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 Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1, 11-13, and 21 are rejected under 35 U.S.C. 102(a)(1) as being anticipated Allen et al. US 2005/0138461 (hereinafter “Allen”).
Regarding claim 1, Allen teaches: A system comprising: a plurality of transaction processing servers coupled with each other via an electronic communications network, each of the plurality of transaction processing servers configured to: [FIG. 1: primary server 62 and backup server 70]
establish, upon initialization, which one of the plurality of transaction processing servers is designated as a primary instance, each of others of the plurality of transaction processing servers not designated as the primary instance; and [0021: “the client is connected to a primary server coupled to a backup server in a normal state, during which the primary server processes messages from the client and maintains a transaction log respective to each message in random access memory.” The client is connected to a primary and backup server]
receive an incoming request for a transaction, [0021: “the client is connected to a primary server coupled to a backup server in a normal state, during which the primary server processes messages from the client and maintains a transaction log respective to each message in random access memory.” The primary server processes incoming messages]
process the incoming request to identify a previously received request for a transaction counter thereto in an attempt to satisfy one or both of the incoming request and the previously received request, and [0021: “Meanwhile, the backup server is operable to maintain a mirror image of the transaction log and the transaction logs are periodically flushed to a non-volatile storage device respective to each and server.” The backup server maintains a mirror image of all transactions in a log.]
generate a result indicative thereof, the transaction processing server designated as the primary instance at least commencing processing of the incoming request prior to those transaction processing servers not designated as the primary instance, [0021: “the client is connected to a primary server coupled to a backup server in a normal state, during which the primary server processes messages from the client and maintains a transaction log respective to each message in random access memory.” The primary server processes transactions and the backup server maintains a mirror image of what the primary server processes.]
wherein the system further comprises a plurality of fault tolerance processors, each coupled with one of the plurality of transaction processing servers and configured to determine whether a failure has occurred in the transaction processing server designated as the primary instance, and [0021: “When the primary server is unavailable, on the other hand, the client is only connected to the backup server, during which said backup server initially recovers a last-known state of said primary server and then processes messages from said client and maintains said backup server transaction log respective to each said message in random access memory.” When the primary server is unavailable the backup server processes messages for the client.]
subsequent thereto, cause one of the others of the plurality of transaction processing servers not designated as the primary instance to be designated as the primary instance. [0021: “When the primary server is unavailable, on the other hand, the client is only connected to the backup server, during which said backup server initially recovers a last-known state of said primary server and then processes messages from said client and maintains said backup server transaction log respective to each said message in random access memory.” The backup server acts as the primary server while the primary server is unavailable.]
Regarding claim 2, Allen teaches: The system of claim 1, wherein those transaction processing servers not designated as the primary instance receive the incoming request from the transaction processing server designated as the primary instance. [0021: “Meanwhile, the backup server is operable to maintain a mirror image of the transaction log and the transaction logs are periodically flushed to a non-volatile storage device respective to each and server.” The backup server maintains a mirror image of all transactions in a log.]
Regarding claim 3, Allen teaches: The system of claim 1, wherein only the transaction processing server designated as the primary instance is configured to transmit a data message indicative of the generated result of an attempt to satisfy one or both of the incoming request and the previously received request to a recipient external to the system. [0021: “the primary server transaction log is flushed to the primary server non-volatile storage device after each message is processed.” The non-volatile storage device 66 is external to the primary server 62. See FIG. 1.]
Claims 11-13 are rejected based on the same citations and rationale given to claims 1-3.
Claim 21 is rejected based on the same citations and rationale given to claim 1.
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 4 and 14 are rejected under 35 U.S.C. 103 as being unpatentable over Allen in view of Matena et al. US 2004/0158549 (hereinafter “Matena”).
Regarding claim 4, Allen teaches: The system of claim 1, wherein one or more of the plurality of transaction processing servers is located in a region different from a location of one or more others of the plurality of transaction processing servers. [FIG. 1: primary server 62 and backup server 70. The servers are separate and therefore are located in different regions.]
Allen does not expressively disclose servers located in a different geographic region. But does suggest “systems with servers and geographically distributed clients.” Allen at 0010.
Matena teaches: geographic regions [FIG. 1 and 0002: “systems are geographically distributed, heterogeneous (they involve equipment from many different vendors), continuously available (there is no scheduled down-time), and have stringent response time requirements."]
Therefore, it would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to have combined Allen’s primary and backup server that are located in different regions with Matena’s transaction processing system that is geographically distributed, thereby devising a primary and backup server that are located in different geographical regions. One would have been motivated to have combined the prior arts because Allen suggests that client systems can be geographically distributed while also teaching separate servers located in different regions. Matena’s transaction processing system is analogous to Allen’s server system and expressively teaches servers being located in different geographic regions.
Claim 14 is rejected based on the same citations and rationale given to claim 4.
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, and 20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 20, and 38 of U.S. Patent No. 12,487,894. Although the claims at issue are not identical, they are not patentably distinct from each other because the claims in the application are broader than the claims of the patent.
Allowable Subject Matter
Claims 5-10 and 15-20 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Conclusion
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/JONATHAN D GIBSON/Primary Examiner, Art Unit 2113
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