of disks, and thus requires one or more vProxies performing to have a number of sessions configured that is equal to or greater than the number of disks.” Para 0051. The number of sessions of Chopra is being mapped to the claimed “quantity of child jobs”);
transmitting, to the source virtual machine, a request to activate the quantity of proxy virtual machines (“In Step 230, the results of the … analyses are provided to an entity tasked with managing a virtualization environment when such an entity requests a backup or restore operation.” Para 0099 and FIGS. 2A-2B);
receiving, based at least in part on transmitting the request, the data from the source virtual machine via the quantity of proxy virtual machines (“In Step 264, the backup operation is performed.” Para 0116 and FIG. 2D).
As per dependent claim 2, Chopra discloses the method of claim 1. Chopra teaches wherein the quantity of proxy virtual machines is further based at least in part on a maximum quantity of ports per proxy virtual machine (“characteristics of a vProxy may also be assessed, such as number of sessions (i.e., concurrent backup jobs) it is configured to perform,” para 0027).
As per dependent claim 4, Chopra discloses the method of claim 1. Chopra teaches further comprising: identifying a second trigger to recover a second virtual machine at a host that supports the source virtual machine (“when an entity (e.g., administrator, backup scheduling software, etc.) seeking to configure and/or perform a backup or restore operation requests the operation, an appropriate vProxy having a capability that matches the requirements of a VM to be backed up may be assigned.” Para 0028);
selecting, based at least in part on identifying the second trigger to recover the second virtual machine, the proxy virtual machine mode to export data for recovering the second virtual machine; and exporting the data for the second virtual machine to the host via a second quantity of virtual machines in accordance with the proxy virtual machine mode (“Such requirements may include, for example, that a VM has a high number of disks, and thus requires one or more vProxies performing to have a number of sessions configured that is equal to or greater than the number of disks.” Para 0051).
As per dependent claim 5, Chopra discloses the method of claim 4. Chopra teaches further comprising: calculating the second quantity of proxy virtual machines for exporting the data based at least in part on a second quantity of virtual disks corresponding to the second virtual machine, a maximum number of data streams per virtual disk of the one or more virtual disks, or a combination thereof (“Such requirements may include, for example, that a VM has a high number of disks, and thus requires one or more vProxies performing to have a number of sessions configured that is equal to or greater than the number of disks.” Para 0051).
As per dependent claim 6, Chopra discloses the method of claim 4. Chopra teaches wherein at least one proxy virtual machine is used for creating the backup of the data of the source virtual machine and for exporting the data for the second virtual machine (“the backup and restore management device (122) to obtain and store vProxy health data items, characteristics, and throughput data, and perform various types of analysis based on such data items to assign the vProxies to certain VMs as preferred vProxies” para 0053).
As per dependent claim 8, Chopra discloses the method of claim 1. Chopra teaches wherein receiving the data comprises: receiving, for creation of a second backup of additional data of a second source virtual machine, the additional data from the second source virtual machine via at least one proxy virtual machine of the quantity of proxy virtual machines, wherein the at least one proxy virtual machine is used for creating both the backup and the second backup (“a backup operation analyzer (128) also includes functionality to assess, at the time a backup operation is to be performed for a given VM, whether the preferred vProxy is available to perform the backup operation.” Para 0053).
As per claims 9-10 and 12-14, these claims are respectively rejected based on arguments provided above for similar rejected claims 1-2 and 4-6. See FIG. 4 of Chopra for processor and memory.
As per claims 15-16 and 18-20, these claims are respectively rejected based on arguments provided above for similar rejected claims 1-2 and 4-6. For computer program product on a non-transitory computer readable medium, see para 0021 of Chopra.
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.
Claims 3, 11, and 17 are rejected under 35 U.S.C. 103 as being unpatentable over Chopra.
As per dependent claim 3, Chopra discloses the method of claim 1. Chopra does not explicitly teach “wherein receiving the data comprises: receiving, using a first child job, a first portion of the data from a proxy virtual machine of the quantity of proxy virtual machines, wherein the first child job uses one or more ports of the proxy virtual machine; and receiving, using a second child job, a second portion of the data from the proxy virtual machine, wherein the second child job uses at least one other port of the proxy virtual machine or uses at least one port of the one or more ports after a release the at least one port by the first child job”.
However, Chopra teaches “VM A is assigned vProxies 1 and 2 based on the requirement of a vProxy that can perform at least 20 concurrent backup sessions.” Para 0121. That is, data is received by at least one session and by at least another session concurrently.
Hence, it would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to further modify the scope of the invention of Chopra with “wherein receiving the data comprises: receiving, using a first child job, a first portion of the data from a proxy virtual machine of the quantity of proxy virtual machines, wherein the first child job uses one or more ports of the proxy virtual machine; and receiving, using a second child job, a second portion of the data from the proxy virtual machine, wherein the second child job uses at least one other port of the proxy virtual machine or uses at least one port of the one or more ports after a release the at least one port by the first child job”. The motivation would be that by utilizing one or more vProxies, a backup time is reduced, para 0093 of Chopra.
As per dependent claims 11 and 17, these claims are rejected based on arguments provided above for similar rejected dependent claim 3.
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Chopra in view of APPA Grandhi et al. US 2023/0106327 (“Grandhi”).
As per dependent claim 7, Chopra discloses the method of claim 1. Chopra may not explicitly disclose, but in an analogous art in the same field of endeavor, Grandhi teaches further comprising: selecting, after identifying the trigger, the proxy virtual machine mode from among a set of data transport modes that comprises the proxy virtual machine mode (“ it may be advantageous to use a relatively faster backup data transport mode (e.g., hotadd)” para 0020) and a direct-to-host mode (“instead of a relatively slower backup data transport mode (e.g., network block device (NBD)).” Para 0020), wherein the proxy virtual machine mode is selected based at least in part on whether the backup is a full backup or an incremental backup of the source virtual machine (“the request may require performing a full backup of the data of the cluster, … As another example, the backup request may be to perform a backup wherein only additions and/or changes to the data since the last backup are to be backed up, but the change rate of the data is high, necessitating a quantity of data to be backed up that is above the data quantity threshold. … if the data quantity to be backed up is determined to be above a data quantity threshold, then the method proceeds to Step 316.” Para 0057. In Step 316, a vProxy is selected as a data mover to perform the backup operation requested in Step 300. Para 0061).
Given the teaching of Grandhi, it would have been obvious to a person of ordinary skill in the art before the effective filing data of claimed invention to further modify the scope of the invention of Chopra with “further comprising: selecting, after identifying the trigger, the proxy virtual machine mode from among a set of data transport modes that comprises the proxy virtual machine mode and a direct-to-host mode, wherein the proxy virtual machine mode is selected based at least in part on whether the backup is a full backup or an incremental backup of the source virtual machine”. The motivation would be that vProxy provides a faster data backup operation, para 0061 of Grandhi, and therefore, for full backup operation it is more efficient.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ZUBAIR AHMED whose telephone number is (571)272-1655. The examiner can normally be reached 7:30AM - 5:00PM 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 T. 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.
/ZUBAIR AHMED/Examiner, Art Unit 2132
/HOSAIN T ALAM/Supervisory Patent Examiner, Art Unit 2132