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 .
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.
It is impractical for the examiner to review the references thoroughly with the number of references cited in the case. By initialing each of the cited references on the accompanying 1449 forms, the examiner is merely acknowledging the submission of the cited references and merely indicating that only a cursory review is made of the cited references.
An applicant's duty of disclosure of material and information is not satisfied by presenting a patent examiner with "a mountain of largely irrelevant [material] from which he is presumed to have been able, with his expertise and with adequate time, to have found the critical [material]. It ignores the real world conditions under which examiners work." Rohm & Haas Co. v. Crystal Chemical Co., 722 F.2d 1556, 1573 [220 USPQ 289] (Fed. Cir. 1983), cert, denied, 469 U.S. 851 (1984) (Emphasis in original). Patent applicant has a duty not just to (disclose pertinent prior art references but to make a disclosure in such way as not to "bury" it within other disclosures of less relevant prior art; See Golden Valley Microwave Foods Inc. v. Weaver Popcorn Co. Inc., 24 USPQ2d 1801 (N.D Ind. 1992); Molins PLC v. Textron Inc., 26 USPQ2d 1889, at 1899 (D.Del. 1992); Penn Yan Boats, Inc. v. Sea Lark Boats, Inc. et al„ 175 USPQ 260, at 272 (S.D. FI- 1972).
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claim 2 is rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter. The claim(s) does/do not fall within at least one of the four categories of patent eligible subject matter because claim 2 is not limited to non-transitory, tangible embodiments. In view of Applicant's disclosure, specification para. [0153], the medium is not limited to tangible, non-transitory embodiments, instead being defined as including both tangible, non-transitory embodiments (e.g., hard disk, ROM, EPROM) and intangible, transitory embodiments (e.g., any other computer-readable storage media that is capable of storing program instructions). As such, the claim is not limited to statutory subject matter and is therefore non-statutory. The Examiner recommends amending the claim to recite "At least one non-transitory computer readable medium".
Claim Objections
Claims 3-9 are objected to because of the following informalities: the claims recite “The least one non-transitory computer readable medium”. The claims should read “at least one”, and claim 2, from which the claims depend, does not recite “a non-transitory computer readable medium” creating a lack of antecedent basis. Appropriate correction is required.
Claim 25 is objected to because of the following informalities: in lines 2-3, claim 25 recites “directed to for the selected share”. Appropriate correction is required.
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. The Specification does not provide a written description for: reconcile 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. In para. [0186]-[0189], the Specification describes performing a failover from one file server to another. However, the specification is silent regarding: reconcile 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. 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 2-5, 10, 11, 13, and 18-21 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 3, 4, 11, 13, 20, 22, and 27 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 1, 3, 4, 11, 13, 20, 22, and 27 of U.S. Patent No. 12,164,383 B2 contain(s) every element of claim(s) 2-5, 10, 11, 13, and 18-21 of the instant application and as such anticipate(s) claim(s) 2-5, 10, 11, 13, and 18-21 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 claims 1, 11, and 20 of U.S. Patent No. 12,164,383 B2 (hereinafter ‘383) in view of Venkatesh et al..
Referring to claims 6, 14, and 22:
Claims 1, 11, and 20, of ‘383 disclose receiving a request to failover and performing the failover. However claims 1, 11, and 20, of ‘383 do 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 claims 1, 11, and 20, 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),
Claim 12 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 22 of U.S. Patent No. 12,164,383 B2 (hereinafter ‘383) in view of well-known practice of implementing a method with a system.
Referring to claim 12, claim 22 of ‘383 discloses all of the limitations except for a system comprising a source distributed file server, a destination distributed file server, and a file server manager for performing operations. The Examiner takes Official Notice that it is well-known in the art of computers to implement a method directed to computer functions using a computer system. It would have been obvious to one of ordinary skill at the time of filing of the invention to include the system into claim 22 of ‘383. A person of ordinary skill in the art would have been motivated to make the modification because using an apparatus, device, computer system, or software to perform a method puts into practice the method and gives it a real world application.
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)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 2, 3, 6, 7, 18, 19, 22, and 23 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Venkatesh et al., US 2018/0157561 A1 (cited on the IDS).
Referring to claim 2:
In para. 0229, Venkatesh et al., disclose at least one computer readable medium encoded with instructions which, when executed, cause a system to perform operations.
In para. 0061-0062 and 0164, Venkatesh et al. disclose updating a selected share of a destination distributed file server (remote site—para. 0164) 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 (replicate shares—para. 0061-0062).
In para. 0043, 0045, 0053, and 0056, Venkatesh et al. disclose redirecting (para. 0043 and 0053) 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 (Microsoft active directory domain—para. 0056) for the source distributed file server to reference the destination distributed file server. In para. 0047 and 0062, Venkatesh et al. disclose 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 (para. 0056--snapshots are taken continuously when VFS-level actions are taken and the access requests are only redirected when the source does not have the storage item, otherwise the access requests are processed—para. 0047).
Referring to claims 3 and 19:
In para. 0095, Venkatesh et al. disclose receiving a request to failover from the source distributed file server to the destination distributed file server.
In para. 0095 and configuring the destination distributed file server to service read and write requests for storage items of the selected share of the destination distributed file server, wherein the configuring is responsive to the request to failover from the source distributed file server to the destination distributed file server (components on other host machines take over the functions of failed components).
Referring to claims 6 and 22, in para. 0095, Venkatesh et al. disclose wherein the operations further comprise: detecting a failure at the source distributed file server; and automatically triggering a failover process based on said detecting.
Referring to claims 7 and 23, in para. 0098, Venkatesh et al. disclose updating one or more settings of the destination distributed file server, said updating comprising configuring the destination distributed file server to accept read requests, write requests, or a combination thereof (Further, FSVM-1 takes over the IP address (settings) associated with FSVM-2, so that storage access requests (read requests and write requests) sent to FSVM-2 are received and processed by FSVM-1. Optionally, metadata used by one FSVM, e.g., metadata associated with the file systems, may be transferred to another FSVM so that the specific configuration (settings) and/or state of the file systems may be re-created on the other FSVM).
Referring to claim 18:
In para. 0061-0062 and 0164, Venkatesh et al. disclose updating a selected share of a destination distributed file server (remote site—para. 0164) 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 (replicate shares—para. 0061-0062).
In para. 0043, 0045, 0053, and 0056, Venkatesh et al. disclose redirecting (para. 0043 and 0053) 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 (Microsoft active directory domain—para. 0056) for the source distributed file server to reference the destination distributed file server. In para. 0047 and 0062, Venkatesh et al. disclose 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 (para. 0056--snapshots are taken continuously when VFS-level actions are taken and the access requests are only redirected when the source does not have the storage item, otherwise the access requests are processed—para. 0047).
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.
Claim(s) 5 and 21 is/are rejected under 35 U.S.C. 103 as being unpatentable over Venkatesh et al., US 2018/0157561 A1 as applied to claims 2 and 18 above, and further in view of Leach et al., US 6,694,447 B1.
Referring to claims 5 and 21:
In para. 0095, Venkatesh et al. disclose receiving a request to failback from the destination distributed file server to the source distributed file server (when the FSVM is restored and the operational, the restored FSVM may take over the operations that were being performed by the other FSVM.
However, Venkatesh et al. do not explicitly disclose updating the selected share of the source distributed file server based on changes made to the storage items of the selected share of the destination distributed file server after the configuring the destination distributed file server to service read and write requests for the storage items of the selected share of the destination distributed file server. In Figure 7B and 7C and in col. 3, lines 19-34, Leach et al. disclose copying data from active storage volumes to secondary storage volumes on the secondary site while the application runs on the secondary site and updates the active storage volumes. Once the secondary storage volumes of the secondary site are updated, the data is resynchronized from the secondary storage volumes of the secondary site to the primary storage volumes of the primary site. Once this step is complete, the application is failed-back to the primary site by bringing up the application at the primary site. It would have been obvious to one of ordinary skill at the time of filing of the invention to include the failback procedure of Leach et al. into the failback of Venkatesh et al. A person of ordinary skill in the art would have been motivated to make the modification because the primary or source site cannot service data requests without the most up-to-date version of the data. The system of Leach et al. also minimizes downtime (see Leach et al.: col. 3, lines35-37).
Allowable Subject Matter
Claims 9, 15, 17, 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 4 and 20 would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims and if the non-statutory double patenting rejection was overcome.
Claims 10-14 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.
With respect to claims 4 and 20, the prior art does not teach or reasonably suggest wherein the destination distributed file server is configured to service read requests for the storage items of the selected share of the destination distributed file server prior to receiving the request to failover from the source distributed file server to the destination distributed file server.
With respect to claims 8 and 24, in para. 0098, Venkatesh et al. disclose metadata used by FSVM-1, e.g., metadata associated with the file systems, may be transferred to FSVM-3 so that the specific configuration and/or state of the file systems may be re-created on FSVM-3. However, neither Venkatesh et al. nor the prior teach or reasonably suggest wherein the operations further comprise: maintaining metadata associated with the source distributed file server; maintaining metadata associated with the destination distributed file server; reconcile 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.
With respect to claims 9 and 25, the prior art does not teach or reasonably suggest, in combination with the remaining limitations, wherein the operations further comprise receiving, at the destination distributed file server, the redirected client request for the selected share of the source distributed file server, at an application programming interface (API) gateway of the destination distributed file server.
Referring to claim 10, 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, the file server manager comprising one or more processors and memory story instructions which, when executed by the one or more processors, cause the file server manager to perform the operations of claim 10. 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.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Binduf et al. disclose aspects of active directory.
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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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Bryce Bonzo can be reached at (571) 272-3655. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MICHAEL MASKULINSKI/Primary Examiner, Art Unit 2113