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 .
Specification
The title of the invention contains a typo (see “ProcessingProtocol”). A new title is required.
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 1-21 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-3, 5-6, 8-9, 14-17, 19-22, and 27-28 of U.S. Patent No. 12,335,129 (hereinafter “the ‘129 patent”)). Although the claims at issue are not identical, they are not patentably distinct from each other because the patented claims are narrower in scope and thus read on the instant claims as detailed below.
Regarding claim 1, the ‘129 patent discloses a system (Claim 1, Line 1) comprising:
a processor and a memory coupled therewith, the memory storing computer-executable instructions that when executed by the processor (Claim 1, Lines 2-4), causes the processor to:
receive a plurality of packets, each comprising data which collectively form an electronic data message, from a source via a network, each packet of the plurality of packets further characterized by data indicative of a sequence of that packet relative to others of the plurality of packets (Claim 1, Lines 5-12);
augment, upon receipt, each received packet with an indicium (Claim 1, Lines 13-14; A timestamp is an indicium);
store the data of each received packet in a buffer to form the electronic data message therein (Claim 1, Lines 5-6; Receiving a plurality of packets of an electronic data message from a source via a network for processing involves storing them in a buffer);
determine, without regard as to whether any of the plurality of packets includes event dependent or event independent data, whether at least one of the received augmented packets was received in an order different from the sequence by comparing the data indicative of the sequence with the corresponding indicium of each received augmented packet to determine if the order of receipt of the received augmented packets corresponds to the sequence (Claim 1, Lines 15-25); and
based on the determination (Claim 1, Line 26):
hold the electronic data message in the buffer for a period of time before forwarding to a destination for processing when it is determined that at least one of the received augmented packets was received in an order different from the sequence (Claim 1, Lines 26-27; Delaying processing is similar to holding the electronic data message in the buffer for a period of time); and
forward the electronic message from the buffer upon the determination that the received augmented packets were received in an order in accordance with the sequence (Claim 14).
Regarding claim 2, the ‘129 patent further discloses wherein the indicium is indicative of a relationship of that received packet relative to others previously received packets (Claim 1, Lines 9-12; Data indicative of a sequence of that packet relative to others of the plurality of packets).
Regarding claim 3, the ‘129 patent further discloses wherein the indicium is indicative of a sequence encoding (Claim 1, Lines 9-12; Data indicative of a sequence of that packet relative to others of the plurality of packets).
Regarding claim 4, the ‘129 patent further discloses wherein the indicium is indicative of a timestamp (Claim 1, Lines 13-14; Timestamp).
Regarding claim 5, the ‘129 patent further discloses wherein the processor is further operative to not distinguish between inadvertent and intentionally optimistic messaging behavior by the source (Claim 2).
Regarding claim 6, the ‘129 patent further discloses wherein the processor is further operative to not distinguish between inadvertent and intentional reordering of the sequence of the plurality of packets by the source (Claim 3).
Regarding claim 7, the ‘129 patent further discloses wherein the processor is further operative to compute the period of time based on a size for the electronic data message by calculating a product of the size and a serialization for the electronic data message (Claim 5, Lines 6-9).
Regarding claim 8, the ‘129 patent further discloses wherein the processor is further operative to compute the period of time based on a variance in serialization for the electronic data message (Claim 6, Lines 6-8).
Regarding claim 9, the ‘129 patent further discloses wherein when the plurality of packets are received in an order different from the sequence of those plurality of packets, the processor is further operative to:
increment a counter operative to count how many electronic data messages have been received from the source;
compare the counter to a threshold; and
when the counter exceeds the threshold, disconnect the source (Claim 8).
Regarding claim 10, the ‘129 patent further discloses wherein the processor is further operative to:
receive periodic heartbeat messages from the source, and
increment the counter when the processor determines that less than all of the plurality of packets were received prior to receipt of a heartbeat message of the periodic heartbeat messages (Claim 9).
Claim 11 is disclosed by claim 15 of the ‘129 patent similar to how claim 1 is disclosed by claim 1 of the ‘129 patent.
Claim 12 is disclosed by claim 15 of the ‘129 patent similar to how claim 2 is disclosed by claim 1 of the ‘129 patent.
Claim 13 is disclosed by claim 15 of the ‘129 patent similar to how claim 3 is disclosed by claim 1 of the ‘129 patent.
Claim 14 is disclosed by claim 15 of the ‘129 patent similar to how claim 4 is disclosed by claim 1 of the ‘129 patent.
Claim 15 is disclosed by claim 16 of the ‘129 patent similar to how claim 5 is disclosed by claim 2 of the ‘129 patent.
Claim 16 is disclosed by claim 17 of the ‘129 patent similar to how claim 6 is disclosed by claim 3 of the ‘129 patent.
Claim 17 is disclosed by claim 19 of the ‘129 patent similar to how claim 7 is disclosed by claim 5 of the ‘129 patent.
Claim 18 is disclosed by claim 20 of the ‘129 patent similar to how claim 8 is disclosed by claim 6 of the ‘129 patent.
Claim 19 is disclosed by claim 21 of the ‘129 patent similar to how claim 9 is disclosed by claim 8 of the ‘129 patent.
Claim 20 is disclosed by claim 22 of the ‘129 patent similar to how claim 10 is disclosed by claim 9 of the ‘129 patent.
Claim 21 is disclosed by claim 28 of the ‘129 patent similar to how claim 1 is disclosed by claim 1 of the ‘129 patent.
Examiner’s Note
There is no prior art rejection for claims 1-21.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Applicant is directed to any prior art made of record in parent applications 18/199502 and 17/112620.
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/NAM T TRAN/Primary Examiner, Art Unit 2455
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