DETAILED ACTION
Claims 1-20 are pending and have been examined.
This application is a CON of 17/564,637, now US 12,323,299.
17/564,637 was allowed based on PTAB decision 2024-002695.
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 § 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 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over Claims 1-20 of U.S. Patent No. 12,323,299. Although the claims at issue are not identical, they are not patentably distinct from each other because the patent claims anticipate the instant applications claims with the only difference being the receiving limitations are “through a user interface” in the patent, which is further limiting than the instant application’s claims that do not specify where the information received is sent from.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-20 are rejected under 35 U.S.C. 103 as being unpatentable over US 2019/0132254 A1 (Isaacs), in view of US 10,009,443 B1 (Guigli).
As to Claims 1, 8 and 15, Isaacs discloses a method; a non-transitory computer readable medium; and a system, respectively, of managing servers, the method comprising:
receiving a definition of multiple server states (Isaacs discloses the user interface that receives definitions of multiple server states; and determining a defined configuration operation for each of the multiple server states – Figs. 1, 2, 4 and 5; and ¶¶ [0029-0032, 0037-0039, 0059]);
receiving, through the user interface, a defined configuration operation for each of the multiple server states (Isaacs discloses the user interface that receives definitions of multiple server states; and determining a defined configuration operation for each of the multiple server states – Figs. 1, 2, 4 and 5; and ¶¶ [0029-0032, 0037-0039, 0059]);
determining, by a server configuration tool, multiple states of a plurality of servers (Isaacs discloses the user interface that receives definitions of multiple server states; and determining a defined configuration operation for each of the multiple server states – Figs. 1, 2, 4 and 5; and ¶¶ [0029-0032, 0037-0039, 0059]. The computer system then uses the user-defined actions to cause implementation of said definitions - ¶ [0039] and Fig. 5);
determining, for each of the plurality of servers, one of the defined configuration operations to be performed based on the determined multiple states of the plurality of servers, including determining that a first server is in a first server state while a second server is in a second server state (Isaacs discloses the user interface that receives definitions of multiple server states; and determining a defined configuration operation for each of the multiple server states – Figs. 1, 2, 4 and 5; and ¶¶ [0029-0032, 0037-0039, 0059]. The computer system then uses the user-defined actions to cause implementation of said definitions - ¶ [0039] and Fig. 5. The computer system uses the user-defined actions to cause implementation of said definitions based on differing states of the target systems - ¶¶ [0039-0042] and Fig. 5); and
instructing, by the server configuration tool, a server imager to perform a first configuration operation on the first server based on the first server state and a second configuration action on the second server based on the second server state (Isaacs discloses the user interface that receives definitions of multiple server states; and determining a defined configuration operation for each of the multiple server states – Figs. 1, 2, 4 and 5; and ¶¶ [0029-0032, 0037-0039, 0059]. The computer system then uses the user-defined actions to cause implementation of said definitions - ¶ [0039] and Fig. 5. The computer system uses the user-defined actions to cause implementation of said definitions based on differing states of the target systems - ¶¶ [0039-0042] and Fig. 5).
According to the PTAB appeal decision on the parent application 17/564,637, Isaacs does not disclose “in parallel” in the Applicant’s last limitation. However, Guigli discloses
configuration of multiple application servers in parallel (Guigli discloses the initiator initiating the parallel configuration of servers: “In some implementations, process 220000 may be run in parallel to instantiate and configure multiple application servers.” {emphasis by Examiner}– 18:63-19:4).
It would have been obvious to one of ordinary skill in the art to combine configuration of multiple application servers in parallel, taught by Guigli, with determining, for each of the plurality of servers, one of the defined configuration operations to be performed based on the determined multiple states of the plurality of servers, including determining that a first server is in a first server state while a second server is in a second server state, taught by Isaacs, in order to save configuration time using parallel configuration vs. configuring each recipient individually.
As to Claims 2, 9 and 16, the combination of Isaacs and Guigli discloses the method of claim 1; the non-transitory computer readable medium of claim 8; and the system of claim 15, respectively,
wherein receiving the definition of multiple server states comprises receiving, for each of the server states, at least a server status and a server pool (Issacs discloses the different layers of a multi-layer server network - ¶¶ [0049, 0068]).
As to Claims 3, 10 and 17, the combination of Isaacs and Guigli discloses the method of claim 1; the non-transitory computer readable medium of claim 8; and the system of claim 15, respectively, further comprising:
receiving, through the user interface, a definition of a new server state (Isaacs discloses the user requests to update the server orchestration {new configuration}; new program instructions being generated and distributed to the various plurality of servers by the computer system - ¶¶ [0026-0027]);
receiving, through the user interface, a definition of a new configuration operation for the new server state (Isaacs discloses the user requests to update the server orchestration {new configuration}; new program instructions being generated and distributed to the various plurality of servers by the computer system - ¶¶ [0026-0027]);
re-determining, by the server configuration tool, multiple states of the plurality of servers (Isaacs discloses the user requests to update the server orchestration {new configuration}; new program instructions being generated and distributed to the various plurality of servers by the computer system - ¶¶ [0026-0027]); and
when a third server is determined to be in the new server state, causing the new configuration operation to be performed on the third server (Isaacs discloses the user requests to update the server orchestration {new configuration}; new program instructions being generated and distributed to the various plurality of servers by the computer system - ¶¶ [0026-0027]).
As to Claims 4, 11 and 18, the combination of Isaacs and Guigli discloses the method of claim 1; the non-transitory computer readable medium of claim 8; and the system of claim 15, respectively, further comprising:
receiving, through the user interface, a definition of a new server state (Isaacs discloses the user requests to update the server orchestration {new configuration}; new program instructions being generated and distributed to the various plurality of servers by the computer system - ¶¶ [0026-0027]);
receiving, through the user interface, a definition of a reporting operation for the new server state (Isaacs discloses the user requests to update the server orchestration {new configuration}; new program instructions being generated and distributed to the various plurality of servers by the computer system - ¶¶ [0026-0027]);
re-determining, by the server configuration tool, multiple states of the plurality of servers (Isaacs discloses the user requests to update the server orchestration {new configuration}; new program instructions being generated and distributed to the various plurality of servers by the computer system - ¶¶ [0026-0027]);
when a third server is determined to be in the new server state, causing the reporting operation to be performed (Isaacs discloses the user requests to update the server orchestration {new configuration}; new program instructions being generated and distributed to the various plurality of servers by the computer system - ¶¶ [0026-0027]).
As to Claims 5, 12 and 19, the combination of Isaacs and Guigli discloses the method of claim 1; the non-transitory computer readable medium of claim 8; and the system of claim 15, respectively, further comprising:
causing the multiple states of the plurality of servers to be re-determined, including determining that the first server is in the second server state (Isaacs discloses the user requests to update the server orchestration {new configuration}; new program instructions being generated and distributed to the various plurality of servers by the computer system - ¶¶ [0026-0027]); and
instructing, by the server configuration tool, the server imager to perform the second configuration action on the first server based on the re-determined first server state (Isaacs discloses the user requests to update the server orchestration {new configuration}; new program instructions being generated and distributed to the various plurality of servers by the computer system - ¶¶ [0026-0027]).
As to Claims 6 and 13, the combination of Isaacs and Guigli discloses the method of claim 5; and the non-transitory computer readable medium of claim 12, respectively,
wherein the multiple states of the plurality of servers are re-determined automatically and periodically (Isaacs - ¶ [0027]).
As to Claims 7, 14 and 20, the combination of Isaacs and Guigli discloses the method of claim 5; the non-transitory computer readable medium of claim 12; and the system of claim 19, respectively,
wherein causing the multiple states of the plurality of servers to be re-determined further includes determining that the second server is in a third server state (Isaacs discloses the user requests to update the server orchestration {new configuration}; new program instructions being generated and distributed to the various plurality of servers by the computer system - ¶¶ [0026-0027]),
further comprising:
instructing, by the server configuration tool, the server imager to perform a third configuration action on the second server based on the re-determined second server state (Isaacs discloses the user requests to update the server orchestration {new configuration}; new program instructions being generated and distributed to the various plurality of servers by the computer system - ¶¶ [0026-0027]).
Interview Practice
USPTO Automated Interview Request (AIR)
The USPTO AIR is a new optional online interview scheduling tool that allows Applicants to request an interview with an Examiner for their pending patent application.
The USPTO AIR form is available on our website at: http://www.uspto.gov/patent/laws-and-regulations/interview-practice.
By submitting this type of interview request, the pending patent application will be in compliance with the written authorization requirement for Internet communication in accordance with MPEP §502.03. This authorization will be in effect until the Applicant provides a written withdrawal of authorization to the Examiner of record.
If you have questions or need assistance with the USPTO AIR form or with interview practice at the USPTO, please contact an Interview Specialist at http://www.uspto.gov/patent/laws-and-regulations/interview-practice/interview-specialist or send an email to ExaminerInterviewPractice@USPTO.GOV.
Examiner Notes:
A) Prior to conducting any interview (whether using AIR or not), Applicant(s) must submit an agenda including the proposed date and time, all arguments in writing, and proposed claim amendments (if applicable). Any proposed amendments or arguments not presented in the agenda will only be heard by the Examiner, but because the Examiner will not have heard them in advance and been given an equitable opportunity to consider them, no decision will be rendered, nor agreement made. ALL AGENDAS MUST BE RECEIVED BY THE EXAMINER AT LEAST 24 HOURS PRIOR TO THE START OF THE INTERVIEW, OR THE PREVIOUS BUSINESS DAY, WHICHEVER IS LONGER, or the interview may have to be rescheduled.
B) After-final interviews may be granted, but the agenda must be in compliance with MPEP 713.09 which limits the interview only to discussions of proposed amendments, or clarification for appeal. After-final interviews are not to be conducted for the purpose of rehashing previously made arguments. After seeing the agenda, Examiner will decide whether to grant or deny the interview.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. See Form PTO-892.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to RICHARD G KEEHN whose telephone number is (571)270-5007. The examiner can normally be reached M-F 9:00am - 5:00pm Eastern.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, John A Follansbee can be reached at 571-272-3964. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/RICHARD G KEEHN/Primary Examiner, Art Unit 2444
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