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.
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 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over the claims of U.S. Patent No. 12,210,423. Although the claims at issue are not identical, they are not patentably distinct from each other because the differences are not material to patentability. For example, as shown in the chart below, instant claim 1 is a subset of patented claim 1. It is obvious to remove limitations from patented claims.
Instant claim 1
Patented claim 1, from 12,210,423
1. A method, comprising: performing a procedure to transfer point-in-time data for a data object to a computing system, wherein the point-in-time data comprises a plurality of files, and wherein performing the procedure comprises:
1. A method, comprising: performing a first procedure for capturing first point-in-time data for a data object at a computing system, wherein the first point-in-time data comprises a plurality of files, and wherein performing the first procedure comprises:
initiating a first type of operation to back up the first point-in-time data from the computing system to a data management system, the first type of operation being native to the data object and enabling sections of files to be backed up in parallel on a per-section basis; and performing, after the first procedure, a second procedure to restore the first point-in-time data to the computing system, wherein performing the second procedure comprises:
executing an instance of a first type of operation to back up, from among the plurality of files, one or more first files to the computing system, an execution of the first type of operation being supported by the data object, and the first type of operation enabling files to be backed up to the computing system in parallel on a per-section basis, and
executing, based at least in part on recreating the first point-in-time data at the data management system, the first type of operation to back up, from among the plurality of files, sections of one or more first files in parallel on the per-section basis from the data management system to the computing system; and
executing, based at least in part on executing the instance of the first type of operation, an instance of a second type of operation to transfer, from among the plurality of files, one or more second files to the computing system,
initiating, after backing up the sections of the one or more first files from the data management system to the computing system, a second type of operation to restore, from among the plurality of files, one or more second files to the computing system,
an execution of the second type of operation being supported by the data object, and the second type of operation enabling files to be transferred in parallel on a per-file basis to the computing system.
the second type of operation being native to the data object and enabling files to be restored in parallel on a per-file basis from the data management system to the computing system.
Note
It is noted that any citations to specific pages, columns, lines, or figures in the prior art references and any interpretation of the reference should not be considered to be limiting in any way. A reference is relevant for all it contains and may be relied upon for all that it would have reasonably suggested to one having ordinary skill in the art. See MPEP § 2123.
Conclusion
Any inquiry concerning this Office action should be directed to the Examiner by phone at (571) 272-4214.
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/Kevin Verbrugge/
Kevin Verbrugge
Primary Examiner
Art Unit 2132