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 .
DETAILED ACTION
This non-final office action is responsive to the U.S. patent application no. 19/247,984 filed on June 24, 2025.
Claims 1-20 are pending.
Claims 1-20 are rejected.
Priority
The application claims priority under 35 U.S.C. 120 to U.S. non-provisional application no. 18/335,658 filed on June 15, 2023, now patent no. 12/341,671, which claims priority under 35 U.S.C. 120 to U.S. non-provisional application no. 17/452,936 filed on October 29, 2021, now abandoned, and which claims priority under 35 U.S.C. 120 to the U.S. non-provisional application no. 17/172,101 filed on February 10, 2021, now patent no. 11,165,676, which claims foreign priority under 35 U.S.C. 119(a)-(d) to foreign application No. IN202041049307 filed in India on November 11, 2020.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on July 29, 2025 is compliant with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement has been considered by the examiner.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
Claims 4, 11 and 18 are rejected under 35 U.S.C. 112(a) as failing to comply with the enablement requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to enable one skilled in the art to which it pertains, or with which it is most nearly connected, to make and/or use the invention.
The application specification does not disclose the claim element
“a flow profile agent”,
neither the limitations
“the hypervisor comprises a flow profile agent”,
“collecting, by the flow profile agent in the hypervisor, flow information”, and
“generating by the flow profile agent in the hypervisor and from the flow information, the first flow profile.”
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, 8 and 15 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 12,341,671. Although the claims at issue are not identical, they are not patentably distinct from each other as shown below.
Application No. 19/247,984
Patent No. 12,341,671
1. A method for migration of a flow profile of a first computing entity, comprising:
receiving, at a first host, a first flow profile of the first computing entity, the first flow profile based on first one or more flow measurement values for first one or more flows exchanged between the computing entity and a second computing entity while the first computing entity is running on a second host;
receiving, at the first host, the first computing entity migrated from the second host;
identifying, at the first host, second one or more flow measurement values for the second one or more flows exchanged between the first computing entity and the second computing entity while the first computing entity is running on the first host; and
updating the first flow profile based on the second one or more flow measurement values.
1. A method for migration of a flow profile of a computing entity, comprising:
receiving, at a first host, a first flow profile of the computing entity, the first flow profile based on first one or more flow measurement values for first one or more flows exchanged between the computing entity and a service while the computing entity is running on a second host;
receiving, at the first host, the computing entity migrated from the second host;
utilizing, at the first host, the first flow profile to reduce a flow rate for at least one of a second one or more flows;
identifying, at the first host, second one or more flow measurement values for the second one or more flows exchanged between the computing entity and the service while the computing entity is running on the first host; and
updating the first flow profile based on the second one or more flow measurement values.
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)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1, 7, 8, 14, 15 are rejected under 35 U.S.C. 102(a)(2) as being unpatentable over Beloglazov et al. (U.S. 2015/0039764).
Regarding claim 1, Beloglazov disclosed a method for migration of a flow profile of a computing entity, comprising:
receiving, at a first host, a first flow profile of the first computing entity, the first flow profile based on first one or more flow measurement values for first one or more flows exchanged between the computing entity and a second computing entity while the first computing entity is running on a second host (Beloglazov, Fig. 8, Fig. 11, step 1101 and [0188], “At the beginning of each iteration the local manager reads (1101) from the local storage 84 the historical data on the resource usage by the VMs and hypervisor stored by the data collector 86.” Said “resource usage” anticipates “first flow profile” in the claim. Beloglazov also disclosed in [0188] that “the local manager component 83 is deployed on every compute host as an OS service running in the background,” therefore the compute host in Beloglazov anticipates the first host and the second host. Please see paragraph [0198] for disclosure on how the resource data stored in the central database is retrieved and used by the compute hosts and local managers.);
receiving, at the first host, the first computing entity migrated from the second host (Beloglazov, Fig. 1, [0042, 0198, 0284] disclosed that a selected list of VMs is migrated to a destination compute host, which is equivalent to the first host here. Beloglazov’s source host anticipates the second host in the claim);
identifying, at the first host, second one or more flow measurement values for the second one or more flows exchanged between the first computing entity and the second computing entity while the first computing entity is running on the first host (Beloglazov, Fig. 8, Fig. 11, step 1101 and [0188], “read resource usage data from the local storage”); and
updating the first flow profile based on the second one or more flow measurement values (Beloglazov, Fig. 1 and [0041], “The resource utilization monitor 7 collects the data on the resource utilization of VMs 8 instantiated on a compute host 9 and passes these data to the local consolidation manager 6.” Such an ongoing monitoring process anticipates the updating step in the claim).
Claim 8 lists substantially the same elements as claim 1, in computer readable medium form rather than method form. Therefore, the rejection rationale for claim 1 applies equally as well to claim 9.
Claim 15 lists substantially the same elements as claim 1, in computer system form rather than method form. Therefore, the rejection rationale for claim 1 applies equally as well to claim 17.
Regarding claims 7 and 14, Beloglazov disclosed the subject matter of claims 1 and 8, respectively. Beloglazov further disclosed
wherein the first computing entity comprises one of a virtual computing instance (VCI), a physical computing device, or a plurality of VCIs (Beloglazov, [0161], “VM instances”).
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 of this title, 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 2-6, 9-13 and 16-20 are rejected under 35 U.S.C. 103 as obvious over Beloglazov et al. as applied to claims 1, 8 and 15 above, further in view of Lakshmikantha et al. (U.S. 2019/0286469).
Regarding claims 2, 9 and 16, Beloglazov disclosed the subject matter of claims 1, 8 and 15, respectively. Beloglazov might not have explicitly disclosed but Lakshmikantha further disclosed
executing, by the second host, a virtualization layer that abstracts processor, memory, storage, and networking resources of a hardware platform of the second host for a plurality of workload virtual computing instances (Lakshmikantha disclosed in Figs. 1A, 1B and para. [0035] the virtualization layer (VL) 104A that is formed by network devices ND 101A, 101B, 101C which are physical devices as disclosed by Lakshmikantha in Fig. 4A and paras. [0083-0085]).
One of ordinary skill in the art would have been motivated to combine Beloglazov and Lakshmikintha before the effective filing date of the claimed invention because both references disclosed systems and methods for migrating virtual machines from a first computing host to a second computing host in the cloud data center (Beloglazov, abstract, Fig. 1 and [0012], “determining when a physical server is considered to be overloaded so that some of the virtual machines are migrated from the overloaded physical server to other physical servers”; Lakshmikantha, Abstract and Fig. 1, “a software-defined networking (SDN) controller communicatively coupled with a cloud orchestrator enables live migration of a virtual machine from a first network device to a second network device”).
Therefore it would have been obvious to combine Lakshmikantha’s explicit disclosure about the virtualization layer in cloud computing and data center architecture with Beloglazov’s more general disclosure about cloud computing to know that the cloud in Beloglazov also inherently executes a virtualization layer over the physical hosts/devices.
Regarding claims 3, 10, and 17, Beloglazov and Lakshmikantha disclosed the subject matter of claims 2, 9 and 16, respectively. Beloglazov further disclosed
wherein, while the first computing entity is running on the second host, the plurality of workload virtual computing instances comprises the first computing entity (Beloglazov disclosed in Fig. 1 that virtual machines VM 8 runs on compute hosts 1-N; Beloglazov further disclosed in [0039, 0040, 0267, 0299] that multiple VMs can be instantiated on a compute host as long as the resource needs of the VMs such as RAM needs are met by the compute host.).
Regarding claims 4, 11, and 18, Beloglazov and Lakshmikantha disclosed the subject matter of claims 3, 10 and 17, respectively. Beloglazov and Lakshmikantha further disclosed
wherein: the virtualization layer comprises a hypervisor (Lakshmikantha, [0035], “The VM 102A runs on top of a virtualization layer 104A (e.g., a hypervisor)”); the hypervisor comprises a flow profile agent (Beloglazov, [0164], “Data collector 86 - a component that is deployed on every compute host 72 and is responsible for collecting data on the resource usage by VM instances and hypervisors”); and the method further comprises:
collecting, by the flow profile agent in the hypervisor, flow information (Beloglazov, [0041, 0164]); and
generating by the flow profile agent in the hypervisor and from the flow information, the first flow profile (Beloglazov, Figs. 8, 11 and [0041, 0188-0190], “The resource utilization monitor 7 collects the data on the resource utilization of VMs 8 instantiated on a compute host 9”).
The rationale for combining Beloglazov and Lakshmikantha is the same as that provided in the rejection of claims 2, 9 and 16 above.
Regarding claims 5, 12, and 19, Beloglazov and Lakshmikantha disclosed the subject matter of claims 2, 9 and 16, respectively. Lakshmikantha further disclosed
wherein: the virtualization layer is one of a plurality of virtualization layers (Lakshmikantha disclosed in Figs. 1A and 1B a plurality of virtualization layers (VL) 104, each running on a network device 101); and
the plurality of virtualization layers implement a logical overlay network on a physical underlay network (Lakshmikantha, Figs. 4A, 4D and [0096, 1015], “A virtual network can be implemented as an overlay network (sometimes referred to as a network virtualization overlay) that provides network services (e.g., layer 2 (L2, data link layer) and/or layer 3 (L3, network layer) services) over an underlay network (e.g., an L3 network, such as an Internet Protocol (IP) network that uses tunnels (e.g., generic routing encapsulation (GRE), layer 2 tunneling protocol (L2TP), IPSec) to create the overlay network”).
The rationale for combining Beloglazov and Lakshmikantha is the same as that provided in the rejection of claims 2, 9 and 16 above.
Regarding claims 6, 13, and 20, Beloglazov and Lakshmikantha disclosed the subject matter of claims 5, 12, and 19, respectively. Lakshmikantha further disclosed
wherein the virtualization layer executes a forwarding element for the plurality of computing entities (Lakshmikantha, Fig. 1A, “forwarding plane 102”).
The rationale for combining Beloglazov and Lakshmikantha is the same as that provided in the rejection of claims 2, 9 and 16 above.
Related Prior Art
Brandwine et al. (US 9,104,458) is directed to a network data transmission analysis system that uses contextual information in the execution of virtual machine instances to isolate and migrate virtual machine instances onto physical computing devices.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SHIRLEY X ZHANG whose telephone number is (571)270-5012. The examiner can normally be reached on 8:30am - 5:00pm.
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/SHIRLEY X ZHANG/Primary Examiner, Art Unit 2442
