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 .
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1-5, 8-15, and 18-20 are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent Pub. No. 2009/0313311 to Hoffman et al. (hereinafter Hoffman) in view of U.S. Patent No. 10,990,284 to Savir et al. (hereinafter Savir).
Hoffman discloses:
1. A system comprising:
a plurality of computing devices,
wherein each computing device among the plurality of computing devices comprises one or more hardware processors, and
wherein a first computing device among the plurality of computing devices hosts a first media agent (paras. [1486]-[1487] and Figs. 66, 67);
wherein the plurality of computing devices are configured with computer-executable instructions that, when executed, cause the system to:
determine that the first computing device, in performing a current job that comprises secondary copy operations (para. [0538] and Fig. 34 – replication from source database on source node to target database on target node), has failed (paras. [0947]-[0949]);
wherein the failure corresponds to one or more of: jobs running longer than expected, pending jobs, failed jobs, suspended jobs, killed jobs, and jobs successfully completed (paras. [0947]-[0949]);
based on determining that the first computing device has failed, identify, among the plurality of computing devices, a second computing device that hosts a second media agent (paras. [0700]-[0704]); and
further based on determining that the first computing device has failed, route at least one future job that comprises secondary copy operations to the second computing device instead of to the first computing device (paras. [0005], [0828], [00992]-[0993]).
Hoffman does not disclose expressly:
wherein the failure is deviating from a trend,
wherein the trend is based on values measured for jobs that were previously performed by the first computing device over a period of time.
Savir teaches determining that a first computing device is deviating from a trend, wherein the trend is based on values measured for jobs that were previously performed by the first computing device over a period of time (col. 5, lns. 6-15 and col. 6, lns. 6-27).
Before the effective filing date of the claimed invention it would have been obvious to a person of ordinary skill in the art to modify Hoffman by determining computing device deviation from a trend, as taught by Savir. A person of ordinary skill in the art would have been motivated to do so in order to exceed data protection service levels and improve customer experience, without requiring manual configuration, as discussed by Savir (col. 3, lns. 56-60 and col. 2, ln. 46-col. 3, ln. 9).
Modified Hoffman discloses:
2. The system of claim 1, wherein determining that the first computing device is deviating from a trend is further based on determining that a measure of usage of computing resources of the first computing device exceeds a threshold value (Savir - col. 6, lns. 21-27).
3. The system of claim 1, wherein the trend is based at least in part on a time-series decomposition of data about the jobs data that were previously performed by the first computing device over the period of time (Savir – col. 6, lns. 21-38).
4. The system of claim 1, wherein the first media agent previously performed the jobs at the first computing device over the period of time, and wherein the second media agent is configured to perform the at least one future job routed the second computing device (Hoffman - paras. [0005], [0828], [00992]-[0993]).
5. The system of claim 1, wherein the computer-executable instructions, when executed, further cause the system to: further based on determining that the first computing device is deviating from the trend, place the first computing device into a disabled state, and while the first computing device is in the disabled state, route the at least one future job to the second computing device instead of to the first computing device (Hoffman - paras. [0947]-[0949], [1509]-[1514], [1535]).
8. The system of claim 1, wherein a third computing device among the plurality of computing devices hosts a storage manager, and wherein the computer-executable instructions, when executed, cause the storage manager to: place the first computing device into a disabled state based on determining that the first computing device is deviating from the trend, and while the first computing device is in the disabled state, cause the at least one future job to be routed to the second computing device instead of to the first computing device (Hoffman - paras. [0947]-[0949], [1509]-[1514], [1535]).
9. The system of claim 1, wherein the computer-executable instructions, when executed, further cause the system to: determine that the second computing device is not deviating from a second trend, wherein the second trend is based on values measured for second jobs that were previously performed by the second computing device over a period of time, and wherein the second trend corresponds to one or more of: second jobs running longer than expected, pending second jobs, failed second jobs, suspended second jobs, killed second jobs, and second jobs successfully completed (Hoffman - paras. [1509]-[1514], [1535]); and
wherein the at least one future job is routed to the second computing device instead of to the first computing device based on the second computing device not deviating from the second trend (Hoffman - paras. [0005], [0828], [00992]-[0993]).
10. The system of claim 1, wherein the first computing device is determined to be performing anomalously based on deviating from the trend, and wherein a policy configured in the system indicates that, should the first computing device perform anomalously, the second computing device hosting the second media agent may be used as an alternate to the first computing device (Hoffman - paras. [0828], [00992]-[0993]).
Claims 11-15 and 18-20 are a computer-implemented method identical to the steps performed by the system of claims 1-5 and 8-10, and are rejected under the same rationale.
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 1 and 11 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 5 and 15, respectively, of U.S. Patent No. 12,181,988 (hereinafter ‘988). Although the claims at issue are not identical, they are not patentably distinct from each other because the claims of ‘988 contain every element of the claims of the instant application and thus anticipate the claims of the instant application. Claims of the instant application therefore are not patently distinct from the earlier patent claims and as such are unpatentable over obvious-type double patenting. A later application claim is not patentably distinct from an earlier claim if the later claim is anticipated by the earlier claim.
Allowable Subject Matter
Claims 6, 7, 16, and 17 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Conclusion
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/PHILIP GUYTON/Primary Examiner, Art Unit 2113