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 . This Office Action is in reply to communication filed on 03/31/2025.This application is a continuation of 18/242,913, with a priority date of 09/06/2023.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 04/09/2025 was filed after the mailing date of the original application on 03/31/2025. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
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.
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Claims 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. US 12323381 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because pending claims 1. 8, and 15 generalize the same optimization into a “cost-based criterion” and “performance-based criterion”. Issued Patent claims 1, 8, and 15 contain the more specific statistical implementation with the same routing optimization parameters in the more specific form of estimating statistical distribution parameters from the delivery data and determining an allocation that does not exceed a specified cost ceiling while yielding a maximum value of a chosen message-delivery metric.
Mapping Table for claims 1-20.
Pending claim
US 12323381
Annotations
OTDP
1
1
Same receipt of message-delivery data, plurality of routing providers, destination network, allocation of outgoing messages, and no-feedback origination entity. Patent claim 1 additionally estimates statistical-distribution parameters and specifically requires a cost ceiling and maximized delivery metric. Pending claim broadly recites the corresponding cost-based plus performance-based criteria.
Reject
2
2
Same receipt of originating-entity messages and forwarding to the determined allocation. Patent claim 2 is essentially verbatim.
Reject
3
3
Pending “performance-based criterion” reflects likehood of successful delivery; patent “chosen message delivery metric” reflects the same likelihood.
Reject
4
4
Same plurality of provider weights, each representing the provider’s share of routed messages.
Reject
5
5
Pending claim places the lower confidence bound in “message delivery data”; patented claim places it in the estimated statistical parameter. Both use the lower end of a confidence interval of successful-delivery likelihood.
Reject
6
6
Both require the per-provider delivery determination/value to be independent of performance of other routing providers.
Reject
7
7
Same first/subsequent sliding windows, successful-message counts, defined threshold, and reset of delivery data. Issue claim s expressly recites this limitation.
Reject
8
8
System counterpart to claims 1/1. Patent claim 8 adds statistical parameter estimation and specifically maximizes a metric under a cost ceiling; pending claim broadly states cost/performance criteria.
Reject
9
9
Same receiving and forwarding based on allocation.
Reject
10
10
Same successful- message delivery likelihood limitation.
Reject
11
11
Same provider weight allocation/share limitation.
Reject
12
12
Same lower-confidence-bound concept; difference is characterization as delivery data versus statistical parameter.
Reject
13
13
Same independence from performance of other routing providers.
Reject
14
14
Same sliding-window comparison, threshold, and rest operation. Patent claims 8-14 provides the corresponding system claim set.
Reject
15
15
Same routing optimization; patented claim specifies statistical estimation and maximum metric under cost ceiling, while pending claim generalizes those features.
Reject
16
16
Same receive/forward operations according to allocation.
Reject
17
17
Same likelihood of successful delivery criterion/metric.
Reject
18
18
Same plurality of provider weights representing shares of routed messages.
Reject
19
19
Same plurality of provider weights representing shares of routed messages.
Reject
20
20
Same per-provider independence from performance of other providers.
Reject
Accordingly, it would have been obvious to one of ordinary skill in the art to broadly characterize the specific cost-ceiling and maximum-delivery-metric requirements of the patent as respective cost-based and performance-based criteria, and to determine the allocation directly from the underlying message delivery data without expressly reciting the intermediate statistical estimation step. Such differences merely generalize the expressly claimed optimization technique and do not impart patentable distinctness. Dependent claims 2-7, 9-14, and 16-20 recite substantially the same corresponding forwarding, successful delivery likelihood. Provider-weight, confidence-interval, provider-independence, and sliding window/reset limitations already claimed in claims 2-7, 9-14, and 16-20 of the patent. Claims 1-20 are not patentably distinct from the claims of US Patent 12,323,381 A1.
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 1-4, 6, 8-11, 13, 15-18 and 20 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Janovsky et al., US 20220224632 A1.
Regarding claim 1-4, 6, 8-11, 13, 15-18 and 20, Janovski teaches:
1. A method, comprising (par. 0017-0018 and fig. 1): receiving, by a processing device, message delivery data characterizing message delivery by a plurality of message routing providers to a specified destination network (par. 0044-0059); and determining, based on the message delivery data, an allocation of outgoing messages to message routing providers (0039-0041, 0050, 0054-0057), the allocation satisfying a cost-based criterion (0039-0040, 0054, and 0057) and a performance-based criterion ((par. 0039-0050, 54 and 57) for delivery of messages originated by a message originating entity (0021-0038 and 0053-0057) that has not provided at least part of the message delivery data (0044-0050, 0054, and 0057).
2. The method of claim 1, further comprising: receiving one or more messages from the message originating entity (0021-0029 and 0053); and forwarding the one or more messages to respective message routing providers based on the allocation of outgoing messages to message routing providers (0039-0041 and 0054-0057).
3. The method of claim 1, wherein the performance-based criterion reflects a likelihood of successful message delivery to the specified destination network (0044-0050 and 0054-0057).
4. The method of claim 1, wherein the allocation of outgoing messages to message routing providers is specified by a plurality of provider weights, such that each provider weight of the plurality of provider weights represents a share of messages to be routed by a corresponding message routing provider (0039-0041 and 0057).
6. The method of claim 1, wherein the message delivery data associated with a message routing provider does not depend upon performance of message routing providers other than the message routing provider (par. 0044-0050).
8. A system, comprising (par. 0017-0018 and fig. 1): a memory; and a processing device, coupled to the memory, the processing device configured to perform operations, comprising: receiving message delivery data characterizing message delivery by a plurality of message routing providers to a specified destination network (par. 0039-0059); and determining, based on the message delivery data, an allocation of outgoing messages to message routing providers, the allocation satisfying a cost-based criterion (0039-0040, 0054, and 0057) and a performance-based criterion (0039-0040, 0054, and 0057) for delivery of messages originated by a message originating entity (0021-0038 and 0053-0057) that has not provided at least part of the message delivery data (0044-0050, 0054, and 0057).
9. The system of claim 8, wherein the operations further comprise: receiving one or more messages from the message originating entity; and forwarding the one or more messages to respective message routing providers based on the allocation of outgoing messages to message routing providers (0039-0041 and 0054-0057).
10. The system of claim 8, wherein the performance-based criterion reflects a likelihood of successful message delivery to the specified destination network (0044-0050 and 0054-0057).
11. The system of claim 8, wherein the allocation of outgoing messages to message routing providers is specified by a plurality of provider weights, such that each provider weight of the plurality of provider weights represents a share of messages to be routed by a corresponding message routing provider (0039-0041 and 0057).
15. A non-transitory computer-readable storage medium comprising executable instructions that, responsive to execution by a processing device, cause the processing device to perform operations (par. 0017-0018 and fig. 1), comprising: receiving message delivery data characterizing message delivery by a plurality of message routing providers (par. 0039-0059) to a specified destination network; and determining, based on the message delivery data, an allocation of outgoing messages to message routing providers, the allocation satisfying a cost-based criterion and a performance-based criterion for delivery of messages originated by a message originating entity (0021-0038 and 0053-0057) that has not provided at least part of the message delivery data (0044-0050, 0054, and 0057).
16. The non-transitory computer-readable storage medium of claim 15, wherein the operations further comprise receiving one or more messages from the message originating entity; and forwarding the one or more messages to respective message routing providers based on the allocation of outgoing messages to message routing providers (0039-0041 and 0054-0057).
17. The non-transitory computer-readable storage medium of claim 15, wherein the performance-based criterion reflects a likelihood of successful message delivery to the specified destination network (0044-0050 and 0054-0057).
18. The non-transitory computer-readable storage medium of claim 15, wherein the allocation of outgoing messages to message routing providers is specified by a plurality of provider weights, such that each provider weight of the plurality of provider weights represents a share of messages to be routed by a corresponding message routing provider (0039-0041 and 0057).
20. The non-transitory computer-readable storage medium of claim 15, wherein the message delivery data associated with a message routing provider does not depend upon performance of message routing providers other than the message routing provider (par. 0044-0050).
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 5, 12, and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Janovsky et al., US 20220224632 A1, in view of Yuan et al., US 20160295355 A1.
Regarding claim 5, Janovsky teahes the invention substantially as claimed. The inventor discloses the method of claim 1, but fails to disclose a method “wherein the message delivery data associated with a message routing provider reflects a lower end of a confidence interval of a likelihood of successful message delivery by the message routing provider.” This feature is well-known in the art as evidenced Yuan.
In the same field of endeavor, Yuan teach “ ... data reading success rate with a second threshold, and when the data reading success rate is less than the second threshold, acquiring an interference energy intensity of the current working channel, where if the interference energy intensity is greater than a third threshold, the current working channel is interfered, and the data reading success rate is a ratio of a quantity of messages received by the first routing node to a quantity of messages sent by the first routing node within a preset time.”(see Yuan, par, 0011).
Accordingly, It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to substitute the “confidence interval of a likelihood of successful message delivery “, using the threshold and interference energy comparison, within the system of Janovsky because the person would have realized that the remaining element would perform the same functions as before. “Omission of element and its function in combination is obvious expedient if the remaining elements performs the same functions as before.” See In re Karlson (CCPA) 136 USPQ 184, decide Jan 16, 1963, Appl. No. 6857, U.S. Court of Customs and Patent Appeals. Using this mechanism can be useful in network data transmission, to resolve the problem of relatively low success rate (see Yuan, par. 0006-0007). By this rationale, claim 5 is rejected.
Likewise missing the combination Janovsky-Yuan is used to reject claims 12 and 19 below:
12. The system of claim 8, wherein the message delivery data associated with a message routing provider reflects a lower end of a confidence interval of a likelihood of successful message delivery by the message routing provider (see Yuan, par, 0011).
19. The non-transitory computer-readable storage medium of claim 15, wherein the message delivery data associated with a message routing provider reflects a lower end of a confidence interval of a likelihood of successful message delivery by the message routing provider (see Yuan, par, 0011).
Allowable Subject Matter
Claims 7 and 14 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
CONCLUSION
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Jude Jean-Gilles whose telephone number is 571-272-3914. The examiner can normally be reached on Mon-Fri, from 9:00AM-5:00PM.
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/JUDE JEAN GILLES/Primary Examiner, Art Unit 2459
August 8, 2026
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