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.
Claims 1-20 are pending.
Claim Objections
Claims 9 and 18 are objected to because of the following informalities:
“adding, continuously by a scanning stack by a provisioning engine” in line 2 of claim 9 should read “adding, continuously [[by]] to a scanning stack by a provisioning engine”.
“a plurality of virtual machine images” in lines 2-3 of claim 9 should read “a plurality of virtual machine (VM) images”.
“adding, continuously by a scanning stack, a plurality of VM images” in line 8 of claim 18 should read “adding, continuously [[by]] to a scanning stack, a plurality of VM images”.
Appropriate correction is required.
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 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-12 of U.S. Patent No. 12380207. Although the claims at issue are not identical, they are not patentably distinct from each other because claims 1-20 of the instant application are obvious over claims 1-12 of U.S. Patent No. 12380207.
Instant application 19/269,859
U.S. Patent No. 12380207
1
1
2-8
2-6
9
7
10-17
8-12
18
1
19-20
2-6
Allowable Subject Matter
Claims 1-20 would be allowable if the claim objections and the non-statutory double patenting rejections are overcome.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure:
Meier (US 20230056770) discloses automated security scanning of incoming images for use in creating containers such as a Virtual Machines. Based upon attribute(s) of metadata of the incoming image, a security engine chooses from amongst stored scripts for mounting and execution by installation logic. Such scripts can relate to the scanning itself, and/or pre-scanning considerations (such as scan frequency). In one example, the meta data attribute identifies a relevant Operating System (OS) of the incoming image. Other meta data attributes such as scan frequency, most recent passed scan, log information, and contact information (for issuance of a possible alert), may also be considered as part of the processing of an incoming image. Embodiments may enhance security by avoiding introduction of vulnerabilities through image instantiation. Embodiments may also impart flexibility to conserve resources by selectively scanning according to a frequency and/or date of last successful passage of the image.
Chen (US 20190392144) discloses virus scanning of container images can be managed. For example, container images can be received in a sequential order. The container images can then be analyzed to determine the contents of the container images. The container images can be arranged in a virus-scanning queue in an order that is different from the sequential order in which the container images were received based on the contents of the container images. The container images can then be scanned for viruses in the order in which the container images are arranged in the virus-scanning queue.
Levin (US 20220019452) discloses a system and method for scanning of virtual machine images. The method includes creating a virtual machine instance of a virtual machine based on a virtual machine image of the virtual machine and an application programming interface (API) of an environment in which the virtual machine is to be deployed, wherein the virtual machine image has an entry point such that the virtual machine instance executes the entry point; and replacing the entry point of the virtual machine instance with a lightweight script, wherein the lightweight script is configured to retrieve a static scanner executable, to execute the static scanner executable, and to send results of the scanning.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to TRONG NGUYEN whose telephone number is (571)270-7312. The examiner can normally be reached on Monday through Thursday 9:00 AM - 5:00 PM EST.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, GELAGAY SHEWAYE can be reached on (571)272-4219. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/TRONG H NGUYEN/Primary Examiner, Art Unit 2436
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