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 . 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 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 claim 1-20 of U.S. Patent No. 12,182,446. Although the claims at issue are not identical, they are not patentably distinct from each other as demonstrated by the example mapping below:
Application
Patent No. 12182446
(Claim 1) A method comprising: passing, by a container storage interface (CSI) filter driver, requests received at a node of a cluster to a CSI driver associated with a storage system, the requests comprising requests for the CSI driver to perform control plane operations with respect to the storage system,
(Claim 1) A method comprising: passing, by a container storage interface (CSI) filter driver, requests received by way of a node agent to a CSI driver associated with a storage system, the requests comprising requests for the CSI driver to perform control plane operations with respect to the storage system,
(Claim 1) wherein the CSI filter driver and the CSI driver all execute on the node, and
(Claim 1) wherein the node agent, the CSI filter driver, and the CSI driver all execute on a node, and
(Claim 12) cluster is managed by a container orchestrator
(Claim 1) cluster managed by a container orchestrator
(Claim 1) wherein the storage system is configured to store data associated with one or more containerized applications executing on the node;
(Claim 1) wherein the storage system is configured to store data associated with one or more containerized applications executing on the node;
(Claim 2) one or more attributes of the requests; (Claim 1) attributes associated with the control plane operations
(Claim 1) identifying, by the CSI filter driver based on the requests, attributes associated with the control plane operations;
(Claim 1) determining, by the CSI filter driver based on attributes associated with the control plane operations, a usage profile associated with the storage system,
(Claim 1) determining, by the CSI filter driver based on the attributes, a usage profile associated with the storage system
(Claim 1) the usage profile representative of how the storage system is used in connection with the one or more containerized applications; and
(Claim 1) the usage profile representative of how the storage system is used in connection with the one or more containerized applications; and
(Claim 1) performing, by the CSI filter driver based on the usage profile, an optimization operation with respect to how the storage system is used in connection with the one or more containerized applications.
(Claim 1) performing, by the CSI filter driver based on the usage profile, an optimization operation with respect to how the storage system is used in connection with the one or more containerized applications.
Allowable Subject Matter
A terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome a rejection based on nonstatutory double patenting; accordingly, claims 1-20 are rejected but would be allowable if a compliant terminal disclaimer is properly filed and approved.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. The US Patent No. 10572294 of Chawda et al. is pertinent to containerized applications and filter capabilities. The US Pub. No. 2022/0321566 of Coyle et al. is pertinent to containerized applications and node cluster configurations.
The examiner has cited particular column, line, and/or paragraph numbers in the references as applied to the claims above for the convenience of the applicant. Although the specified citations are representative of the teachings of the art and are applied to the specific limitations within the individual claim, other passages and figures may apply as well. It is respectfully requested from the applicant in preparing responses, to fully consider the references in its entirety as potentially teaching of all or part of the claimed invention, as well as the context of the passage as taught by the prior art or disclosed by the examiner.
The examiner requests, in response to this office action, support be shown for language added to any original claims on amendment and any new claims. That is, indicate support for newly added claim language by specifically pointing to page(s) and line number(s) in the specification and/or drawing figure(s). This will assist the examiner in prosecuting the application. When responding to this office action, applicant is advised to clearly point out the patentable novelty which he or she thinks the claims present, in view of the state of art disclosed by the references cited or the objections made. He or she must also show how the amendments avoid such references or objections. See 37 C.F.R. 1.111(c).
The applicant should use this period for response to thoroughly and very closely proof read and review the whole of the application for correct correlation between reference numerals in the textual portion of the Specification and Drawings along with any minor spelling errors, general typographical errors, accuracy, assurance of proper use for Trademarks ™, and other legal symbols ®, where required, an Abstract on a clean page (i.e., no Titles, Attorney information, line numbers, page numbers, exc... (37 CFR 1.72(b)) just a heading “ABSTRACT” and a paragraph less than 150 words), and clarity of meaning in the Specification, Drawings, and specifically the claims (i.e., provide proper antecedent basis for “the” and “said” within each claim) with each claim increasing in numerical order and ending in a period {if amended}. Minor typographical errors could render a Patent unenforceable and so the applicant is strongly encouraged to aid in this endeavor.
Applicants seeking an interview with the examiner, including WebEx Video Conferencing, are encouraged to fill out the online Automated Interview Request (AIR) form (http://www.uspto.gov/patent/uspto-automated-interview-request-air-form.html). See MPEP §502.03, §713.01(11) and Interview Practice for additional details.
Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ERIC T OBERLY whose telephone number is (571)272-6991. The examiner can normally be reached on M-F 800am-430pm (MT).
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Dr. Henry Tsai can be reached on (571) 272-4176. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of an application may be obtained from the Patent Center. For more information about the Patent Center, see https://patentcenter.uspto.gov/. Should you have questions on access to the Patent Center system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/ERIC T OBERLY/ Primary Examiner, Art Unit 2184
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