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 Objections
Applicant is advised that should claims 15 and 16 be found allowable, claims 22 and 23 will be objected to under 37 CFR 1.75 as being a substantial duplicate thereof. When two claims in an application are duplicates or else are so close in content that they both cover the same thing, despite a slight difference in wording, it is proper after allowing one claim to object to the other as being a substantial duplicate of the allowed claim. See MPEP § 608.01(m).
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 1-23 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 applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
MPEP § 2106.03 states that “35 U.S.C. 101 enumerates four categories of subject matter that Congress deemed to be appropriate subject matter for a patent: processes, machines, manufactures and compositions of matter. As explained by the courts, these "four categories together describe the exclusive reach of patentable subject matter.”
MPEP § 2106.03 also states that “A process defines ‘actions’, i.e., an invention that is claimed as an act or step, or a series of acts or steps. As explained by the Supreme Court, a ‘process’ is ‘a mode of treatment of certain materials to produce a given result. It is an act, or a series of acts, performed upon the subject-matter to be transformed and reduced to a different state or thing.’”
Claims 1-9 recite a “method” in the preamble. However, claim 1 then recites “a software-defined wide area network (SD-WAN) controller” and “a network device of the SD-WAN”. Therefore, it is unclear as to which statutory category these claims are intended to be directed to.
Claims 18-21 recite “an apparatus”. Since their antecedent independent claim 17 recites a “controller”, it is also unclear what statutory category these claims are directed to.
Claims 1-23 recite “multiple application identifiers” and then corresponds this limitation with an acronym (“AppIDs”). Claims 1-23 also recite “a software-defined wide area network” and then corresponds this limitation with an acronym (“SD-WAN”). However, the claims then later references the “SD-WAN” acronym but not the “AppIDs” acronym. Therefore, the use of an acronym for the multiple application identifiers is unclear as the claims fail to properly reference the claimed element with this new moniker.
Claims 1-9 recite “the application identifiers”. There is insufficient antecedent basis for this limitation in the claims. Examiner will assume that this refers to “the multiple application identifiers” previously recited.
Claims 1-8 recite “the difference policies”. There is insufficient antecedent basis for this limitation in the claims. Examiner will assume that this refers to the “different policies” previously recited.
Claims 1-9 recite “a network device of the SD-WAN enforcing a first of the difference policies on the first flow based on application precedence”. Since the claims already require that “application precedence” is determined by the “SD-WAN controller”, it is unclear whether this later recitation refers to the previous recited limitation. Examiner will assume that this is the case.
Claims 17-21 recite “the processor”. There is insufficient antecedent basis for this limitation in the claim.
Applicant’s assistance is requested to identify any other errors Applicant may become aware of.
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, 9-10, and 17 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 2 and 4 of U.S. Patent No. 12,238,010 to Sang et al. (“Sang”) in view of U.S. Patent No. US 10,873,533 to Ismailsheriff et al. (“Ismailsheriff”).
The following table(s) show the correspondence between claims and claims of Sang (relevant limitations from antecedent claims have been included as necessary):
1. A method comprising:
1. A method comprising:
a software-defined wide area network (SD-WAN) controller that manages multiple flows of network traffic across a SD-WAN determining multiple application identifiers (AppIDs) for at least a first of the multiple flows, wherein the application identifiers identify an application with different specificity or accuracy and different policies are set for the multiple application identifiers;
the SD-WAN controller determining application precedence configured or defined for the multiple application identifiers; and
in a control plane,
inspecting a first flow of network traffic to identify applications indicated in the network traffic; for each of a plurality of applications identified based on inspecting, determining one of a plurality of priority values previously assigned to the identified application;
2. The method of claim 1, further comprising ordering identifiers of the plurality of applications according to the priority values,
wherein the precedence is indicated by the ordering.
a network device of the SD-WAN
enforcing a first of the difference policies on the first flow based on application precedence.
9. The method of claim 1, wherein the network device corresponds to a data plane.
in a data plane, selecting policies based, at least in part, on identifiers of the plurality of applications; and
enforcing the selected policies on network traffic corresponding to the flow according to precedence as represented by the determined priority values.
10. A non-transitory, machine-readable medium having program code for a software-
defined wide area network (SD-WAN) controller stored thereon, the program code
comprising instructions to:
1. A method comprising:
in a control plane,
determine multiple application identifiers (AppIDs) for at least a first of multiple
flows of network traffic across a SD-WAN, wherein the multiple application identifiers identify an application with different specificity or accuracy and different policies are set for the multiple application
identifiers;
determine application precedence configured or defined for the multiple
application identifiers; and
inspecting a first flow of network traffic to identify applications indicated in the network traffic; for each of a plurality of applications identified based on inspecting, determining one of a plurality of priority values previously assigned to the identified application;
2. The method of claim 1, further comprising ordering identifiers of the plurality of applications according to the priority values,
wherein the precedence is indicated by the ordering.
communicate from the SD-WAN controller to a network device of the SD-WAN
the multiple application identifiers and the determined application
precedence
for enforcement of at least a first of the different policies on
the first flow according to the determined application precedence.
4. The method of claim 1, further comprising communicating one of: identifiers of
the plurality of applications in order according to the priority values from the control plane to the data plane.
in a data plane, selecting policies based, at least in part, on identifiers of the plurality of applications; and
enforcing the selected policies on network traffic corresponding to the flow according to precedence as represented by the determined priority values.
17. A controller for a software-defined wide area network (SD-WAN) comprising: a process; and
a non-transitory machine-readable medium having stored thereon instructions executable by the processor to cause the SD-WAN controller to,
1. A method comprising:
in a control plane,
determine multiple application identifiers (AppIDs) for at least a first of multiple
flows of network traffic across a SD-WAN, wherein the multiple application identifiers identify an application with different specificity or accuracy and different policies are set for the multiple application
identifiers;
determine application precedence configured or defined for the multiple
application identifiers; and
inspecting a first flow of network traffic to identify applications indicated in the network traffic; for each of a plurality of applications identified based on inspecting, determining one of a plurality of priority values previously assigned to the identified application;
2. The method of claim 1, further comprising ordering identifiers of the plurality of applications according to the priority values,
wherein the precedence is indicated by the ordering.
communicate from the SD-WAN controller to a network device of the SD-WAN
the multiple application identifiers and the determined application
precedence
for enforcement of at least a first of the different policies on
the first flow according to the determined application precedence.
4. The method of claim 1, further comprising communicating one of: identifiers of
the plurality of applications in order according to the priority values from the control plane to the data plane.
in a data plane, selecting policies based, at least in part, on identifiers of the plurality of applications; and
enforcing the selected policies on network traffic corresponding to the flow according to precedence as represented by the determined priority values.
One of the main differences between claims and claims of Sang lies in the recitations of a “software-defined wide area network (SD-WAN) controller” in claims as opposed to a “control plane” in claims of Sang. However, as shown in Ismailsheriff at column 15, lines 24-51, a SD-WAN controller can “operate as” a “WAN fabric controller” which “distribute[s] route and policy information via a control plane protocol” of numerous types. Therefore, one skilled in the art would have found it to be an obvious variation to have a “software-defined wide area network (SD-WAN) controller” embodied as a “control plane” based on these teachings in Ismailsheriff.
The same as applied to other limitations such as the “network traffic across an SD-WAN” as opposed to “network traffic”. Ismailsheriff at least at column 15, lines 24-51 teaches the “WAN fabric” and at least column 31, line 10-column 32, line 13 regarding “traffic” over such.
Another main difference is in the recitation of “wherein the application identifiers identify an application with different specificity or accuracy and different policies are set for the multiple application identifiers” in claims 1, 10, and 17, however, it is found that such would have been an obvious variation of the “identifiers of the plurality of applications” in which the limitation of identifying the application “with different specificity or accuracy” is an obvious characteristic of an “identifier” that uniquely identifies an “application” “for each of a plurality of applications identified”. Furthermore, the “different policies” “set for the multiple application identifiers” is also an obvious variation of the “priority value” “previously assigned” to the “application” identified such that their “ordering” “according to the priority values” would be considered to equivalent to a generic “policy” of priority for each “application”.
Furthermore, the differences in claims 10 and 17 are only found in the different statutory categories of invention and are otherwise obvious variations of the method claims of 2 and 4 of Sang.
The rest of the claimed limitations are otherwise anticipated by the recitations of claims 2 and 2 and 4 in combination of Sang.
Therefore, claims 1, 9-10, and 17 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 2 and 4 of Sang in view of Ismailsheriff.
Conclusion
An updated search revealed additional prior art that is considered pertinent to the claimed invention and/or to the broader disclosure regarding the use of SD-WAN controllers and data planes with SD-WAN. Consider, e.g., US 20210314385 A1 to Pande et al.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to G. C. Neurauter, Jr. whose telephone number is (571)272-3918. The examiner can normally be reached Monday-Friday 9am-5pm Eastern Time.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Tonia Dollinger, can be reached at 571-272-4170. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/G. C. Neurauter, Jr./Primary Examiner, Art Unit 2459
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