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 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 1-22 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1-11 of U.S. Patent No. 12,166,684. Although the claims at issue are not identical, they are not patentably distinct from each other because it is the system and method that corresponds to the product (CRM) claim of the parent case.
Instant Application – 18/940,842
Parent Patent – 12,166,684
1. A system for regulating a flow of communication between a first device and a second device, the system comprising:
1. A non-transitory, computer readable medium having code stored therein for regulating a flow of communication between a first device and a second device, wherein when the code is executed by a flow-regulating system, the flow-regulating system performs operations comprising:
a network interface; and
No corresponding limitation.
a processor, configured:
No corresponding limitation.
to receive from the first device, via the network interface, a plurality of first-direction packets belonging to the flow, and to pass the first-direction packets to the second device
receiving by the flow-regulating system, from the first device, a plurality of first-direction packets belonging to the flow, and passing the first-direction packets to the second device;
receiving by the flow-regulating system, from the second device, a plurality of second-direction packets belonging to the flow, and passing the second-direction packets to the first device;
to receive from the second device, via the network interface, a plurality of second-direction packets belonging to the flow, and to pass the second-direction packets to the first device,
to calculate, after receiving each second-direction packet of at least some of the second-direction packets, an estimated in-flight number, by assuming that the second- direction packet acknowledges receipt of a number of the first-direction packets that is based on an estimated average number of received first-direction packets acknowledged by the second-direction packets,
calculating, after receiving each second-direction packet of a least some of the second-direction packets, an estimated in-flight number, by assuming that the second direction packet acknowledges receipt of a number of the first-direction packets that is based on an estimated average number of received first-direction packets acknowledged by the second-direction packets,
the estimated in-flight number being an estimated volume of payload data, contained at least partly in the first-direction packets, that has been passed by the processor to the second device but has not yet been received by the second device, and
the estimated in-flight number being an estimated volume of payload data, contained at least partly in the first-direction packets, that has been passed by the flow-regulating system to the second device but has not yet been received by the second device; and
to regulate the flow, based on the estimated in-flight number.
based on the estimated in-flight number, regulating the flow.
Regarding Claim 1, Although the conflicting claims are not identical, they are not patentably distinct from each other because Applicant’s Claims 1 merely changes from a non-transitory, computer readable medium (i.e. manufacture / product) claim to a system claim, and adds well known relevant hardware to implement the system claim.
Examiner submits that these differences would have been obvious to one of ordinary skill in the art as there are legally four statutory categories of invention, and it would be obvious to redraft the claim to have patent protection in as many of these categories as possible.
Regarding Claims 2-11, the claims are the corresponding claims to Claim 2-11 of the parent case, with adjustment made to change from a non-transitory, computer readable medium (i.e. manufacture / product) claim to a system claim and is rejected accordingly.
Regarding Claim 12, Although the conflicting claims are not identical, they are not patentably distinct from each other because Applicant’s Claims 12 merely changes from a non-transitory, computer readable medium (i.e. manufacture / product) claim to a process (i.e. a method), and makes the necessary changes to the claim to make it a proper method claim.
Examiner submits that these differences would have been obvious to one of ordinary skill in the art as there are legally four statutory categories of invention, and it would be obvious to redraft the claim to have patent protection in as many of these categories as possible.
Regarding Claims 13-22, the claims are the corresponding claims to Claim 2-11 of the parent case, with adjustment made to change from a non-transitory, computer readable medium (i.e. manufacture / product) claim to a process claim (i.e. a method) and is rejected accordingly.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ROBERT M MORLAN whose telephone number is (571)270-5674. The examiner can normally be reached Monday - Friday, 10 AM - 4PM.
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/ROBERT M MORLAN/Primary Examiner, Art Unit 2409
ROBERT M. MORLAN
Primary Examiner
Art Unit 2409
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