FINAL REJECTION
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 § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 21, 29 and 32 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Ravindran et al. (9880750).
Regarding claim 21:
Ravindran teaches:
A system comprising:
a first storage device [fig 5B, 5C, 8; ESMs, each comprised of multiple flash drives];
a switch configured to route at least one storage command to the first storage device based on an address associated with the at least one storage command [col. 5 lines 6-15, col. 6 lines 45-57 – storage commands are routed to the storage devices based on MAC addresses]; and
a controller configured to cause the switch to route the at least one storage command to a device based on the first storage device satisfying a condition, the device being different from the first storage device [col. 4 lines 62-65, col. 6 lines 45-57, col. 13 lines 43-64 – writes are accepted and the command is passed to a control CPU, which replies using the SPU. The commands are routed via the Ethernet switch, all under control of the control CPU and the accelerator engines of the SPU. The writes are accepted and routed based on available capacity, throughput and latency of the storage devices, which meets the broadest reasonable interpretation of routing commands based on a condition being satisfied. The characteristics of the flash drives in the ESMs are taken into consideration and storage commands are routed to a chosen drive based on those conditions. The commands can be routed to any of the storage drives based on a first drive not meeting the requirements. Thus, it is clear that a storage command can be routed to a drive other than first storage drive based on a condition of the first storage drive in keeping with the broadest reasonable interpretation of the claim].
Regarding claim 29:
Ravindran teaches:
The system of claim 21, wherein the system further comprises a second storage device in communication with the first storage device and the switch, wherein the switch is configured to route the at least one storage command to the second storage device according to the address associated with the at least one storage command [col. 5 lines 6-15 – the command are routed to the plurality of storage devices, which necessarily includes the second storage device, according to an address].
Regarding claim 32:
Ravindran teaches:
The system of claim 21, wherein:
the switch comprises a first port connected to a second port of the controller [col. 8 lines 1-6], and
the switch is configured to receive the at least one storage command from the controller through the first port [col. 8 lines 1-6].
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 21, 22, 25-27, 29-31, 33, 34, and 38-40 rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 3, 4, 6-8, 10, 12, 14, 15, and 19 of U.S. Patent No. 10255134. Although the claims at issue are not identical, they are not patentably distinct from each other because the ‘134 claims contain all teachings of the instant claims and therefore anticipate the instant claims.
Claim 21 is exemplary:
Claim 21:
Relevant recitations of ‘134 claim 1
Explanation (as needed)
A system comprising:
“the system comprising”
a first storage device;
“a plurality of storage devices”
A plurality of storage devices indicates multiple devices and encompasses a first device
a switch configured to route at least one storage command to the first storage device based on an address associated with the at least one storage command; and
“a data switch, configured during normal operation to route storage commands…to respective ones of the plurality of storage devices, according to a respective address in each storage command;”
The commands are routed to the appropriate devices based on addresses in each command, inclusive of a first device
a controller configured to cause the switch to route the at least one storage command to a device based on the first storage device satisfying a condition, the device being different from the first storage device.
“a controller” “to reconfigure the data switch to route storage commands addressed to the failed or absent storage device to the controller”
Being failed or absent represents a condition that prompts the routing to the controller. The controller is a device.
Claims 21, 22, 24, 29-31, 33-35, and 38-41 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 3-5, 8, 10, 12, 14, and 16 of U.S. Patent No. 11042442. Although the claims at issue are not identical, they are not patentably distinct from each other because the ‘442 claims contain all teachings of the instant claims and therefore anticipate the instant claims.
Claim 21 is exemplary:
Claim 21:
Relevant recitations of ‘442 claim 1
Explanation (as needed)
A system comprising:
“A system comprising:”
a first storage device;
“a plurality of storage devices, comprising first storage devices”
a switch configured to route at least one storage command to the first storage device based on an address associated with the at least one storage command; and
“a switch configured….to route storage commands….to respective storage devices…based at least in part on addresses associated with the storage commands”
The commands are routed to the appropriate devices based on addresses in each command, inclusive of a first device
a controller configured to cause the switch to route the at least one storage command to a device based on the first storage device satisfying a condition, the device being different from the first storage device.
“a controller” “the controller being configured to, in response to satisfying a first condition: reconfiguring the switch to route storage commands of a first type to the controller”
Conditional routing of storage commands to the controller. The controller is a device.
Claims 21, 22, 24-27, 29-31, 33, 34, and 37-40 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 3, 4, 7-10, 12, 13, 14, and 16 of U.S. Patent No. 11429487. Although the claims at issue are not identical, they are not patentably distinct from each other because the ‘487 claims contain all teachings of the instant claims and thus anticipate the instant claims.
Claim 21 is exemplary:
Claim 21:
Relevant recitations of ‘487 claim 1
Explanation (as needed)
A system comprising:
“A system comprising:”
a first storage device;
“a first storage device;”
a switch configured to route at least one storage command to the first storage device based on an address associated with the at least one storage command; and
“a switch to route storage commands based at least in part on addresses associated with the storage commands”
The commands are routed to the appropriate devices based on addresses in each command, inclusive of the first storage device
a controller configured to cause the switch to route the at least one storage command to a device based on the first storage device satisfying a condition, the device being different from the first storage device.
“a controller to reconfigure the switch to route the storage commands to the controller in response to the first storage device satisfying a condition”
Nearly identical. The controller is a device other than the first storage device.
Claims 21-39 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-13 and 15-20 of U.S. Patent No. 12181970. Although the claims at issue are not identical, they are not patentably distinct from each other because the ‘970 claims contain all teachings of the instant claims and thus anticipate the instant claims.
Claim 21 is exemplary:
Claim 21:
Relevant recitations of ‘487 claim 1
Explanation (as needed)
A system comprising:
“A system comprising:”
a first storage device;
“storage devices”
Multiple storage devices, inclusive of a first storage device
a switch configured to route at least one storage command to the first storage device based on an address associated with the at least one storage command; and
“a switch….configured to route at least one storage command to the storage devices based on at least one address associated with the at least one storage command”
The command is routed to the appropriate devices based on an addresses in the command, inclusive of the first storage device
a controller configured to cause the switch to route the at least one storage command to a device based on the first storage device satisfying a condition, the device being different from the first storage device.
“a controller…configured to cause the switch to route the at least on storage command to a device in response to a first storage device from among the storage devices satisfying a condition, the device being different from the storage devices”
Nearly identical
Response to Arguments
The objection to claim 36 has been withdrawn in view of the amendment to the claim.
The double patenting rejections were not addressed except to state that applicant might file or future terminal disclaimer or argue that the claims would be patentably distinct. The rejections are maintained.
Regarding the claim rejections under 35 U.S.C. 102(a)(2), applicant argues, on page 11 , that “For example, the cited sections of Ravindran appear to be completely silent regarding the CPU 530 (the alleged "controller" of claim 1) to cause the SPU 520 (the alleged "switch" of claim 1) to route the write request from the application server 10 to a device that is different from the ESMs 555 (the alleged "storage devices" of claim 1), in response to the ESM 555 (the alleged "first storage device") accepting or rejecting the request based on storage capacity of the ESM 555 (emphasis added).
As such, the cited sections of Ravindran do not appear to disclose or even suggest "a controller configured to cause the switch to route the at least one storage command to a device based on the first storage device satisfying a condition, the device being different from the first storage device," as amended independent claim 21 recites.” (emphasis by applicant)
The examiner respectfully disagrees. The broadest reasonable interpretation of the amended limitation of the claim merely requires that the storage command be routed to a device other than a first storage device. The cited reference discloses routing of storage commands to ESMs that include a multitude of storage devices. The designation of one of the storage devices within the ESM is merely arbitrary. When the storage command is routed to an ESM, the conditions, including capacity, throughput and latency, associated with each of the flash drives that comprise the ESM are considered before determining the final drive(s) to which the command is routed to store the write. Thus, any individual drive can be considered the ”first storage device” of the claim, and the device different from the first storage device reads on any drive or drives ultimately selected that are not the “first storage device.”
Applicant argues that because Ravindran is silent regarding routing the request to a device that “is different from the ESMs 555 (the alleged “storage devices” of claim 1), in response to the ESM 555 (the alleged “first storage device”) accepting or rejecting the request.” The examiner respectfully disagrees. This interprets the claim far too narrowly. The claim does not recite “storage devices.” The claim only recites a “first storage device.” Further, the rejection does not identify only a single ESM. As noted above, the reference teaches multiple ESMs, each comprise of multiple flash drives. The capacities, throughput and latency of the ESMs and the drives within them are all considered when determining the ultimate routing of the storage command. Thus, the reference disclosing the selection of one ESM over another, or one or more drives over another of the drives within an ESM, based on conditions of an ESM or a drive, meets the broadest reasonable interpretation of routing a storage command to “a device,” with “the device being different from the first storage device.”
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 MARC M DUNCAN whose telephone number is (571)272-3646. The examiner can normally be reached M-F: 730am-9am, 10am-4:30pm.
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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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/MARC DUNCAN/Primary Examiner, Art Unit 2113
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