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 §§ 706.02(l)(1) - 706.02(l)(3) 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 USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The 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/process/file/efs/guidance/eTD-info-I.jsp.
Claims 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No 12,216,903. Although the claims at issue are not identical, they are not patentably distinct from each other because the ‘903 claims and/or combinations of the ‘903 claims cover the entirety of the claimed subject matter currently claimed in the instant application.
Claims 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-17 of U.S. Patent No 11,119,656. Although the claims at issue are not identical, they are not patentably distinct from each other because the ‘656 claims and/or combinations of the ‘656 claims cover the entirety of the claimed subject matter currently claimed in the instant application.
Claims 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-17 of U.S. Patent No 10,359,942. Although the claims at issue are not identical, they are not patentably distinct from each other because the ‘942 claims and/or combinations of the ‘942 claims cover the entirety of the claimed subject matter currently claimed in the instant application.
Please note that MPEP § 804 states:
“A complete response to a nonstatutory double patenting (NSDP) rejection is either a reply by applicant showing that the claims subject to the rejection are patentably distinct from the reference claims or the filing of a terminal disclaimer in accordance with 37 CFR 1.321 in the pending application(s) with a reply to the Office action (see MPEP § 1490 for a discussion of terminal disclaimers). Such a response is required even when the nonstatutory double patenting rejection is provisional. As filing a terminal disclaimer, or filing a showing that the claims subject to the rejection are patentably distinct from the reference application’s claims, is necessary for further consideration of the rejection of the claims, such a filing should not be held in abeyance. Only objections or requirements as to form not necessary for further consideration of the claims may be held in abeyance until allowable subject matter is indicated. Replies with an omission should be treated as provided in MPEP § 714.03. “
In accordance with MPEP § 804 and §714.03 the examiner will hold any response/amendments to this office action as NON-COMPLIANT without any additional extensions of time that do not contain one of:
An approved Terminal Disclaimer, OR
A Showing that the claims subject to the rejection are patentably distinct from the reference claims.
In regards to b.) The showing must be made against the claims subject to the rejection (not amended claims), as such the claims as they were originally written and rejected. A showing against amended claims is NOT proper, as the original claims have already been examined (i.e. elected by original presentation, see MPEP §821.03), and presenting all amended claims directed to another patently distinct invention will result in the claims not being entered and being the response designated as nonresponsive. A proper showing or a filing of a terminal disclaimer is required for further consideration of the rejection of the claims. Depending on the claims that have been filed and rejected under NSDP, it may be practically impossible for any arguments and/or evidence to be capable of providing a proper showing that the claims as filed are patentably distinct. In this case, the applicant should file the terminal disclaimer, as it is required for a complete response to this action, and further consideration of the application.
As show below, the filing of a Terminal Disclaimer is not an admission, creates no issues of estoppel, and can be petitioned to be removed once the claims are in condition for allowance and the applicant believes (and can show) the allowable claims are now patentably distinct from the original reference claims.
“The filing of a terminal disclaimer to obviate a rejection based on nonstatutory double patenting is not an admission of the propriety of the rejection. Quad Environmental Technologies Corp. v. Union Sanitary District, 946 F.2d 870, 20 USPQ2d 1392 (Fed. Cir. 1991). In Quad Environmental Technologies, the court indicated that the "filing of a terminal disclaimer simply serves the statutory function of removing the rejection of double patenting, and raises neither a presumption nor estoppel on the merits of the rejection." “(MPEP § 804.02).
“If a terminal disclaimer is filed in an application in which the claims are then canceled or otherwise shown to be patentably distinct from the reference claims, the terminal disclaimer may be withdrawn before issuance of the patent by filing a petition under 37 CFR 1.182 requesting withdrawal of the recorded terminal disclaimer. A terminal disclaimer may not be withdrawn after issuance of the patent. See MPEP § 1490, subsection VIII, for a complete discussion of withdrawal of a terminal disclaimer.” (MPEP § 804.02).
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)(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 1-3, 7-11, and 15-18 is/are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Watanabe (US 2017/0024142)
In regards to claims 1, 8, and 15, taking claim 1 as exemplary Watanabe teaches
A storage system comprising: (fig. 3, 4 ¶85 storage subsystem 10)
a plurality of nodes comprising a plurality of storage devices; (fig. 3, 4 ¶85 storage subsystem 10 and PDEVs 17, the storage media 176 of a PDEV can be NAND type flash (i.e the PDEV is a SSD and each PDEV can be considered a “node”, a group of PDEVs arranged into a RAID could also be considered a “node” as the claim doesn’t explicitly state that each node comprises a plurality of storage devices)
a storage system controller, operatively coupled to the plurality of nodes, comprising a processing device configured to: (fig. 3, ¶77 storage controller(s) 11 contain CPU 18 (processing device) and are coupled to the PDEVs 17 (nodes) via the interconnection network 14 and backend controller 16)
identify a subset of the plurality of nodes having similar data to data to be stored in the storage system using a plurality of hashes corresponding to the data to be stored; (fig. 23, ¶254-257 teaches that an anchor chunk fingerprint (hash value) is used to search an index to match the hash to one or more PDEVs (nodes). A plurality of anchor chunks are used to generate a candidate placement list (i.e. an identified subset of the plurality of PDEVs (nodes). ¶45 teaches that a chunk fingerprint is a hash value. ¶56 teaches that matching anchor chunk fingerprints (hashes) indicates that the data used to created these anchor chunk fingerprints is similar.)
transmit the data to be stored in the storage system to a particular node of the subset of the plurality of nodes having data similar to the data based on node characteristics received from the particular node. (fig. 23, ¶258 teaches step S8139 then selects (identifies) a PDEV (disk/node) to place the data (i.e. transmit the data to be stored) based on the free capacity (node characteristics) of the disks on the placement list (subset of the plurality of nodes having similar data). The PDEV on the candidate list with the greatest capacity is selected as the data destination. The capacity (characteristics) of the drives/node is determined by the PDEV management information 700, which can be stored on the individual PDEVs (see ¶89), therefore the storage controller 11 would have to receive this capacity data (characteristics) from the individual PDEVs (on the candidate list) to make this determination.
In regards to claims 2, 9, and 16, Watanabe further teaches
wherein the plurality of hashes is generated by a rolling hash algorithm. (¶44-45 teaches the write data is split up into chunks and a chunk fingerprint via a hash algorithm is calculated for each chunk (i.e. a plurality of hashes are generated via a rolling hash algorithm on the received data.)
In regards to claims 3, 10, and 17 Watanabe further teaches
wherein node characteristics comprise results of a calculation that considers available capacity of the particular node and throughput of the particular node. (fig. 23, ¶258 teaches the PDEV on the candidate list with the greatest capacity is selected as the data destination. The capacity (characteristics) of the drives is determined by the PDEV management information 700, which can be stored on the individual PDEVs (see ¶89), therefore the storage controller 11 would have to receive this capacity data (characteristics) from the individual PDEVs (on the candidate list) to make this determination. ¶223-231 teaches the data storage rate and/or deduplication rate (throughput) can also be determined (i.e calculation performed) and used to return capacity information such as virtual capacity 1111, virtual amount of stored data 1112, actual capacity 1113 or amount of stored data after deduplication 1114).
In regards to claims 4, 11, and 18 Watanabe further teaches
wherein the processing device is further configured to:
determine a subset of the plurality of storage devices to perform the calculation in view of a predetermined number of low order bits corresponding to the plurality of hashes. (¶234 teaches the capacity inquiry request can selectively be sent to the PDEVs to which the similar data storage has been processed (i.e. once data has been sent to PDEV(s) those PDEV(s) can be commanded to update (perform the calculation) their capacity characteristics. (¶46-47 teaches the anchor hashes(first subset corresponding to plurality of hashes) are selected using a the formula (chunk fingerprint value) mod N = 0. Whenever N is a power of 2, i.e 2x, X would be the number of low order bits of the hash that would all need to be 0 in order to be selected as anchor fingerprint (hash). For example if X=3, then N would = 8, then any binary number with its 3 lowest bits as 0 would have a modulus of 0 in the formula and be selected as an anchor fingerprint (i.e. a selected subset).
In regards to claims 5, 12, and 19 Watanabe further teaches
wherein the calculation considers a load on one or more of the plurality of storage devices. (¶223-231 teaches the data storage rate (load) and/or deduplication rate (throughput) can also be determined (i.e calculation performed) and used to return capacity information such as virtual capacity 1111, virtual amount of stored data 1112, actual capacity 1113 or amount of stored data after deduplication 1114).
In regards to claims 6 and 13, Watanabe further teaches
wherein the plurality of storage devices have differing capacities. (fig. 23, ¶258 teaches step S8139 then selects a PDEV (disk/node) to place the data based on the free capacity (i.e. the storage devices have differing capacities)
In regards to claims 7, 14, and 20, Watanabe further teaches
wherein the plurality of storage devices comprises one or more managed flash storage devices that offload management responsibilities to the storage system controller. (¶85-86 teaches that the storage devices can be capable of performing deduplication autonomously (i.e. management responsibilities), but that this function can be performed by the controller 11 (storage system controller), and that the storage devices comprise storage media 176 which can be NAND flash memory.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure:
Liu (US 2014/0201169) teaches using sketches (hashes) for determining the physical nodes to place data and the use of additional characteristics from the nodes.
Condict (US 2013/0018854) teaches using hashing to determine storage locations to improve deduplication within storage clusters
Czerkowicz (US 2015/0242315) uses different strength hashes to identify storage locations for data.
This is a Continuation of applicant's earlier Application No. 17/407,813. All claims are drawn to the same invention claimed in the earlier application and could have been finally rejected on the grounds and art of record in the next Office action if they had been entered in the earlier application. Accordingly, THIS ACTION IS MADE FINAL even though it is a first action in this case. See MPEP § 706.07(b). 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 extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no, however, event 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 JASON W BLUST whose telephone number is (571)272-6302. The examiner can normally be reached on 12-8:30 EST.
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, Hosain Alam can be reached on (571) 272-3978. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JASON W BLUST/Primary Examiner, Art Unit 2137