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 .
DETAILED ACTION
Claims 1-8 are pending.
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 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.
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 1/2/2025 is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Claim Objections
Claim 1 recites, “wherein between every two adjacent idle bandwidth measurement events, determining a waiting period for the next idle bandwidth measurement between every two adjacent idle bandwidth measurement events according to changes in the idle bandwidth.” The claim repeats itself unnecessarily. Appropriate correction is required.
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.
Claims 6 and 7 are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter.
Claim 6 are directed a system that when interpreted in light of the specification may read on software alone which is non- statutory. In order to comply, the claimed systems must explicitly comprise hardware (e.g. a processor, memory) so they may not be reasonably be interpreted as software alone.
Claim 7 is directed to, “A computer readable storage medium." A computer readable storage medium when interpreted in light of the specification and taking into account the meaning of the words in their ordinary usage as they would be understood by one of ordinary skill in the art includes communication media that transmits a program as signals. Therefore, the claim as a whole covers a transitory signal, which does not fall within the definition of a process, a machine, manufacture, or composition of matter (In re Nuijten).
Amendments may be made to narrow the claim to cover only statutory embodiments to avoid a rejection under 35 U.S.C. § 1 01 by adding the limitation "non-transitory" to the claim, e.g. "A non-transitory computer readable storage medium". Cf Animals - Patentability, 1077 Off. Gaz. Pat. Office 24 (April 21, 1987) (suggesting that applicants add the limitation "non- human" to a claim covering a multicellular organism to avoid a rejection under 35 U.S.C. § 101). Such an amendment would typically not raise the issue of new matter, even when the specification is silent because the broadest reasonable interpretation relies on the ordinary and customary meaning that includes non-transitory embodiments and transitory signals per se. Subject Matter Eligibility of Computer Readable Media, 1351 OG 212 (February 23,2010).
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-8 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor, or for pre-AIA the applicant regards as the invention.
Where applicant acts as his or her own lexicographer to specifically define a term of a claim contrary to its ordinary meaning, the written description must clearly redefine the claim term and set forth the uncommon definition so as to put one reasonably skilled in the art on notice that the applicant intended to so redefine that claim term. Process Control Corp. v. HydReclaim Corp., 190 F.3d 1350, 1357, 52 USPQ2d 1029, 1033 (Fed. Cir. 1999).
The term “exponential function” in claims 1, 4, and 6 is used by the claims and specification to describe a function that is specifically limited in claim 4-5 to be, “wherein the exponential function is t^a represents time, and a is a constant…wherein a value of a is 2.”
That is, the function is t^2, or in other words t squared. This is a power function, not an exponential function since the base is the variable and the exponent is fixed. In an exponential function, the exponent is the variable and the base is constant, e.g. 2^t.
Therefore, the term is indefinite because the specification does not clearly redefine the term “exponential function” to cover the claim language/examples in the specification. The examiner does not recommend the applicant do this, but recommends the applicant avoid using the term “exponential function” inaccurately in the claims and the specification as this likely was a simple translation issue. For example, the specification does use the term, “exponential growth function” so “growth function” alone is likely appropriate in the claims and specification.
Claim 1 recites the following limitations that lack clear and/or sufficient antecedent basis:
“multiple link paths…a plurality of link paths…the path’s available bandwidth” – It is unclear if these are related as the applicant has mixed different terms for likely the same elements
“a collaborative adjustment…the collaborative adjustment period”
“a transmission rate is gradually increased…adjusting a data transmission rate”
“each collaborative adjustment event” - a plurality of collaborative adjustment events or equivalent is not recited
“each data stream” – a plurality of data streams or equivalent is not recited
Claim 1 uses the term “minimal probe overhead.” “minimal” is a relative term which renders the claim indefinite. The term is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. In other words, what is considered “minimal” in one context may not be considered “minimal” in another context and thus the term cannot be given a consistent meaning as currently recited in the claim and interpreted in light of the specification.
Claim 6 recites the following limitations that lack clear and/or sufficient antecedent basis:
“a transmission rate is gradually increased…adjusting a data transmission rate”
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Hester et al (US Pub. No. 2007/0016688), hereafter, “Hester,” in view of Shiang et al (US Pub. No. 2021/0399971), hereafter, “Shiang,” and Zhang et al (US Pub. No. 2013/0044598), hereafter, “Zhang.”
As to claim 6, Hester discloses a non-real-time data transmission device (Abstract), comprising:
a collaborative adjustment module, used for periodically carrying out collaborative adjustment of idle bandwidth occupation ([0041], particularly, “The background data transfer module 135 can adjust its network utilization 185 to only use the leftover bandwidth, i.e., the current network utilization subtracted from its estimated of the maximum network capacity across the shared gateway 120. Thus, client 140 gives priority to other local network 125 computing machine's usage of the shared gateway 120.”);
during a collaborative adjustment period of the idle bandwidth occupation, gradually increasing a transmission rate ([0056], particularly, “Thereafter, step for 230 includes an act of comparing 220 the total bandwidth capacity and actual bandwidth consumption for data transfers over the shared gateway… The throttling may be either an increase or decrease in bandwidth consumption over the shared gateway 120 based on the results of the comparison.”);
and an idle bandwidth measurement module, used for intermittently measuring an idle bandwidth between every two adjacent collaborative adjustment events of the idle bandwidth occupation and adjusting a data transmission rate according to measurement results ([0041] and [0056]).
However, Hester does not explicitly disclose between every two adjacent idle bandwidth measurement events, dynamically determining a waiting period of a next idle bandwidth measurement according to change of the idle bandwidth.
But, Shiang discloses between every two adjacent idle bandwidth measurement events, dynamically determining a waiting period of a next idle bandwidth measurement according to change of the idle bandwidth (Abstract, particularly, “In one embodiment, a policy can be used at a transmitter to begin a video transmission with a high frequency target for sending probing sequences (with, e.g., smaller length probing sequences) and transition to a lower frequency target (with, e.g., longer length probing sequences) when network bandwidth deteriorates and then return to the higher frequency target when the network bandwidth improves.” And Fig. 3A).
Therefore it would have been obvious to one of ordinary skill in the art prior to the effective filing date of the application to combine the teachings of Hester and Shiang in order to effectively use network bandwidth so as to not stress the system’s resources.
However, Hester and Shiang do not explicitly disclose gradually increasing a transmission rate by an exponential function.
But, Zhang discloses during a collaborative adjustment period of an idle bandwidth occupation, gradually increasing a transmission rate by an exponential function ([0024]-[0025]).
Therefore it would have been obvious to one of ordinary skill in the art prior to the effective filing date of the application to combine the teachings of Hester and Shiang with Zhang in order increase the use of idle resources and therefore improve the system’s performance overall.
Allowable Subject Matter
Claim 1 would likely be allowable if rewritten or amended to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action provided an updated search of the amended language does not provide applicable prior art.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to THOMAS J DAILEY whose telephone number is (571)270-1246. The examiner can normally be reached 9:30am-6:00pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Umar Cheema can be reached on 571-270-3037. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/THOMAS J DAILEY/ Primary Examiner, Art Unit 2458
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