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 .
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
Claims 1-11 are rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor regards as the invention.
As to claims 1 and 7, it is unclear what “cause/causing creation” entails because the claim fails to identify any active steps as part of the causality. In particular, “cause/causing creation” is overly broad and encompasses embodiments where the control server’s lack of action causes creation of a tunnel by another entity. As an example, in the parent case, there were additional steps of monitoring at least one performance characteristic associated with the network segment; and based on determining that the at least one performance characteristic associated with the network segment falls below a threshold, triggering (causing) creation of a logical tunnel. However, in the instant case, there is nothing to trigger (cause) creation of a logical tunnel rendering the claim indefinite.
Dependent claims are rejected for the same reasons.
As to claim 4, there is a lack of proper antecedent basis for “the network resource”.
As to claim 6, the language “configured to cause dismantling” is indefinite for the same reasons as those discussed per claim 1 above. In particular, it is unclear how at least one performance characteristic associated with the network segment causes dismantling and what the control server actually does as part of dismantling.
As to claim 8, the language “causing a second network segment to route” is indefinite because it is unclear what action is actually performed to effectuate network traffic routing.
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 1-11 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-11 of U.S. Patent No. 12,341,683. Although the claims at issue are not identical, they are not patentably distinct from each other because every element of claims 1-11 of the instant application is present in claims 1-11 of the ‘683 Patent while claims 1-11 of the ‘683 Patent have additional features.
Allowable Subject Matter
Claims 1-11 would be allowable if rewritten or amended to overcome the rejections under 35 U.S.C. 112(b) and Double Patenting, set forth in this Office action.
Pertinent Prior Art
Smith et al. (US Patent 9,350,706 B1) is directed to traffic routing in an anycasting environment using a load balancing algorithm (abstract). In particular, Smith discloses a similar architecture of having a first router associated with a first server, a second router associated with a second server (Figs. 1A and 1B), performing a load balancing of data traffic using the logical tunnel 125 from the first router to the second router to the second server (Fig. 2, col. 7 lines 22-51). However, Smith does not expressly teach that one of the routers is local and other router is remote and also that the second server is remote to the network segment. In Smith, in Figure 2, both routers direct traffic to servers 105. Therefore, Smith does not anticipate independent claims.
Conclusion
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/OLEG SURVILLO/Primary Examiner, Art Unit 2457
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