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, 3, 5, 6, 8, 10, 11, 13, 15, 16, 18, 20, 21, 23, 25, 26, 28, and 30 are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent Pub. No. 2019/0220375 to Furuya (hereinafter Furuya) in view of U.S. Patent Pub. No. 2021/0133059 to Bono et al. (hereinafter Bono).
Furuya discloses:
1. A non-transitory computer readable medium including program instructions for
execution on a processor of a multi-site disaster recovery (DR) environment, the
program instructions configured to:
monitor input/output (I/O) accesses and storage ownership takeover activity from a fault tolerant application executing on a first cluster configured for failover to a second cluster of the environment (paras. [0034], [0120], [0140]-[0142] – number of I/O accesses monitored), wherein the I/O accesses are directed to shared storage replicated from the first cluster to the second cluster (Figs. 7, 8, 9 storing apparatuses mirrored and accessible by both active and standby servers), and wherein the storage ownership takeover activity is directed to establishing and pre-empting ownership of the shared storage (paras. [0121]-[0123], [0144]);
detect patterns of the I/O accesses and storage ownership activity from an application separate from that of fault tolerant application indicating degraded I/O performance to determine whether the fault tolerant application and the shared storage are co-located at the first cluster (paras. [0039], [0087], [0121]-[0123] – performance greatly changes depending on which storage is accessed); and
in response to determining that the fault tolerant application and shared storage are no longer co-located at the first cluster, trigger a failover of the shared storage to ensure co-location with the fault tolerant application (paras. [0037]-[0039], [0123] –storage access destination changed to same site as server).
Furuya does not disclose expressly the fault tolerant application executing on a container; and wherein the I/O accesses occur via a cluster storage interface driver executing in another container of the first cluster.
Bono teaches a fault tolerant application executing on a container (paras. [0061]-[0062] and Fig. 2); and wherein the I/O accesses occur via a cluster storage interface driver executing in another container of the first cluster (paras. [0066]-[0068]).
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 Furuya by executing application in containers, as taught by Bono. A person of ordinary skill in the art would have been motivated to do so in order to optimize use of components and enhance performance, as discussed by Bono (paras. [0051], [0052]).
Modified Furuya discloses:
3. The non-transitory computer readable medium of claim 1, wherein the program instructions configured to detect patterns of the I/O accesses includes program instructions configured to determine whether the patterns exceed a threshold of pre- determined patterns of I/O activity (Furuya - paras. [0034], [0120], [0140]-[0142] – accesses of one server higher than the other).
5. The non-transitory computer readable medium of claim 1, wherein the fault tolerant container-based application is part of a container managed cluster having failover logic for the fault tolerant container-based application (Bono - paras. [0061]-[0068]).
6. The non-transitory computer readable medium of claim 1, wherein during degraded I/O performance, a failover of the fault tolerant application to the second site proxies the I/O accesses to the shared storage at the first site (Furuya - paras. [0039], [0045]).
8. The non-transitory computer readable medium of claim 1, wherein failover of the fault tolerant application is uncoordinated with failover of the shared storage (Furuya - para. [0039], [0087]).
10. The non-transitory computer readable medium of claim 1, wherein an administratively initiated maintenance triggers failover of one of the fault tolerant application or the shared storage such that they are no-longer co-located (Furuya - paras. [0086]- [0087]).
Claims 11, 13, 15, 16, 18, and 20 are a method comprising steps identical to the steps performed by the non-transitory computer readable medium of claims 1, 3, 5, 6, 8, and 10, and are rejected under the same rationale.
Claims 21, 23, 25, 26, 28, and 30 are an apparatus comprising a processor to perform steps identical to the steps performed by the non-transitory computer readable medium of claims 1, 3, 5, 6, 8, and 10, and are rejected under the same rationale.
Claims 2, 4, 7, 9, 12, 14, 17, 19, 22, 24, 27, and 29 are rejected under 35 U.S.C. 103 as being unpatentable over Furuya in view of Bono and further in view of U.S. Patent Pub. No. 2017/0359243 to Deuri et al. (hereinafter Deuri).
Furuya does not disclose expressly:
2. The non-transitory computer readable medium of claim 1, wherein the program instructions configured to monitor I/O accesses and storage ownership takeover activity includes program instructions configured to monitor removal and addition of storage connection pattern of activity to ensure that the failover of the fault tolerant container-based application and the shared storage are co-located at the first site.
Deuri teaches program instructions configured to monitor removal and addition of storage connection pattern of activity to ensure that the failover of the fault tolerant container-based application and the shared storage are co-located at the first site (paras. [0014], [0051]).
Before the effective filing date of the invention, it would have been obvious to a person of ordinary skill in the art to modify Furuya by monitoring removal and addition of storage connection patterns of activity, as taught by Deuri. A person of ordinary skill in the art would have been motivated to do so in order to discover activity status of a node without the use of input/output operations, which facilitates efficient compute node cluster management, as discussed by Deuri (paras. [0002], [0013]).
Modified Kuruya discloses:
4. The non-transitory computer readable medium of claim 1, wherein the program instructions configured to detect patterns of the I/O accesses is based on a sliding window of the monitored I/O accesses (Deuri – para. [0061]).
7. The non-transitory computer readable medium of claim 1, wherein the detected patterns of I/O accesses and storage ownership takeover activity are configurable per fault tolerant application (Deuri – paras. [0061],[0074]).
9. The non-transitory computer readable medium of claim 1, wherein the program instructions configured to detect patterns of I/O access and storage ownership takeover activity includes program instructions configured to gather statistics of an amount of data transferred during a sliding window time interval (Furuya – paras. [0034], [0120], [0140]-[0142] and Deuri – para. [0061]).
Claims 12, 14, 17, and 19 are a method comprising steps identical to the steps performed by the non-transitory computer readable medium of claims 2, 4, 7, and 9, and are rejected under the same rationale.
Claims 22, 24, 27, and 29 are an apparatus comprising a processor to perform steps identical to the steps performed by the non-transitory computer readable medium of claims 2, 4, 7, and 9, 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 1-30 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-30 of U.S. Patent No. 12,169,445 (hereinafter ‘445). Although the claims at issue are not identical, they are not patentably distinct from each other because claims 1-30 of ‘445 contain every element of claims 1-30 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.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Philip Guyton whose telephone number is (571)272-3807. The examiner can normally be reached M-F 8:00-4:30.
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/PHILIP GUYTON/Primary Examiner, Art Unit 2113