DETAILED ACTION
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
1. Claims 1-20 of the instant application are objected-to as reciting allowable subject matter, and the application claims appear to be in condition for patenting; however, there is currently an outstanding ‘non-statutory double-patenting rejection’ applied to the claims (see below), which can be overcome or obviated by the filing of a terminal disclaimer.
Double Patenting
The non-statutory 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 non-statutory 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 non-statutory 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 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 of the instant application are rejected on the ground of non-statutory obviousness-type double patenting as being unpatentable over claims 1-20 of Jeon et al, U.S. Patent 12,316,495 B2 (hereinafter Patent ‘495). Although the conflicting claims are not identical, they are not patentably distinct from each other.
The subject matter claimed in the instant application is technically disclosed in the patent since the patent and the instant application are claiming similar and/or overlapping subject matter. Independent claims 1, 9 and 17 of the instant application and independent claims 1, 9 and 17 of the Patent both generally recite and/or describe the same invention, such as:
A computer-implemented method for mitigating performance degradation of a computing device, the computer-implemented method comprising:
obtaining one or more configuration settings for mitigating the performance degradation;
determining, based on the one or more configuration settings, an order of actions for mitigating the performance degradation based on at least an amount of memory freed from each action in the order of actions, wherein a first action in the order of actions results in the most amount of memory freed when compared to other actions in the order of actions;
receiving a first notification that utilization of at least one compute resource of the computing device has met a degradation condition;
determining, by at least one computer processor, a level of severity of the degradation condition based on the one or more configuration settings; and
performing, based on the first notification, the first action followed by the other actions to mitigate the performance degradation in accordance with the order of actions and the level of severity.
Claims 1-20 of the instant application, and independent claims 1, 9 and 17 in particular, are drawn to the same invention and recite substantially identical features / limitations as the independent claims of Patent ‘495. Both the instant application and the Patent recite the same method steps, elements and/or limitations; however, Patent ‘495 expressly recites in part the step or limitation of “receiving, from a data source external to the computing device, one or more configuration settings for mitigating the performance degradation”, while independent claim 1 of the instant application expressly recites as an equivalent or counterpart “obtaining one or more configuration settings for mitigating the performance degradation …”.
Thus, the claimed invention in the instant application implements the same methodology described by the Patent ‘495. Accordingly, Claims 1-20 of Patent ‘495 anticipate all of the limitations recited by the independent claims of the instant application.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to GLENFORD J MADAMBA whose telephone number is (571)272-7989. The examiner can normally be reached on Mondays to Fridays, from 9am to 5pm.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Christopher Parry, can be reached at telephone number 571-272-7989. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/GLENFORD J MADAMBA/Primary Examiner, Art Unit 2451
