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 .
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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Claim(s) 19-36 are rejected on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claim(s) 1-15 of USPN 12,355,653 B2.
Regarding independent claim(s) 19, 25 and 31 of the instant application ‘566, the claims recite “A method of transmitting data, the method comprising: receiving, at a first peer device in a multi-home network, a first route table for a first route, wherein the first route table comprises at least a first source identifier, a first group identifier and a first preference value; determining that the first route table was generated by a second peer device in the multi- home network; originating a second route table for a second route that does not include the second peer device, wherein the second route table comprises at least a second source identifier, a second group identifier and a second preference value that is different than the first preference value; transmitting the second route table to at least one peer device in the multi-home network; determining a route to transmit data based on at least the first preference value and the second preference value; and transmitting the data, wherein transmitting the data is based on at least one of the first source identifier, the first group identifier, the second source identifier, or the second group identifier”, these limitations are disclosed by the following limitations of independent claim(s) 1,6 and 11 of USPN 12,355,653 B2 which recites “A method of transmitting data, the method comprising: receiving, at a first peer device in a multi-home network, a first route table for a first route, wherein the first route table comprises at least a first Ethernet Segment Identifier (ESI), a first Ethernet Virtual private network Instance (EVI) and a first preference value; determining that the first route table was generated by and sent from a second peer device in the multi-home network; originating at the first peer device, a second route table for a second route that does not include the second peer device in response to the determination, wherein the second route table is a route table distinct from the first route table and comprises at least a second ESI, a second EVI and a second preference value that is different than the first preference value; transmitting the second route table to at least one peer device in the multi-home network; determining a route to transmit data, wherein the determined route is the first route or the second route based on the first preference value and the second preference value; transmitting the data using the determined route, wherein transmitting the data is based on at least one of the first ESI, the first EVI, the second ESI, or the second EVI; and generating at least one back-up tree of routes through control plane flooding, wherein the generating of at least one back-up tree of routes occurs before a peer device of a plurality of peer devices in the multi-home network fails”.
While the claims of USPN 12,355,653 B2 did not explicitly recite the words “at least a first source identifier, a first group identifier”, USPN 12,355,653 B2 disclose “least a first Ethernet Segment Identifier (ESI), a first Ethernet Virtual private network Instance (EVI)”, that are specific respective examples of “at least a first source identifier, a first group identifier”. Therefore, the limitation is reasonably disclosed as claimed.
As for Claim 19, the limitations are met by claim 1 of USPN 12,355,653 B2.
As for Claim 20, the limitations are met by claim 2 of USPN 12,355,653 B2.
As for Claim 21, the limitations are met by claim 3 of USPN 12,355,653 B2.
As for Claim 22, the limitations are met by claim 4 of USPN 12,355,653 B2.
As for Claim 23, the limitations are met by claim 5 of USPN 12,355,653 B2.
As for Claim 24, the limitations are met by claim 1 of USPN 12,355,653 B2.
As for Claim 25, the limitations are met by claim 6 of USPN 12,355,653 B2.
As for Claim 26, the limitations are met by claim 7 of USPN 12,355,653 B2.
As for Claim 27, the limitations are met by claim 8 of USPN 12,355,653 B2.
As for Claim 28, the limitations are met by claim 9 of USPN 12,355,653 B2.
As for Claim 29, the limitations are met by claim 10 of USPN 12,355,653 B2.
As for Claim 30, the limitations are met by claim 6 of USPN 12,355,653 B2.
As for Claim 31, the limitations are met by claim 11 of USPN 12,355,653 B2.
As for Claim 32, the limitations are met by claim 12 of USPN 12,355,653 B2.
As for Claim 33, the limitations are met by claim 13 of USPN 12,355,653 B2.
As for Claim 34, the limitations are met by claim 14 of USPN 12,355,653 B2.
As for Claim 35, the limitations are met by claim 15 of USPN 12,355,653 B2.
As for Claim 36, the limitations are met by claim 11 of USPN 12,218,839 B1.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DIXON F DABIPI whose telephone number is (571)270-3673. The examiner can normally be reached on Monday - Friday from 9:00 am – 5:00 pm.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Christopher L Parry, can be reached at telephone number 571-272-8328. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/D.F.D/ Examiner, Art Unit 2451
/Chris Parry/Supervisory Patent Examiner, Art Unit 2451
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