Detailed Action
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
The Office Action is in response to claims filed on 6/20/2025 where claims 1-20 are pending and ready for examination.
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.
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 rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20of U.S. Patent No 11,968, 123. Although the claims at issue are not identical, they are not patentably distinct from each other because the claims from the Instant Application are a broadened version of the claims from U.S. Patent No 11,968, 123. Therefore it would have been obvious to one of ordinary skill in the art to utilize the teachings from U.S. Patent No 11,968, 123 to solve and/or contemplate the features presented in U.S. Patent No 11,968, 123.
Moreover, the Examiner had conducted a side by side analysis of the all claims from the Instant Application as compared to U.S. Patent No 11,968, 123. An example of the side by side analysis is detailed below;
Instant Application 19/245,145
US Patent No. 11,968,123
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As detailed above, the analysis was conducted on all independent and dependent claims. Accordingly the claims are rejected.
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.
Claims 1-2, 6-7, 11-12, and 16-17 are rejected under 35 USC 102(a)(2) as being unpatentable over Coddington (US 11,416,432) in view of Radley (US 2018/0091589)
Regarding claim 1, Coddington discloses a method for allocating a traffic load through a heterogeneous network, the method implemented by a network traffic management system comprising one or more network traffic apparatuses, client devices, or server devices, the method comprising:
extracting a header of each of a plurality of received packets of a traffic flow, wherein each of the headers comprises fields utilized to direct the corresponding one of the received packets through the network (Coddington; Coddington packets of a traffic flow are inherently extracted to support the subsequent application of a hashing function of headers of the packet;
see e.g. Column 6, Lines 63 – 66 “... A network flow is identified by the endpoints which are communicated via the network flow. However the number of specific details and the size of the of the specific details that identify the endpoints depend on the protocol the endpoints are using to communicate.
see e.g. Column 7, Lines 7 – 18 “... a hash is formed over the characterizing identifiers, referred to as a flow hash 1005, The flowhash is a pseudo-random number generated in response to the fields (e.g., a source IP address 1110, a destination IP address 1112, a source port number 1114, a destination port number 1116, in an Ethernet packet 1102, an IP packet 1104, and a TCP packet 1106 ..”
see e.g. Column 7, Lines 7 – 18 “...the fields (e.g., a source IP address 1110, a destination IP address 1112, a source port number 1114, a destination port number 1116, in an Ethernet packet 1102, an IP packet 1104, and a TCP packet 1106 ..”),
executing a hashing function over the fields of each of the extracted headers to generate an index for each corresponding one of the received packets (Coddington;
see e.g. Column 7, Lines 7 – 18 “... a hash is formed over the characterizing identifiers, referred to as a flow hash 1005, The flowhash is a pseudo-random number generated in response to the fields (e.g., a source IP address 1110, a destination IP address 1112, a source port number 1114, a destination port number 1116, in an Ethernet packet 1102, an IP packet 1104, and a TCP packet 1106 ..”
see e.g. Column 33, Line 14 – 17 “... flow hash indexes ... “),
applying a load balancing function to determine one of a plurality of endpoints to send each of the received packets based on one or more endpoint characteristics(Coddington; Coddington teaches load balancing based upon endpoint characteristics comprising capacity;
see e.g. Column 24, Line 43 – Column 25, Line 7 “ ... the system uses the per-node byte rate counter 1120 and the node status and discovery 1152 via the node status messages 1150 ... node storage capacity .. how full the node’s receive buffer is ... If a node is full, or almost full , the load balancer 900 reassigns the buffer for that node to another encapsulation buffer 1016 ...”
see e.g. Claim 1 “... load balancing on the capture stream of packet records ... receiving a node status message from at least one destination node, wherein the node status message includes dynamic information including a level of fullness of a buffer for the at least one destination node, wherein the relevant data window represents a usable storage capacity of the at least one downstream node .. selecting a destination node for each packet record based on the flow hash and the node status message ...”)
mapping the index for each corresponding one of the received packets to the corresponding selected one of the endpoints (Coddington;
see e.g. Column 18, Lines 1 – 8 “A flow hash is computed based on a specific “tuple” of network identifier depending on the protocol of the flow ...The intention is that a one-to-one mapping exists between flow and the flow-hash “
see e.g. Column 27, Lines 48-53 “Fig. 13. Illustrates the process of cold node assignment by the cold node assignment lookup table 1156 ... The flow has 1005 of the incoming record is passed through a mapping function f(n) that maps the packets of the flowhash consistently to a smaller number of bins ...”); and
sending the received packets to each selected endpoint based on the mapping from the load balancing (Coddington;
see e.g. Column 25, Lines 16 “... the record flow has is looked up in the cold node assignment lookup table .. The flow hash 1005 is passed through a function (such as modulus) which uniformly maps the space of the flow hash to a smaller set of bins, each bin being associated with a node number. The number of bins is at least as many as the number of active destination nodes ...”
see e.g. Column 33, Line 44 – 45 “During the packet storage process, the nodes has stored the packets using index based on timestamp and flow hash key ...”)
Although Coddington teaches load balancing associated with capacity of endpoints, Coddington does not address every single type of load balancing technique (“The description need only describe in detail that which is new or not conventional. See Hybritech v. Monoclonal Antibodies, 802 F.2d at 1384, 231 USPQ at 94. This is equally true whether the claimed invention is directed to a product or a process”) and does not address asymmetrical load balancing in association with capacities and therefore does not expressly disclose:
wherein the load balancing function does not evenly divide the plurality of received packets among the plurality of endpoints.
However in analogous art Radley discloses:
wherein the load balancing function does not evenly divide the plurality of received packets among the plurality of endpoints (Radley teaches a load balancing function that uses credit values corresponding to available processing capacity to determine whether a particular node should receive additional work. When a node has exhausted residual credits, or when its total credits are set to zero to indicate insufficient spare processing capacity, the load balancer skip that node and assigns then new flow/work package to another node. Thus, the load balancer directs fewer, including zero, new flows/traffic to a node based on the capacity of that node and therefore does not evenly dive the plurality of received packets among the plurality of endpoints;
Radley’s capacity based distribution of traffic would have led one of ordinary skill in the art to recognize that nodes necessarily possess differing available capacities, thereby meeting the claimed condition of endpoints have smaller capacity than other ones.
Fig. 2 and [0031] of Radley explicitly show a plurality of processing resources (PRs) each having independently tracked residual credits. At a given time, different PRs have different residual credit values (e.g., PR = 0, PR=4, PR=3), where residual credits represent available processing capacity. Radley further disclose skipping PR1 due to zero residual credits while assigning work to PR2. Thus Radley explicitly teaches endpoints having smaller available capacity than other endpoints and directing fewer packets there to.
see e.g. [0031] “In the example of FIG. 2, the next-PR identifier 240 points to PR2 to which the new unit of work should be assigned. Thus, a row 250 for PR1 has been passed over because its residual credits 256 have already been exhausted. The new subscriber 200 will therefore be assigned to PR2. Once the next-PR identifier 240 reaches the end of the list 236, it loops back to the beginning. The ability to skip a PR is useful when the load balancer wants to avoid assignment of further units of work to a particular PR. For example, a total credits value of zero would indicate that the PR is fully loaded (has insufficient spare processing capacity) and is not seeking to receive further new flows (work packages), although it would continue to service flows already assigned to it. In another example, a value of zero could be used by a PR that has been instructed to gracefully spin down once all the current session flows it is handling expire. In the interim, the value of zero would inhibit the PR from being sent any new flows. This ensures that the PRs having a total credits value of zero will be freed up when the workload requirements of the overall system reduce, thereby facilitating true elastic scalability in a VM cloud or server farm. Accordingly, when a PR is to be taken out of service, the load balancer may simply modify the weighted round-robin list 236 to indicate that the particular PR has no spare processing capacity irrespective of its reported processing capacity. In one embodiment, the load balancer changes the value of total or residual credits of the particular PR (e.g., sets it to zero) so as to suppress new-work assignment to the particular PR. In another embodiment, a flag or token is set to indicate the PR should not be assigned new units of work. In yet another embodiment, PRs are instructed to report they seek no new units of work (e.g., report zero total credits)”
Under the broadest reasonable interpretation, “characteristics” encompasses metrics indicative of an endpoints ability to handle additional work, including processing capability, bandwidth, memory, or available resources. Measures such as load or utilization reflect the remaining or available capacity of an endpoint and are therefore reasonably considered capacity based metrics.
Examiner notes that said feature represents a matter of routing design optimization of result effective variable, including optimization of ranges, amounts or proportions consistent with KSR and the legal precedent recognized in MPEP 2144.04 and 2144.05))
Therefore it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate to incorporate Radley’s load balancing scheme. The motivation being the combined solution provides for implementing a known technique resulting in increased efficiencies of load balancing.
Regarding claim 2, Coddington in view of Radley disclose The method as set forth in claim 1 wherein the one of the endpoint characteristics comprises an identified capacity of each of the plurality of endpoints (Per Independent claim 1 endpoint characteristics include capacity of the endpoints).
Regarding claim 6, claim 6 comprises the same and/or similar subject matter as claim 1 and is considered an obvious variation; therefore it is rejected under the same rationale.
Regarding claim 7, claim 7 comprises the same and/or similar subject matter as claim 2 and is considered an obvious variation; therefore it is rejected under the same rationale.
Regarding claim 11, claim 11 comprises the same and/or similar subject matter as claim 1 and is considered an obvious variation; therefore it is rejected under the same rationale.
Regarding claim 12, claim 12 comprises the same and/or similar subject matter as claim 2 and is considered an obvious variation; therefore it is rejected under the same rationale.
Regarding claim 16, claim 16 comprises the same and/or similar subject matter as claim 1 and is considered an obvious variation; therefore it is rejected under the same rationale.
Regarding claim 17, claim 17 comprises the same and/or similar subject matter as claim 2 and is considered an obvious variation; therefore it is rejected under the same rationale.
Claims 3 – 5, 8-10, 13 -15, and 18 – 20 are rejected under 35 USC 103 as being unpatentable over Coddington in view of Radley and in further view of Venkataraman (US 2020/0304477)
Regarding claim 3, Coddington in view of Radley discloses the method as set forth in claim 1, Coddington does not expressly disclose wherein the load balancing function further comprises:
Selecting one of a plurality of intermediate modules based on one or more intermediate characteristics of each of the intermediate modules: and
determining a route to the selected endpoint for each of the plurality of received packets through the selected one of the intermediate modules.
However in analogous art Venkataraman discloses:
Selecting one of a plurality of intermediate modules based on one or more intermediate characteristics of each of the intermediate modules (Venkataraman; Venkataraman teaches within the context of load balancing selecting an intermediated node based on loading characteristics of intermediate node (i.e. intermediate module);
see e.g. [0021] “ ... optimal load balancing ... optimum network capacity utilization...” )
see e.g. [0027] “ ... load balancing algorithm ... each of the said intermediary nodes could be theoretically used – based on the on the load determined to be incumbent thereon – to establish a first hop for the said data packet from the source endpoint device in the direction of the destination endpoint device”) : and
determining a route to the selected endpoint for each of the plurality of received packets through the selected one of the intermediate modules (Venkataraman; The selection of the particular intermediate node inherently determines how the network traffic is routed via various hops;
see e.g. [0027] “ ... load balancing algorithm ... each of the said intermediary nodes could be theoretically used – based on the on the load determined to be incumbent thereon – to establish a first hop for the said data packet from the source endpoint device in the direction of the destination endpoint device;
see .e.g [0086] “... a Routing Information Base (RIB) or a routing table ... intermediate node ...”
see e.g. Abstract “The next hop keys are used to encrypt the inner header during the hip to hop communication from one intermediary node to another along the incrementally constructing path connecting the source endpoint device with the destination device ...”
see e.g. [0020] “... determines a data path to be used for transmitting a (particular) data packet ...”
see e.g. [0029] “... traverses at least one intermediary node situated therebetween, with the intermediary node either directly forwarding the data packet to the destination endpoint device or at least in the direction of the endpoint device via a combination of other intermediary n does identified as constituting a data path to the destination ...”
The Examiner notes the technique presented above is readily available to applied to a plurality of technological environments (MPEP 2141.01(a)) comprising packet processors with corresponding ingress and egress ports which have characteristics consisting of load, capacity, and utilization)
Therefore it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate Venkataraman’s scheme. The motivation being the combined solution provides for optimizing network traffic efficiencies via intermediate nodes, servers, modules, and packet processor, units and/or modules implanted via conventional silicon technology.
Therefore it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate to incorporate Radley’s load balancing scheme. The motivation being the combined solution provides for implementing a known technique resulting in increased efficiencies of load balancing.
Regarding claim 4, Coddington in view of Radley and in further view of Venkataraman disclose the method as set forth in claim 3, one or more of the intermediated characteristics comprises a capacity of each of the intermediate modules ((The combined solution per Venkataraman provides for selection criteria based on load which may be equivalent and/or extrapolated to a generic capacity and/or utilization within the technological environment (i.e. network capacity, storage capacity, memory capacity, bandwidth utilization, etc..) ;
see e.g. [0027] “ ... load balancing algorithm ... each of the said intermediary nodes could be theoretically used – based on the on the load determined to be incumbent thereon – to establish a first hop for the said data packet from the source endpoint device in the direction of the destination endpoint device”
see e.g. [0021] “... load balancing principles ... ensures optimum network security as well as optimum network capacity utilization” )
The combined solution per Radley’s utilization of capacity is readily available to be applied at intermediated modules)
Therefore it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate to incorporate Radley’s load balancing scheme. The motivation being the combined solution provides for implementing a known technique resulting in increased efficiencies of load balancing.
Regarding claim 5, Coddington in view of Radley and in further view of Venkataraman disclose the method as set forth in claim 3, wherein the load balancing function does not evenly divide the received packets among the plurality of intermediate modules (The combined solution per Venkataraman provides for random approach to load balance the packets resulting in not evenly dividing the received packets among the plurality of intermediate module;
see e.g. [0021] “... optimal load balancing principles whiles randomizing the data paths traversed by data packets ...”
see e.g. [0028] “ ... the intermediate node ... is selected, at random, albeit form the group of intermediate nodes ...”)
Therefore it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate Venkataraman’s scheme. The motivation being the combined solution provides for optimizing network traffic efficiencies via intermediate nodes, servers, modules, and packet processor, units and/or modules implanted via conventional silicon technology
Therefore it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate to incorporate Radley’s load balancing scheme. The motivation being the combined solution provides for implementing a known technique resulting in increased efficiencies of load balancing.
Regarding claim 8, claim 8 comprises the same and/or similar subject matter as claim 3 and is considered an obvious variation; therefore it is rejected under the same rationale.
Regarding claim 9, claim 9 comprises the same and/or similar subject matter as claim 4 and is considered an obvious variation; therefore it is rejected under the same rationale.
Regarding claim 10, claim 10 comprises the same and/or similar subject matter as claim 5 and is considered an obvious variation; therefore it is rejected under the same rationale.
Regarding claim 13, claim 13 comprises the same and/or similar subject matter as claim 3 and is considered an obvious variation; therefore it is rejected under the same rationale.
Regarding claim 14, claim 14 comprises the same and/or similar subject matter as claim 4 and is considered an obvious variation; therefore it is rejected under the same rationale.
Regarding claim 15, claim 15 comprises the same and/or similar subject matter as claim 5 and is considered an obvious variation; therefore it is rejected under the same rationale.
Regarding claim 18, claim 18 comprises the same and/or similar subject matter as claim 3 and is considered an obvious variation; therefore it is rejected under the same rationale.
Regarding claim 19, claim 19 comprises the same and/or similar subject matter as claim 4 and is considered an obvious variation; therefore it is rejected under the same rationale.
Regarding claim 20, claim 20 comprises the same and/or similar subject matter as claim 5 and is considered an obvious variation; therefore it is rejected under the same rationale.
Any inquiry concerning this communication or earlier communications from the Examiner should be directed to TODD L. BARKER whose telephone number is (571) 270 0257. The Examiner can normally be reached on Monday through Friday, 7:30am to 5:00pm.
If attempts to reach the Examiner by telephone are unsuccessful, the Examiner's supervisor Vivek Srivastava can be reached on (571) 272 7304.
/TODD L BARKER/Primary Examiner, Art Unit 2449
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