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 .
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 any combination of claims 1-20 of U.S. Patent No. 12,430,212 (application 18/625,018). Although the claims at issue are not identical, they are not patentably distinct from each other because all the claimed subject matter has been claimed in ‘212 patent.
Specifically:
Claims 1, 11, and 20 correspond respectively to ‘212 claims 1, 14 and 18.
Claims 2-9 correspond respectively to the ‘212 claims 5-12.
Claim 10 corresponding to the ‘212 claim 2.
Claims 12-19 corresponding respectively to the ‘212 claims 5-12.
While it should be noted that claims 12-19 (apparatus) differ in category from the ‘212 claims 5-12 (method), that is the only distinguishable difference, which in no way would rise to the level of them being “patentably distinct” from each other.
Allowable Subject Matter
Once a proper terminal disclaimer is filed, the claims will be allowable for the exact same reasons as stated in the ‘212 patent’s notice of allowance dated 5/14/2025, which is reiterated below.
The following prior art are pertinent to the applicant's disclosure (and listed on the IDS dated 10/8/2025):
Wang (US 2019/0171537) herein referred to as Wang1
Kohler (US 2020/0034245)
Wang (US 2022/0156231) herein referred to as Wang2
Hegde (US 2016/0306854)
Littlefield (US 11,005,935)
Wang1, Kohler, and Wang2, all discuss backing up data to data shards. Wang1 specifically discusses in ¶18 for determining M data nodes on which to-be-stored data will be stored where N replicas will be split across X data shards. Wang2 specifically discusses in ¶73 a process to calculate the number of shards in which to divide a log-structured merging (LSM) tree data structure. Kohler does not provide any specifics on determining a quantity of shards to use for a backup, as "any number of shard servers" can be used. Hegde discusses "shard-aware client applications", which is discussed in the applicant's disclosure. This allows applications to know which shards they have access to and to be able to independently access those shards. Littlefield doesn't directly discuss "shards", but discusses a scheme for using multiple streams (i.e. which could be used to access different shards in parallel) in order to provide improved bandwidth utilization and load balancing during backup/restore operations.
However, all of the above prior art lacks essential teachings, suggestions, and/or
motivations, either alone or in combination that would render the claims unpatentable and/or obvious. For example, none of the prior art above discusses "determining, by the backup management system, a quantity of shards of a storage system to use to back up the set of computing objects based at least in part on an upper limit of computing-objects-per-shard and a first respective quantity of computing objects for a first application having a highest respective quantity of computing objects from among the set of applications". The prior art doesn't focus on sharding and/or applying backups with a focus on individual applications, as they are more directed to higher levels of data backup and security for entire systems and not just individual applications. As such, the prior art lacks details for determining a number of shards to assign to individual programs, and aren't constrained by the set of objects associated with different applications or an artificial upper limit of computing-objects-per-shard. The prior art looks at the entire data set as a whole that requires backup and may only take into account the data/objects themselves, regardless of what program(s) the data is associated with, such that frequently used/accessed and/or sensitive data can be backed up with appropriate redundancy, security, and set recovery point objectives (RPOs).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JASON W BLUST whose telephone number is (571)272-6302. The examiner can normally be reached 12-8:30 EST.
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/JASON W BLUST/ Primary Examiner, Art Unit 2132
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