DETAILED 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 .
Response to Arguments
Applicant’s amendments are not sufficient to overcome the nonstatutory double patenting rejections set forth in the previous Office Action. The rejections are maintained and repeated herein below.
Applicant’s amendments are sufficient to overcome the 35 U.S.C. 103 rejections set forth in the previous Office Action.
Claim Objections
Claims 1 and 11 are objected to because of the following informalities:
Claim 1 recites the phrase “the respective traffic flows” which lacks antecedent basis. It is suggested the phrase be amended to “the network respective traffic flows” for clarity and consistency.
Claim 11 recites the phrase “the respective traffic flows” which lacks antecedent basis. It is suggested the phrase be amended to “the network respective traffic flows” for clarity and consistency. Also, claim 11 recites the phrase “the one or more of the SPI and/or DPI firewall instances.” The claim previously recites a “plurality” of SPI and DPI firewall instances and not “one or more”.
Appropriate correction is required.
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.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
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 of carrying out his invention.
Claims 1-17 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claim 1 recites the limitation “first subgroup”. This limitation is not recited in the previous claim(s) or the instant specification. Therefore, claim 1 is considered to recite new matter. Dependent claims 2-10 are rejected for containing the same unsupported subject matter as parent claim 1.
Claim 6 recites the limitation “elastic processing resource.” This limitation is not recited in the previous claim(s) or the instant specification. Therefore, claim 1 is considered to recite new matter.
Claim 11 recites the limitations “first subgroup”, “elastic first firewall perimeter”, “elastic second firewall perimeter” and “dispatchable processing resources”. These limitation are not recited in the previous claim(s) or the instant specification. Therefore, claim 11 is considered to recite new matter. Dependent claims 12-17 are rejected for containing the same unsupported subject matter as parent claim 11.
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-17 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 1 recites the limitation “the corresponding respective endpoint device”. There is only a previously recited “corresponding respective endpoint devices” (plural). Therefore, it is unclear as to which particular corresponding respective endpoint device the limitation is referring. Also, claim 1 recites the limitation “the firewall instances.” There are multiple previously recited firewall instances and it is unclear as to which particular firewall instances the limitation is referring. Dependent claims 2-10 are rejected for containing the same indefinite subject matter as parent claim 1 without further remedying the indefiniteness.
Claim 6 recites the limitation “elastic processing resource.” The term “elastic” is a relative term which renders the claim indefinite. The term “elastic” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.
Claim 7 recites the limitation “their.” It is unclear what entity “their” is referring to. Also, claim 7 recites the limitation “the respective DPI firewall instances.” There is only a single previously recited respective DPI firewall instance not multiple respective instances. The limitation lacks antecedent basis.
Claim 8 recites the limitation “the respective DPI firewall instances.” There is only a single previously recited respective DPI firewall instance not multiple respective instances. The limitation lacks antecedent basis. Dependent claim 29 is rejected for containing the same indefinite subject matter as parent claim 8 without further remedying the indefiniteness.
Claim 10 recites the limitation “the firewall instances.” There are multiple previously recited firewall instances and it is unclear as to which particular firewall instances the limitation is referring.
Claim 11 recites the limitations “elastic first firewall perimeter” and “elastic second firewall perimeter”. The term “elastic” is a relative term which renders the claim indefinite. The term “elastic” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. Also, claim 11 recites the limitation “the corresponding respective endpoint device”. There is only a previously recited “corresponding respective endpoint devices” (plural). Therefore, it is unclear as to which particular corresponding respective endpoint device the limitation is referring. Dependent claims 12-17 are rejected for containing the same indefinite subject matter as parent claim 11 without further remedying the indefiniteness.
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 11-17 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. Claim 11 is directed towards a “system” comprising three entities: “a plurality of network devices configured into a secure overlay network”, “an elastic first firewall perimeter” and “an elastic second firewall perimeter”. None of these system elements are specifically limited to hardware. The claim language suggests the elements could be software by being part of the overlay (virtual) network. Accordingly, the system elements are considered to be software elements and the claim is considered to be directed towards software per se. Applicant may overcome by, for example, adding the term “hardware” directly before the term “network devices”. Dependent claims 12-17 are rejected for failing to further define parent claim 11 as statutory.
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 USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The 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/process/file/efs/guidance/eTD-info-I.jsp.
Claims 1-17 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-26 of U.S. Patent No. 10,574,482. Although the claims at issue are not identical, they are not patentably distinct from each other because it is clear that all of the limitations of claims 1-17 are disclosed by claims 1-26 of U.S. Patent No. 10,574,482.
Claims 1-17 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-21 of U.S. Patent No. 12,160,328. Although the claims at issue are not identical, they are not patentably distinct from each other because it is clear that all of the limitations of claims 1-17 are disclosed by claims 1-21 of U.S. Patent No. 12,160,328.
Claims 1-17 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-15 of U.S. Patent No. 12,316,554. Although the claims at issue are not identical, they are not patentably distinct from each other because it is clear that all of the limitations of claims 1-17 are disclosed by claims 1-15 of U.S. Patent No. 12,316,554.
Allowable Subject Matter
Claims 1-17 would be allowable if rewritten or amended to overcome the rejection(s) set forth in this Office action.
Claim 1 recites, inter alia, “analyzing, at a first firewall perimeter within the overlay network, coupled to each device of the first subgroup of the network devices, and distributed among processing resources located within a first one or more cloud data centers, each of the respective network traffic flows using a corresponding respective assigned stateful packet inspection (SPI) firewall instance of a plurality of SPI instances; for at least some identified flows of the respective traffic flows passing the first firewall perimeter, analyzing, at a second firewall perimeter within the overlay network, and distributed among processing resources located within a second one or more cloud data centers, at least some content of each of the identified flows using a respective assigned deep packet inspection (DPI) firewall instance of a plurality of DPI instances;… determining, by one or more of the SPI and/or DPI firewall instances, threat information based on analyzing the respective network traffic flows received from the egress/ingress points; and sharing, by the one or more of the SPI and/or DPI firewall instances, the threat information to a shared repository of threat information distributed to others of the firewall instances.”
The closest prior art of record are:
Banfield (U.S. Pub. No. 2015/0281176) which discloses transmitting reports and blocklists to other firewalls (paragraphs [0007], [0016], [0037], [0038], Fig. 2 and claims 1-3)
Wahl et al. (U.S. Pub. No. 2009/0265778) which discloses a firewall determines a signature for an attack and then distributes the signature to other devices (paragraphs [0007], [0008], [0010], [0014], [0023] and [0038]-[0040])
Ling et al. (U.S. Pub. No. 2015/0334090) – which discloses deep packet inspection for threat detection at a firewall (paragraph [0021])
While the prior art does generally disclose firewalls with packet inspection in an overlay network, the prior art was not specifically found to disclose the cited limitations. Therefore, claim 1 is considered to recite allowable subject matter over the prior art. Independent claim 11 is considered to recite allowable subject matter over the prior art for similar reasons to claim 1. Dependent claims 2-10 and 12-17 are considered to recite allowable subject matter over the prior art based on their dependency.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to THADDEUS J PLECHA whose telephone number is (571)270-7506. The examiner can normally be reached M-F 8-4:30.
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/THADDEUS J PLECHA/Examiner, Art Unit 2438