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).
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Claims 1, 9, 15 are rejected on the ground of nonstatutory double patenting as being unpatentable over independent claims 1, 12, 21 of Patent #12353289. Although the claims at issue are not identical, they are not patentably distinct from each other highlighted below.
Claim 1 of instant application
Claim 1 of Patent 12353289
A system for storing computing device backups, the computing device backups being image-based backups configured to be stored at a cloud storage facility configured to:
Receive a signal to perform a computing device backup of a protected computing device;
In response to the signal, determine if the protected computing device has a communication connection to the cloud storage facility; and
If the protected computing device does have a communication connection to the cloud storage facility, perform a first computing device backup of a first logical volume including sending the computing device backup to the cloud storage facility.
A direct-to-cloud backup with local volume failover system for storing computing device backups, the computing device backups being image-based backups configured to be stored at a cloud storage facility comprising at least one storage server, the cloud storage facility configured to form a local backup chain partition of the computing device backups, the system comprising a backup agent on a first logical volume of a protected computing device, the first logical volume comprising an operating system of the protected computing device, the backup agent configured to: estimate a size for a second logical volume based on a typical size of a backup and an expected disconnect time of the first logical volume;
Designate the second logical volume within a memory of the protected computing device based on the estimated size for the second logical volume, wherein the first logical volume and th second logical volume are both stored in the memory of the protected computing device;
Pair the first and second logical volumes to the cloud storage facility; in response to the received signal, determine if the protected computing device has a communication connection to the cloud storage facility; and
if the protected computing device does not have a communication connection to the cloud storage facility, perform a second computing device backup of the first logical volume and store the second computing device backup on the second logical volume of the protected computing device, the second computing device backup configured to be merged with the cloud storage facility local backup chain partition and subsequently deleted from the second logical volume after merging and based on activity on the protected computing device, the cloud storage facility local backup chain partition including a previously sent first computing device backup of the first logical volume and the merge occurring after the communication connection to the cloud storage facility is reestablished, and the merge occurring prior to performing a subsequent first computing device backup of the first logical volume to the cloud storage facility local backup chain partition after the communication connection to the cloud storage facility is reestablished; wherein the first computing device backup is a full backup, and the second computing device backup is an incremental computing device backup comprising copies of data that had been modified since the first computing device backup, which is determined based on a comparison of a modified time stamp on files and a time stamp of the first computing device backup.
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)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1, 6, 8 are rejected under 35 U.S.C. 102 (a)(1) as being anticipated by Guturi (US Pub # 20200150897).
With regards to claim 1, Guturi discloses a system for storing computing device backups, the computing device backups being image-based backups configured to be stored at a cloud storage facility ([0025] backup snapshot may be archived to a cloud)([0087-0088] archive data of a serialized snapshot tree chain may be stored on the cloud), the system comprising a backup agent configured to ([0022] primary system backup):
receive a signal to perform a computing device backup of a protected computing device ([0025] archive policy to archive snapshots to the cloud);
in response to the signal, determine if the protected computing device has a communication connection to the cloud storage facility ([0045] configured to archive corresponding backup snapshots to cloud 121 based on archive policies);
if the protected computing device does have a communication connection to the cloud storage facility, perform a first computing device backup of a first logical volume including sending the computing device backup to the cloud storage facility ([0045] archive backup snapshots based on archive policies).
With regards to claim 6, Guturi further discloses:
wherein the image-based backups represent content of the first logical volume exactly as the content was stored on the first logical volume at a point in time ([0022] A backup snapshot represents the state of the primary system at a particular point in time (e.g., the state of the file system data)).
With regards to claim 8, Guturi further discloses:
wherein the backup agent is configured to determine if the protected computing device has the communication connection to the cloud storage facility by monitoring for a check-in signal ([0024] Alternatively, the primary server 101 or a third party (e.g., that performs a service monitoring function) can send the failure notification).
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.
Claims 2-5, 7, 9-3. are rejected under 35 U.S.C. 103 as being unpatentable over Guturi (US Pub # 20200150897) in view of Bensinger (U.S Pub # 20130191347).
With regards to claim 2, Guturi does not disclose however Bensinger discloses:
wherein if the protected computing device does not have a communication connection to the cloud storage facility ([0051] if the cloud-based system is deactivated or otherwise becomes unavailable to a user), the backup agent is configured to perform a second computing device backup of the first logical volume and store the second computing device backup on a second logical volume of the protected computing device ([0051] operation of the primary system running at the cloud-based system may failover to a backup system 102,103 to maintain a local backup of the production system).
It would have been obvious for one of ordinary skill in the art before the date the current invention was effectively filed to have modified Guturi by Bensinger to failover a backup when network communications are unavailable.
One of ordinary skill in the art would have been motivated to make this modification in order so data changes to the primary system can be frequently transmitted to the one or more secondary sites to keep them updated (Bensinger [0002]).
With regards to claim 3, Guturi further discloses:
designate the second logical volume on the protected computing device (Fig. 1 #104 secondary storage [0037] Secondary storage system 104 is a storage system configured to store file system data included in a backup snapshot received from primary system 102. [0038] may be secondary snapshots); and
pair the first logical volume and the second logical volume to the cloud storage facility (Fig. 1 [0025] archive snapshots to the cloud. [0035] coupled to the cloud).
With regards to claim 4, Guturi further discloses:
receive an identifier for the second logical volume from a user; and
designate the second logical volume based on the identifier (Fig. 1 #104 secondary storage [0037] Secondary storage system 104 is a storage system configured to store file system data included in a backup snapshot received from primary system 102. [0038] may be secondary snapshots).
With regards to claim 5, Guturi does not disclose however Bensinger discloses:
wherein the second computing device backup of the first logical volume comprises an interposed differential computing device backup that includes a merged version of multiple computing device backups ([0019] differential changes can subsequently be composed and sent to the backup device).
It would have been obvious for one of ordinary skill in the art before the date the current invention was effectively filed to have modified Guturi by Bensinger to failover a backup when network communications are unavailable.
One of ordinary skill in the art would have been motivated to make this modification in order so data changes to the primary system can be frequently transmitted to the one or more secondary sites to keep them updated (Bensinger [0002]).
With regards to claim 7, Guturi does not disclose however Bensinger discloses:
wherein the first logical volume comprises a virtual hard disk ([0041] virtual hard drive).
It would have been obvious for one of ordinary skill in the art before the date the current invention was effectively filed to have modified Guturi by Bensinger to failover a backup when network communications are unavailable.
One of ordinary skill in the art would have been motivated to make this modification in order so data changes to the primary system can be frequently transmitted to the one or more secondary sites to keep them updated (Bensinger [0002]).
With regards to claim 9, Guturi discloses a system for storing image-based computing device backups, the system comprising a backup agent configured to:
determine if a protected computing device has a communication connection to a cloud storage facility in response to reaching a scheduled time to perform a computing device backup of the protected computing device ([0045] archive backup snapshots based on archive policies);
in accordance with the protected computing device having a communication connection to the cloud storage facility, initiate the computing device backup to the cloud storage facility ([0045] backup).
Guturi does not disclose however Bensinger discloses:
determine the communication connection between the protected computing device and the cloud storage facility becomes unavailable during the computing device backup to the cloud storage facility ([0051] if the cloud-based system is deactivated or otherwise becomes unavailable to a user);
in accordance with the communication connection between the protected computing device and the cloud storage facility becoming unavailable, perform the computing device backup to a logical volume of the protected computing device ([0051] operation of the primary system running at the cloud-based system may failover to a backup system 102,103 to maintain a local backup of the production system).
It would have been obvious for one of ordinary skill in the art before the date the current invention was effectively filed to have modified Guturi by Bensinger to failover a backup when network communications are unavailable.
One of ordinary skill in the art would have been motivated to make this modification in order so data changes to the primary system can be frequently transmitted to the one or more secondary sites to keep them updated (Bensinger [0002]).
With regards to claim 10, Guturi does not disclose however Bensinger discloses:
wherein performing the computing device backup to the logical volume of the protected computing device comprises copying a remaining portion of an incremental backup to the logical volume ([0044] duplicate to the second backup system and updated with any incremental delta images).
It would have been obvious for one of ordinary skill in the art before the date the current invention was effectively filed to have modified Guturi by Bensinger to failover a backup when network communications are unavailable.
One of ordinary skill in the art would have been motivated to make this modification in order so data changes to the primary system can be frequently transmitted to the one or more secondary sites to keep them updated (Bensinger [0002]).
With regards to claim 11, Guturi does not disclose however Bensinger discloses:
wherein performing the computing device backup to the logical volume of the protected computing device comprises copying an entire incremental backup to the logical volume ([0044] duplicate to the second backup system and updated with any incremental delta images).
It would have been obvious for one of ordinary skill in the art before the date the current invention was effectively filed to have modified Guturi by Bensinger to failover a backup when network communications are unavailable.
One of ordinary skill in the art would have been motivated to make this modification in order so data changes to the primary system can be frequently transmitted to the one or more secondary sites to keep them updated (Bensinger [0002]).
With regards to claim 12, Guturi further discloses:
the scheduled time to perform the computing device backup is reached when an hour has elapsed since a previous computing device backup; and
the computing device backup comprises an incremental backup ([0039] hourly backup. [0052] incremental backup).
With regards to claim 13, Guturi further discloses:
the scheduled time to perform the computing device backup is reached when a week has elapsed since a previous computing device backup; and
the computing device backup comprises a full backup ([0039] weekly backup. [0052] full backup).
With regards to claim 14, Guturi further discloses:
a scheduling agent configured to schedule the computing device backup in accordance with the scheduled time ([0039] hourly/weekly backup).
With regards to claim 15, Guturi discloses a system for storing image-based computing device backups, the system comprising a backup agent configured to:
determine if a protected computing device has a communication connection to a
cloud storage facility in response to reaching a scheduled time to perform a first computing device backup of the protected device ([0039] weekly or hourly backup to cloud storage);
in accordance with the protected computing device having a communication connection to the cloud storage facility, initiate the first computing device backup to the cloud storage facility ([0039] archive data).
Guturi does not disclose however Bensinger discloses:
determine the communication connection between the protected computing device and the cloud storage facility becomes unavailable during the first computing device backup to the cloud storage facility ([0051] deactivated or becomes unavailable);
in accordance with the communication connection between the protected computing device and the cloud storage facility becoming unavailable:
perform the first computing device backup to a logical volume of the protected computing device ([0051] backup failover); and
wait until a further backup signal is received before performing an additional test to determine if the protected computing device has a communication connection to the cloud storage facility (Fig. 3 [0027] notice of failure after a backup signal); and
in accordance with receiving the further backup signal, determine if the protected computing device has a communication connection to the cloud storage facility (Fig. 3 #307 Yes or no); and
in accordance with the protected computing device having a communication connection to the cloud storage facility, perform a second computing device backup of the logical volume to the cloud storage facility ([0027] send backup 307).
It would have been obvious for one of ordinary skill in the art before the date the current invention was effectively filed to have modified Guturi by Bensinger to failover a backup when network communications are unavailable.
One of ordinary skill in the art would have been motivated to make this modification in order so data changes to the primary system can be frequently transmitted to the one or more secondary sites to keep them updated (Bensinger [0002]).
With regards to claim 16, Guturi does not disclose however Bensinger discloses:
wherein performing the computing device backup to the logical volume of the protected computing device comprises copying a remaining portion of an incremental backup to the logical volume ([0044] duplicate to the second backup system and updated with any incremental delta images).
It would have been obvious for one of ordinary skill in the art before the date the current invention was effectively filed to have modified Guturi by Bensinger to failover a backup when network communications are unavailable.
One of ordinary skill in the art would have been motivated to make this modification in order so data changes to the primary system can be frequently transmitted to the one or more secondary sites to keep them updated (Bensinger [0002]).
With regards to claim 17, Guturi does not disclose however Bensinger discloses:
wherein performing the computing device backup to the logical volume of the protected computing device comprises copying an entire incremental backup to the logical volume ([0044] duplicate to the second backup system and updated with any incremental delta images).
It would have been obvious for one of ordinary skill in the art before the date the current invention was effectively filed to have modified Guturi by Bensinger to failover a backup when network communications are unavailable.
One of ordinary skill in the art would have been motivated to make this modification in order so data changes to the primary system can be frequently transmitted to the one or more secondary sites to keep them updated (Bensinger [0002]).
With regards to claim 18, Guturi further discloses:
scheduling agent configured to schedule the first computing device backup in accordance with the scheduled time ([0039] hourly/weekly backup).
With regards to claim 19, Guturi further discloses:
pair the logical volume to the cloud storage facility (Fig. 1 [0025] archive snapshots to the cloud. [0035] coupled to the cloud);
With regards to claim 20, Guturi further discloses:
determine if the protected computing device has the communication connection to the cloud storage facility by monitoring for a check-in signal ([0024] Alternatively, the primary server 101 or a third party (e.g., that performs a service monitoring function) can send the failure notification).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to TONY WU whose telephone number is (571)272-2033. The examiner can normally be reached Monday-Friday (9-5).
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/TONY WU/ Primary Examiner, Art Unit 2166