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.
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Claims 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-9,11,17,18,19,20 of U.S. Patent No. 12346204. Although the claims at issue are not identical, they are not patentably distinct from each other because claims 1-9,11,17,18,19,20 of U.S. Patent No. 7321982 contain every element of claims 1-20 of the instant application and thus anticipate the claims of the instant application. Therefore the claims of the instant application are not patentably distinct from the earlier patent claims and as such are unpatentable.
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.
Claim(s) are rejected under 35 U.S.C. 103 as being unpatentable over Farkas et al. (USPN 20190056985A1) in view of Peteva et al. (USPN 20170199770A1).
As per claim 1, Farkas et al. discloses a method implemented in a computer system that includes a processor system (paragraph 0070 – computer with a processor), comprising:
identifying an event from a management system log associated with a first container host, wherein the management system log is a baseboard management controller log, and presence of the event in the management system log is indicative that the first container host identified a fatal system error at the first container host (paragraph 0066 - While some virtualized embodiments are described with reference to VMs for clarity of description, the disclosure is operable with other forms of VCIs. A VCI may be a VM, a container, and/or any other type of virtualized computing instance.; paragraph 0034-0036 – logging of crash information of os’s on vm/container where the system crash is detected and verified, which may include the setting of a flag indicated the detected failure);
determining that a first instance of a container that is provisioned at the first container host has been isolated to the first container host (paragraph 0066 - While some virtualized embodiments are described with reference to VMs for clarity of description, the disclosure is operable with other forms of VCIs. A VCI may be a VM, a container, and/or any other type of virtualized computing instance.; paragraph 0034-0036 – logging of crash information of os’s on vm/container, as indicated the failure on VM’s can also be applied to containers); and
Farkas et al. fails to explicitly state instructing a second container host to provision a second instance of the container at the second container host.
Farkas et al. does disclose in paragraph 0066 - While some virtualized embodiments are described with reference to VMs for clarity of description, the disclosure is operable with other forms of VCIs. A VCI may be a VM, a container, and/or any other type of virtualized computing instance; paragraph 0012 - Upon such an event being detected, depending upon a policy set by an administrator or customer, remediation is performed. For example, the affected VCIs may be shut down, rebooted, migrated, or have another remediation action performed; paragraph 0020 – virtualized computing environment includes a plurality of host computer computing device each having a plurality of VCIs, which can be containers.
Peteva et al. discloses instructing a second container host to provision a second instance of the container at the second container host in paragraphs 0014,0016 - the migrated container is transferred to a pre-provisioned container on the second host-computing device. The pre-provisioned container may include an image having one or more applications and operating system that are identical to that of the transferred container. The second host-computing device may be selected, by the supervisory computing device, as a host computing device having a pre-provisioned container running the same image as the compared container.
Accordingly, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include the migrate the contain from a first host-computing device to a pre-provisioned container on the second host-computing device of Peteva in the performing a remediation of the container of Farkas. A person of ordinary skill in the art would have been motivated to make the modification because providing seamless failover operations when an anomalous or unhealthy behavior is detected with a given physical computing device of the cloud hosting systems, as disclosed in paragraph 0009.
As per claim 2, Farkas et al. discloses wherein: the presence of the event in the management system log is also indicative that the first container host isolated the first instance of the container to the first container host (paragraph 0066 - While some virtualized embodiments are described with reference to VMs for clarity of description, the disclosure is operable with other forms of VCIs. A VCI may be a VM, a container, and/or any other type of virtualized computing instance.; paragraph 0034-0036 – logging of crash information of os’s on vm/container where the system crash is detected and verified, which may include the setting of a flag indicated the detected failure); and
determining that the first instance of the container has been isolated to the first container host is based on the presence of the event in the management system log (paragraph 0066 - While some virtualized embodiments are described with reference to VMs for clarity of description, the disclosure is operable with other forms of VCIs. A VCI may be a VM, a container, and/or any other type of virtualized computing instance.; paragraph 0034-0036 – logging of crash information of os’s on vm/container, as indicated the failure on VM’s can also be applied to containers).
As per claim 9, Farkas et al. discloses wherein the presence of the event in the management system log is also indicative that the first container host initiated writing of a memory dump to persistent storage (paragraph 0046 – write a core dump to NVRAM).
As per claim 12, Farkas et al. discloses a computer system, comprising: a processor system (paragraph 0070 – physical processor); and a computer computer-readable hardware storage device that stores computer- executable instructions that are executable by the processor system (paragraph 0070 – physical processor for executing computer program code or other instructions, the processor has memory which stores instructions) to at least:
identify an event from a management system log associated with a first container host, wherein the management system log is a baseboard management controller log, and presence of the event in the management system log is indicative that the first container host identified a fatal system error at the first container host (paragraph 0066 - While some virtualized embodiments are described with reference to VMs for clarity of description, the disclosure is operable with other forms of VCIs. A VCI may be a VM, a container, and/or any other type of virtualized computing instance.; paragraph 0034-0036 – logging of crash information of os’s on vm/container where the system crash is detected and verified, which may include the setting of a flag indicated the detected failure);
isolate a first instance of a container that is provisioned at the first container host (paragraph 0066 - While some virtualized embodiments are described with reference to VMs for clarity of description, the disclosure is operable with other forms of VCIs. A VCI may be a VM, a container, and/or any other type of virtualized computing instance.; paragraph 0034-0036 – logging of crash information of os’s on vm/container, as indicated the failure on VM’s can also be applied to containers, the isolate is indicating a container has an issue); and
Farkas et al. fails to explicitly state instruct a computer storage medium that stores computer-executable instructions; a second container host to provision a second instance of the container at the second container host.
Farkas et al. does disclose in paragraph 0066 - While some virtualized embodiments are described with reference to VMs for clarity of description, the disclosure is operable with other forms of VCIs. A VCI may be a VM, a container, and/or any other type of virtualized computing instance; paragraph 0012 - Upon such an event being detected, depending upon a policy set by an administrator or customer, remediation is performed. For example, the affected VCIs may be shut down, rebooted, migrated, or have another remediation action performed; paragraph 0020 – virtualized computing environment includes a plurality of host computer computing device each having a plurality of VCIs, which can be containers; paragraphs 0069,0070 – different types of computing devices such as computers, servers.
Peteva et al. discloses a computer storage medium that stores computer-executable instructions (paragraph 0026 – non-transitory computer readable medium having instructions stored thereon; instruct a second container host to provision a second instance of the container at the second container host in paragraphs 0014,0016 - the migrated container is transferred to a pre-provisioned container on the second host-computing device. The pre-provisioned container may include an image having one or more applications and operating system that are identical to that of the transferred container. The second host-computing device may be selected, by the supervisory computing device, as a host computing device having a pre-provisioned container running the same image as the compared container.
Accordingly, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include non-transitory computer readable medium and the migrate the contain from a first host-computing device to a pre-provisioned container on the second host-computing device of Peteva in the computer, server, computing device and performing a remediation of the container of Farkas. A person of ordinary skill in the art would have been motivated to make the modification because providing seamless failover operations when an anomalous or unhealthy behavior is detected with a given physical computing device of the cloud hosting systems, as disclosed in paragraph 0009 and computer-readable medium are used to provide instructions to a processor, as disclosed in paragraph 0203.
Claim Objections
Claim 12 is objected to because of the following informalities: ‘a computer computer-readable’ should be: ‘a computer-readable’. Appropriate correction is required.
Claims 3-8,10,11,13 do not have a prior art rejection because either no prior art could be found or no reason to combine with prior art found.
Claims 14-20 do not have a prior art rejection because either no prior art could be found or no reason to combine with prior art found to reject the following limitations ‘initiating a single process operating mode of the processor system or a single processor operating mode of the processor system based on identifying the occurrence of the fatal system error; initiating writing of a memory dump to persistent storage; and initiating writing of an event to a management system log’.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Yolanda L Wilson whose telephone number is (571)272-3653. The examiner can normally be reached M-F (7:30 am - 4 pm).
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/Yolanda L Wilson/Primary Examiner, Art Unit 2113
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