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 .
Information Disclosure Statement
The references that were not considered by the Examiner have pages that are cut off at the top and there is missing information.
Claim Rejections - 35 USC § 101
In view of the recent amendments, the rejection of claim 2, under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter, has been withdrawn.
Claim Objections
In view of the recent amendments, the objection to claims 3-9 has been withdrawn.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 8, 16, and 24 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. Applicant has not pointed out where the new (or amended) claim is supported, nor does there appear to be a written description of the claim limitation synchronize one or more differences between the source distributed file server and the destination distributed file server at failover from the source distributed file server to the destination distributed file server based at least in part on the metadata associated with the source distributed file server and the metadata associated with the destination distributed file server in the application as filed.
The Specification does not provide a written description for: synchronize one or more differences between the source distributed file server and the destination distributed file server at failover from the source distributed file server to the destination distributed file server based at least in part on the metadata associated with the source distributed file server and the metadata associated with the destination distributed file server. In para. [0050] and [0055], the Specification describes storing metadata at virtualized file servers and synchronizing the metadata. However, there is no mention of a failover or synchronizing one or more differences between the source distributed file server and the destination file server. In para. [0186]-[0189] and [0221]-[0227], the Specification describes performing a failover from one file server to another. However, the specification is silent regarding: synchronize one or more differences between the source distributed file server and the destination distributed file server at failover from the source distributed file server to the destination distributed file server based at least in part on the metadata associated with the source distributed file server and the metadata associated with the destination distributed file server. There is no mention of metadata being used in the failover process. The limitation is not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. Additionally, the limitation is not described in provisional applications 63/260,438 and 63/264,204.
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 2, 3, 5, 10, 11, 13, 18, 19, and 21 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 11 and 13 of U.S. Patent No. 12,164,383 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because claims 11 and 13 of U.S. Patent No. 12,164,383 B2 contain(s) every element of claim(s) 2, 3, 5, 10, 11, 13, 18, 19, and 21 of the instant application and as such anticipate(s) claim(s) 2, 3, 5, 10, 11, 13, 18, 19, and 21 of the instant application.
“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 6, 14, and 22 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 11 of U.S. Patent No. 12,164,383 B2 (hereinafter ‘383) in view of Venkatesh et al..
Referring to claims 6, 14, and 22:
Claim 11 of ‘383 disclose receiving a request to failover and performing the failover. However claim 11 of ‘383 does not explicitly disclose detecting a failure at the source distributed file server; and automatically triggering a failover process based on said detecting. In para. 0095, Venkatesh et al. disclose components on other host machines may take over the functions of failed components. Further, when an FSVM fails, an FSVM on another host machine may take over the network address and CVM or volume group that were being used by the failed FSVM. It would have been obvious to one of ordinary skill at the time of filing of the invention to include the failover of Venkatesh et al. into claim 11 of ‘383. A person of ordinary skill in the art would have been motivated to make the modification to provide high availability, e.g., so that the file server continues to operate after failure of components such as a CVM, FSVM, or both, as may occur if a host machine fails (see Venkatesh et al.: para. 0095).
Allowable Subject Matter
Claims 4, 7, 9, 12, 15, 17, 20, 23, and 25 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.
Claims 2, 3, 5, 6, 10, 11, 13, 14, 18, 19, 21, and 22 would be allowable if the non-statutory double patenting rejection was overcome.
The following is a statement of reasons for the indication of allowable subject matter.
Referring to claims 2, 10, and 18, Venkatesh et al. disclose a source distributed file server (FSVM); a destination distributed file server (FSVM); and performing the functions of the file server manager. However, Venkatesh et al. do not disclose a file server manager (VFS) communicatively coupled to the source distributed file server and the destination distributed file server and performing the functions/operations of claims 2, 10, and 18. The prior art does not teach or reasonably suggest a file server manager to perform operations comprising: updating a selected share of a destination distributed file server based on a snapshot of a selected share of a source distributed file server, the selected share of the destination distributed file server corresponding to the selected share of the source distributed file server; and redirecting a client request for the selected share of the source distributed file server to the destination distributed file server at least in part by updating active directory information or the source distributed file server to reference the destination distributed file server, wherein the selected share of the destination distributed file server is updated while the source distributed file server is available to serve another client request for storage items of the selected share of the source distributed file server.
Response to Arguments
Applicant's arguments filed May 14, 2026 have been fully considered but they are not persuasive.
On page 12 of the REMARKS, the Applicant argues, “Applicant has amended claims 8, 16, and 24 to cure the alleged deficiency identified by the Office. Accordingly, Applicant respectfully requests the section 112 rejection be withdrawn.” The Examiner respectfully disagrees. Applicant has not pointed out where the new (or amended) claim is supported, nor does there appear to be a written description of the claim limitation synchronize one or more differences between the source distributed file server and the destination distributed file server at failover from the source distributed file server to the destination distributed file server based at least in part on the metadata associated with the source distributed file server and the metadata associated with the destination distributed file server in the application as filed.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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 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
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