Ex Parte Kobayashi

Patent Trial and Appeal Board

Nov 26, 2014

11997559 (P.T.A.B. Nov. 26, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte MASAYOSHI KOBAYASHI
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Appeal 2012-004591
Application 11/997,559
Technology Center 2400
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Before JEFFREY S. SMITH, JOHNNY A. KUMAR, and
DANIEL N. FISHMAN, Administrative Patent Judges.

SMITH, Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2012-004591
Application 11/997,559

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STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 44–46, 53–55, 61, 62, 70–72, 79, and 80. Claims 47–52,
56–60, 63–69, 73–78, and 81–86 stand as allowable but objected to for
depending from a rejected base claim. Claims 1–43 have been canceled.
We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

Representative Claim
44. A network system collecting quality information and flow
routing information on a network the network comprising a
plurality of sub-networks, and each of the sub-networks
comprising a plurality of routes, each of the plurality of routes
comprising a plurality of links provided between routers,
switched and terminals, and each of the plurality of routes letting
an information flow therethrough, the network system,
comprising:
a plurality of extracting units each of which extracts a
flow each passing through a route of quality degradation and
designating a link making the quality degradation based on
quality information and routing information on the flow, for
corresponding one of the plurality of sub-networks ; and an
estimating unit estimates a route of quality degradation for
the network by merging information on the flows extracted and
the links designated by the plurality of extracting units for the
plurality of sub-networks.

Prior Art
Nagao US 2004/0213267 A1 Oct. 28, 2004
Shaffer US 7,046,636 B1 May 16, 2006

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Examiner’s Rejections
Claims 44–46, 53–55, 61, 62, 70–72, 79, and 80 stand rejected under
35 U.S.C. § 103(a) as unpatentable over Nagao and Shaffer.

ANALYSIS
We adopt the findings of fact made by the Examiner in the Final
Rejection and Examiner’s Answer. We concur with the conclusions reached
by the Examiner in the Examiner’s Answer. We highlight the following for
emphasis.

Section 103 Rejection of Claims 44–46
Appellant contends Shaffer does not teach the plurality of extracting
units and the estimating unit recited in claim 44. App. Br. 13–14. The
Examiner finds the analyzers of Shaffer teach the plurality of extracting
units, and the monitoring device of Shaffer teaches the estimating unit. Ans.
29–30. Appellant contends the analyzers of Shaffer only monitor
communication parameters, but do not extract a flow each passing through a
route of quality degradation. Reply Br. 1–2.
Appellant has not provided persuasive evidence or argument to
distinguish the analyzers of Shaffer, which keep track of dropped
communication packets that cause degradation in voice quality (col. 7, ll. 2–
12), from “a plurality of extracting units each of which extracts a flow each
passing through a route of quality degradation” as recited in claim 44.
Appellant addresses the Examiner’s findings made in the Final
Rejection for the first time on pages 2–5 of the Reply Brief. Appellant could
have presented these arguments in the Appeal Brief, such that we would
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Application 11/997,559

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have had the benefit of the Examiner’s evaluation of the arguments in the
responsive Answer. Appellant does not explain what good cause there
might be to consider the new arguments. Appellant’s new arguments are
thus untimely and have, accordingly, not been considered. See Ex parte
Borden, 93 USPQ2d 1473, 1474 (BPAI 2010) (informative).
We sustain the rejection of claim 44 under 35 U.S.C. § 103.
Appellant does not present arguments for separate patentability of claims 45
and 46, which fall with claim 44.

Section 103 Rejection of Claims 53–55, 61, 62, 70–72, 79, and 80
Appellant presents arguments for the patentability of claims 53–55,
61, 62, 70–72, 79, and 80 (App. Br. 16–20) similar to those presented for
claim 44 which we find unpersuasive.
We sustain the rejection of claims 53–55, 61, 62, 70–72, 79, and 80
under 35 U.S.C. § 103.

DECISION
The rejection of claims 44–46, 53–55, 61, 62, 70–72, 79, and 80 under
35 U.S.C. § 103(a) as obvious over Nagao and Shaffer is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 41.50(f).

AFFIRMED

Appeal 2012-004591
Application 11/997,559

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