Non-Final Office 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 § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 8-13 are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter. The claim(s) does/do not fall within at least one of the four categories of patent eligible subject matter because the claims do not recite a process nor a composition of matter. The claims do not recite a machine because the virtual storage system of claim 8 comprises: a processing resource which is described in para. [0036] of the specification as a virtual computer system; and instructions. The claims do not recite a manufacture because the virtual storage system comprises: a processing resource which is described in para. [0036] of the specification as a virtual computer system; and instructions. A virtual computer system and instructions do not have a physical or tangible form.
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.
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Claims 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 2, 5-8, 11, 12, 14, 15, and 18-20 of U.S. Patent No. 12,267,105 B2 (on IDS and hereinafter ‘105). Although the claims at issue are not identical, they are not patentably distinct from each other because claims 1, 2, 5-8, 11, 12, 14, 15, and 18-20 of U.S. Patent No. 12,267,105 B2 contain(s) every element of claim(s) 1-20 of the instant application and as such anticipate(s) claim(s) 1-20 of the instant application.
The following is a mapping of the claims:
Referring to claim 1:
Claim 1 of ‘105 discloses a method comprising: maintaining, by a virtual storage system, an operation log within a virtual non-volatile random access memory (vNVRAM) of a host on which a compute instance in which the virtual storage system is operating (an operation log maintained by the virtual storage system within a local memory of a host on which the compute instance is running. A local memory is defined by ‘105 as vNVRAM memory—see col. 9, lines 51-53).
Claim 1 of ‘105 discloses after receiving an indication regarding an imminent shutdown or reboot of the compute instance, flushing, by the virtual storage system, the operation log to both ephemeral storage and persistent storage (after receiving an event indicative of an imminent shutdown or reboot of a compute instance of a cloud environment in which a virtual storage system is operating, flushing, by the virtual storage system, an operation log maintained by the virtual storage system within a local memory of a host on which the compute instance is running to both ephemeral storage associated with the compute instance and persistent storage).
The limitation reducing potential data-loss scenarios is a result of the method of claim 1 of ‘105.
Referring to claim 2:
Claim 1 of ‘105 discloses during boot processing of the virtual storage system subsequent to the flushing, facilitating replay of the operation log by: determining whether the virtual storage system has been rehosted (during subsequent boot processing of the virtual storage system, facilitating replay of the operation log by: determining whether the virtual storage system has been rehosted).
Claim 1 of ‘105 discloses after an affirmative determination that the virtual storage system has been rehosted, loading the operation log from the persistent storage (responsive to an affirmative determination that the virtual storage system has been rehosted, loading the operation log from the persistent storage).
Claim 1 of ‘105 discloses and after a negative determination that the virtual storage system has been rehosted, loading the operation log from the ephemeral storage (and responsive to a negative determination that the virtual storage system has been rehosted, loading the operation log from the ephemeral storage).
Claim 3 is anticipated by claim 2 of ‘105.
Claim 4 is anticipated by claim 5 of ‘105.
Referring to claim 5, claim 1 of ‘105 discloses an ephemeral storage and in col. 9, lines 33-39, ‘105 defines ephemeral storage comprises a directed-attached solid-state drive (SSD) (Ephemeral storage may represent direct-attached-storage (DAS) to host 200 in the form of one or more internal (e.g., ephemeral storage 255a) and/or external (e.g., ephemeral storage 255b) storage devices, such as HDDs and/or SSDs, to host 200. In the context of the present example, ephemeral storage is directly attached to host 200 through a physical host interface (e.g., SCSI, SATA, or SAS)).
Claim 6 is anticipated by claim 6 of ‘105.
Claim 7 is anticipated by claim 7 of ‘105.
Referring to claim 8:
Claim 8 of ‘105 discloses a virtual storage system comprising: one or more processing resources; and instructions that when executed by the one or more processing resources cause the virtual storage system to (A virtual storage system comprising: one or more hardware processors or one or more cores thereof; and instructions that when executed by the one or more hardware processors or one or more cores thereof cause the virtual storage system to).
Claim 8 of ‘105 discloses maintain an operation log within a virtual non-volatile random access memory (vNVRAM) of a host on which a compute instance in which the virtual storage system is operating (an operation log maintained by the virtual storage system within a local memory of a host on which the compute instance is running. A local memory is defined by ‘105 as vNVRAM memory—see col. 9, lines 51-53)
Claim 8 of ‘105 discloses after receiving an indication regarding an imminent shutdown or reboot of the compute instance, flushing the operation log to both ephemeral storage and persistent storage (after receiving an event indicative of an imminent shutdown or reboot of a compute instance of a cloud environment in which a virtual storage system is operating, flush an operation log maintained by the virtual storage system within a local memory of a host on which the compute instance is running to both ephemeral storage associated with the compute instance and persistent storage).
The limitation reduce potential data-loss scenarios is a result of the virtual storage system of claim 8 of ‘105.
Referring to claim 9:
Claim 8 of ‘105 discloses wherein the instructions further cause the virtual storage system to: during boot processing of the virtual storage system subsequent to the flushing, facilitating replay of the operation log by: determining whether the virtual storage system has been rehosted (during subsequent boot processing of the virtual storage system, facilitate replay of the operation log by: determining whether the virtual storage system has been rehosted).
Claim 8 of ‘105 discloses after an affirmative determination that the virtual storage system has been rehosted, loading the operation log from the persistent storage (responsive to an affirmative determination that the virtual storage system has been rehosted, loading the operation log from the persistent storage).
Claim 8 of ‘105 discloses and after a negative determination that the virtual storage system has been rehosted, loading the operation log from the ephemeral storage (and responsive to a negative determination that the virtual storage system has been rehosted, loading the operation log from the ephemeral storage).
Referring to claim 10:
Claim 14 of ‘105 discloses a virtual storage system comprising: one or more processing resources; and instructions that when executed by the one or more processing resources cause the virtual storage system to (A non-transitory machine readable medium storing instructions, which when executed by a processing resource of a virtual storage system deployed within a compute instance of a cloud environment, cause the virtual storage system to).
Claim 14 of ‘105 discloses maintain an operation log within a virtual non-volatile random access memory (vNVRAM) of a host on which a compute instance in which the virtual storage system is operating (an operation log maintained by the virtual storage system within a local memory of a host on which the compute instance is running. A local memory is defined by ‘105 as vNVRAM memory—see col. 9, lines 51-53)
Claim 14 of ‘105 discloses after receiving an indication regarding an imminent shutdown or reboot of the compute instance, flushing the operation log to both ephemeral storage and persistent storage (after receiving an event indicative of an imminent shutdown or reboot of a compute instance of a cloud environment in which a virtual storage system is operating, flush an operation log maintained by the virtual storage system within a local memory of a host on which the compute instance is running to both ephemeral storage associated with the compute instance and persistent storage).
The limitation reduce potential data-loss scenarios is a result of the instructions of claim 14 of ‘105.
Claim 14 of ‘105 discloses wherein the instructions further cause the virtual storage system to: during boot processing of the virtual storage system subsequent to the flushing, facilitating replay of the operation log by: determining whether the virtual storage system has been rehosted (during subsequent boot processing of the virtual storage system, facilitate replay of the operation log by: determining whether the virtual storage system has been rehosted).
Claim 14 of ‘105 discloses after an affirmative determination that the virtual storage system has been rehosted, loading the operation log from the persistent storage (responsive to an affirmative determination that the virtual storage system has been rehosted, loading the operation log from the persistent storage).
Claim 14 of ‘105 discloses and after a negative determination that the virtual storage system has been rehosted, loading the operation log from the ephemeral storage (and responsive to a negative determination that the virtual storage system has been rehosted, loading the operation log from the ephemeral storage).
Claim 15 of ‘105 discloses wherein determination regarding whether the virtual storage system has been rehosted is based on a unique identifier associated with the ephemeral storage.
Claim 11 is anticipated by claim 11 of ‘105.
Referring to claim 12, claim 8 of ‘105 discloses an ephemeral storage and in col. 9, lines 33-39, ‘105 defines ephemeral storage comprises a directed-attached solid-state drive (SSD) (Ephemeral storage may represent direct-attached-storage (DAS) to host 200 in the form of one or more internal (e.g., ephemeral storage 255a) and/or external (e.g., ephemeral storage 255b) storage devices, such as HDDs and/or SSDs, to host 200. In the context of the present example, ephemeral storage is directly attached to host 200 through a physical host interface (e.g., SCSI, SATA, or SAS)).
Claim 13 is anticipated by claim 12 of ‘105.
Referring to claim 14:
Claim 14 of ‘105 discloses a non-transitory machine readable medium storing instructions, which when executed by one or more processing resources of a virtual storage system deployed within a compute instance of a cloud environment, cause the virtual storage system to (A non-transitory machine readable medium storing instructions, which when executed by a processing resource of a virtual storage system deployed within a compute instance of a cloud environment, cause the virtual storage system to).
Claim 14 of ‘105 discloses maintain an operation log within a virtual non-volatile random access memory (vNVRAM) of a host on which a compute instance in which the virtual storage system is operating (an operation log maintained by the virtual storage system within a local memory of a host on which the compute instance is running. A local memory is defined by ‘105 as vNVRAM memory—see col. 9, lines 51-53)
Claim 14 of ‘105 discloses after receiving an indication regarding an imminent shutdown or reboot of the compute instance, flushing the operation log to both ephemeral storage and persistent storage (after receiving an event indicative of an imminent shutdown or reboot of a compute instance of a cloud environment in which a virtual storage system is operating, flush an operation log maintained by the virtual storage system within a local memory of a host on which the compute instance is running to both ephemeral storage associated with the compute instance and persistent storage).
The limitation reduce potential data-loss scenarios is a result of the instructions of claim 14 of ‘105.
Referring to claim 15
Claim 14 of ‘105 discloses wherein the instructions further cause the virtual storage system to: during boot processing of the virtual storage system subsequent to the flushing, facilitating replay of the operation log by: determining whether the virtual storage system has been rehosted (during subsequent boot processing of the virtual storage system, facilitate replay of the operation log by: determining whether the virtual storage system has been rehosted).
Claim 14 of ‘105 discloses after an affirmative determination that the virtual storage system has been rehosted, loading the operation log from the persistent storage (responsive to an affirmative determination that the virtual storage system has been rehosted, loading the operation log from the persistent storage).
Claim 14 of ‘105 discloses and after a negative determination that the virtual storage system has been rehosted, loading the operation log from the ephemeral storage (and responsive to a negative determination that the virtual storage system has been rehosted, loading the operation log from the ephemeral storage).
Claim 16 is anticipated by claim 15 of ‘105.
Claim 17 is anticipated by claim 18 of ‘105.
Referring to claim 18, claim 14 of ‘105 discloses an ephemeral storage and in col. 9, lines 33-39, ‘105 defines ephemeral storage comprises a directed-attached solid-state drive (SSD) (Ephemeral storage may represent direct-attached-storage (DAS) to host 200 in the form of one or more internal (e.g., ephemeral storage 255a) and/or external (e.g., ephemeral storage 255b) storage devices, such as HDDs and/or SSDs, to host 200. In the context of the present example, ephemeral storage is directly attached to host 200 through a physical host interface (e.g., SCSI, SATA, or SAS)).
Claim 19 is anticipated by claim 19 of ‘105.
Claim 20 is anticipated by claim 20 of ‘105.
“A later patent claim is not patentably distinct from an earlier patent claim if the later claim is obvious over, or anticipated by, the earlier claim. In re Longi, 759 F.2d at 896, 225 USPQ at 651 (affirming a holding of obviousness-type double patenting because the claims at issue were obvious over claims in four prior art patents); In re Berg, 140 F.3d at 1437, 46 USPQ2d at 1233 (Fed. Cir. 1998) (affirming a holding of obviousness-type double patenting where a patent application claim to a genus is anticipated by a patent claim to a species within that genus). “ ELI LILLY AND COMPANY v BARR LABORATORIES, INC., United States Court of Appeals for the Federal Circuit, ON PETITION FOR REHEARING EN BANC (DECIDED: May 30, 2001).
Allowable Subject Matter
Claims 1-20 would be allowable if the non-statutory double patenting rejection was overcome.
The following is a statement of reasons for the indication of allowable subject matter.
US 9,684,532 B2 (on IDS) discloses caching virtual machine reboot information so that the virtual machine may be rebooted in a relatively shorter amount of time. US 2016/0210199 A1 (on IDS) discloses virtualizing multiple networked machines using a predetermined network recovery policy that includes identifying multiple image backups of the multiple networked machines, determining an order for booting the multiple networked machines, determining network settings and storing the order and network settings in a predetermined network recovery policy.
Klimovic et al. disclose ephemeral storage for serverless analytics.
US 11,748,204 B1 (on IDS) discloses performing operation log journaling based on a flag. When the flag is true, then the virtual storage system is to use ephemeral storage (e.g., one or more ephemeral disks associated with the compute instance) for its operation log. When the flag is false, the virtual storage system may use persistent storage for its operation log.
Regarding claims 1, 8, and 14, the prior art does not teach or reasonably suggest reducing potential data-loss scenarios by after receiving an indication regarding an imminent shutdown or reboot of the compute instance, flushing, by the virtual storage system, an operation log maintained by the virtual storage system within a local memory of a host on which the compute instance is running to both ephemeral storage associated with the compute instance and persistent storage.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MICHAEL C MASKULINSKI whose telephone number is (571)272-3649. The examiner can normally be reached Monday-Friday 8:00 am-5:00 pm.
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/MICHAEL MASKULINSKI/Primary Examiner, Art Unit 2113
