Ex Parte Mizuguchi et alDownload PDFPatent Trial and Appeal BoardMay 17, 201813404447 (P.T.A.B. May. 17, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/404,447 02/24/2012 27562 7590 05/21/2018 NIXON & V ANDERHYE, P.C. 901 NORTH GLEBE ROAD, 11 TH FLOOR ARLINGTON, VA 22203 FIRST NAMED INVENTOR Yuki Mizuguchi UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O. Box 1450 Alexandria, Virginia 22313-1450 www .uspto.gov ATTORNEY DOCKET NO. CONFIRMATION NO. 1506-80 8615 EXAMINER LAMONT, BENJAMIN S ART UNIT PAPER NUMBER 2461 NOTIFICATION DATE DELIVERY MODE 05/21/2018 ELECTRONIC Please find below and/or attached an Office communication concerning this application or proceeding. The time period for reply, if any, is set in the attached communication. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): PTOMAIL@nixonvan.com pair_nixon@firsttofile.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD ExparteYUKIMIZUGUCHI, TORUOE, YA ZHENG, LONG WANG, and MORIHISA MOMONA Appeal2016-005210 Application 13/404,44 7 Technology Center 2400 Before BRUCE R. WINSOR, NORMAN H. BEAMER, and MELISSA A. RAAP ALA, Administrative Patent Judges. WINSOR, Administrative Patent Judge. DECISION ON APPEAL Appellants 1 appeal under 35 U.S.C. § 134(a) from the final rejection of claims 1-19, which constitute all the claims pending in this application. We have jurisdiction under 35 U.S.C. § 6(b). We affirm-in-part. STATEMENT OF THE CASE Appellants' disclosed invention relates to "perform[ing] preferential control of data transmission" (Spec. ,r 1) in order to "smoothly perform[] data communications with reduced power consumption" (Spec. ,r 4). 1 Appellants identify Nintendo Co., Ltd., as the real party in interest. App. Br. 3. Appeal 2016-005210 Application 13/404,447 A game apparatus repeatedly switches between a doze state in which a wireless communication function is restricted, and an awake state. The game apparatus stores unicast data and broadcast data acquired in the awake state, in a normal queue, and transmits the pieces of data to air in acquisition order. On the other hand, in the doze state, the game apparatus stores acquired broadcast data in a preferential transmission queue, and stores acquired unicast data in the normal queue. Thereafter, when the game apparatus becomes the awake state again, the game apparatus transmits the broadcast data stored in the preferential transmission queue in preference to the unicast data stored in the normal queue. Spec. 33 (Abstract). Claim 1, which is illustrative, reads as follows: 1. A non-transitory computer-readable storage medium having stored therein a wireless communication program which is executed by a computer, which includes a memory device, of an information processing apparatus that includes a wireless transceiver, the information processing apparatus capable of switching between an awake state and a doze state in which at least a part of a wireless communication function of the wireless transceiver is restricted, the wireless communication program comprising instructions that cause the computer to: sequentially acquire data to be transmitted; when the information processing apparatus is in the doze state: store, of data acquired when the information processing apparatus is in the doze state, first data in a first queue on the memory device; and store, of the data acquired when the information processing apparatus is in the doze state, second data in a second queue on the memory device, the first data to be preferentially transmitted over the second data, in a second queue; and cause wireless transmissions to be sent via the wireless transceiver and when the information processing apparatus is in the awake state, where the first data stored in the first queue is 2 Appeal 2016-005210 Application 13/404,447 sent in the wireless transmissions in preference to the second data stored in the second queue. App. Br. 25 (Claims App.). Claims 1-52 and 8-19 stand rejected under 35 U.S.C. § I03(a) 3 as being unpatentable over Maekawa (US 2005/0233704 Al; publ. Oct. 20, 2005) and Satsangi et al. (US 2011/0213992 Al; publ. Sept. 1, 2011; "Satsangi"). See Final Act. 5-16. Claims 6 and 7 stand rejected under 35 U.S.C. § I03(a) as being unpatentable over Maekawa, Satsangi, and Orr et al. (US 8,411,694 B 1; iss. Apr. 2, 2013; "Orr"). See Final Act. 16-18. Rather than repeat the arguments here, we refer to the Briefs ("App. Br." filed Nov. 9, 2015; "Reply Br." filed Apr. 15, 2016) for the positions of Appellants; the Final Office Action ("Final Act." mailed Apr. 20, 2015) and Examiner's Answer ("Ans." mailed Feb. 19, 2016) for the reasoning, findings, and conclusions of the Examiner; and the Specification ("Spec." filed Feb. 24, 2012). Only those arguments actually made by Appellants have been considered in this decision. Arguments that Appellants did not make in the Briefs have not been considered and are deemed to be waived. See 37 C.F.R. § 4I.37(c)(l)(iv) (2015). 2 The Examiner lists claim 6 in the summary of the ground of rejection over Maekawa and Satsangi (Final Act. 5), but does not provide a detailed ground of rejection (see Final Act. 8). We view this as a harmless ministerial or typographical error. Claim 6 is rejected over Maekawa, Satsangi, and Orr. Final Act. 16-17. 3 All rejections are under the provisions of 35 U.S.C. in effect prior to the effective date of the Leahy-Smith America Invents Act of 2011 ("pre-AIA"). Final Act. 2, 5. 3 Appeal 2016-005210 Application 13/404,447 ISSUES The dispositive issues4 presented by Appellants' arguments are as follows: Does the Examiner err by failing to give the preamble of claim 1 patentable weight? Does the Examiner err in finding the combination of Maekawa and Satsangi teaches or suggests a "second queue," as recited in claim 1? Does the Examiner err in finding a person of ordinary skill in the art would have combined Maekawa and Satsangi in the manner recited in claim 1? Does the Examiner err in finding the combination of Maekawa and Satsangi teaches or suggests "after the first data stored in the first queue has been wireless[ly] transmitted, the second data stored in the second queue is wireless[ly] transmitted air [sic] in the order the data was acquired," as recited in claim 2? Does the Examiner err in finding the combination of Maekawa and Satsangi teaches or suggests, "the first data is wirelessly transmitted by using broadcast or multicast," as recited in claim 3? Does the Examiner err in finding the combination of Maekawa and Satsangi teaches or suggests, "all data acquired and then stored in the first and second queue during the doze state is transmitted during the awake state," as recited in claim 18? Does the Examiner err in finding the combination of Maekawa, Satsangi, and Orr teaches or suggests, "the first data acquired when the 4 Appellants' arguments present additional issues. Because the identified issues are dispositive of the appeal, we do not reach the additional issues. 4 Appeal 2016-005210 Application 13/404,447 information processing apparatus is in the awake state is stored in the second queue," as recited in claim 6? Preamble ANALYSIS Claim 1 The Examiner concludes the statement "the information processing apparatus capable of switching between an awake state and a doze state in which at least a part of a wireless communication function of the wireless transceiver is restricted," recited in the preamble of in claim 1 is a mere statement of intended use, entitled to no patentable weight. Final Act. 6. Appellants contend this portion of the preamble should be given patentable weight because it "' ... give[ s] life, meaning, and vitality to the claim."' App. Br. 16 ( quoting MANUAL OF PATENT EXAMINING PROCEDURE (MPEP) § 2111.02). Although stating that the preamble language has no patentable weight, the Examiner found that Maekawa teaches or suggests the elements of the preamble. Final Act. 6 (citing Maekawa ,r,r 43, 61)); see Ans. 8 ("Even if the preamble should be given patentable weight, the prior art still teaches the limitations found in the preamble."). Appellants do not traverse or rebut he Examiner's findings applying Maekawa to the preamble. See generally App. Br. 10-16; Reply Br. 2-3. Accordingly, Appellants' argument is moot and, therefore, does not demonstrate Examiner error. Second Queue The Examiner maps the "second queue" recited in claim 1 to Maekawa's game buffer 66. Final Act. 6 (citing Maekawa ,r 138; see also 5 Appeal 2016-005210 Application 13/404,447 Maekawa Fig. 13). Appellants contend Maekawa's game buffer is not a "queue" as that term is understood in the art, and that the Examiner has given the term "second queue" an unreasonably broad interpretation. App. Br. 13-16. A widely-used computer arts technical dictionary defines a "queue" as follows: A multi-element data structure from which (by strict definition) elements can be removed only in the same order in which they were inserted; that is it follows a first in, first out (FIFO) constraint. There are also several types of queues in which removal is based on some factors other than order of insertion- for example, some priority value assigned to each element MICROSOFT COMPUTER DICTIONARY (MICROSOFT) 433 (5th ed. 2002) ( emphasis added). This is consistent with the Specification's description of the operation of queues. See Spec. ,r,r 7 6 ("The frames stored in the preferential transmission queue 362 are sent to the transmission section 364 in the order the frames were stored."), 77 ("The frames stored in the normal queue 3 63 are sent to the transmission section 3 64 in the order the frames were stored."). 5 Therefore, we agree with Appellants that interpreting a "queue" as merely a "memory for the storage of data" is unreasonably broad. As our reviewing court instructs us as follows: The correct inquiry in giving a claim term its broadest reasonable interpretation in light of the specification is not whether the specification proscribes or precludes some broad reading of the claim term adopted by the examiner. And it is not simply an interpretation that is not inconsistent with the 5 Paragraphs 7 6 and 77 of the Specification are mistakenly identified by Appellants as paragraphs 96 and 97. See App. Br. 15. 6 Appeal 2016-005210 Application 13/404,447 specification. It is an interpretation that corresponds with what and how the inventor describes his invention in the specification. In re Smith Int'!, Inc., 871 F.3d 1375, 1382-83 (Fed. Cir. 2017). That said, however, the Examiner does not rely solely on an overly-broad interpretation of the "second queue," but, rather, articulates further findings and explanations to demonstrate that Maekawa's game buffer is, nonetheless, within an interpretation of the "second queue" that is consonant with the broadest reasonable interpretation See Ans. 6-7 ( citing Maekawa ,r,r 137-39, Fig. 13). In particular, the Examiner finds Maekawa teaches game data enters the left side of game buffer 66 and exits the right side of game buffer 66 and that the game buffer is organized to output the oldest data block or signal first. See id. We agree. Maekawa teaches the following: The game buffer 66 is configured as an overwrite memory. In a game application requiring low delay, it is important to send one data block after another on a real-time basis. When new data is generated in the even[t] of a transmission delay, delayed data need not be transmitted. By configuring the game buffer as an overwrite memory, enabling new data to overwrite old data, real- time availability of data is ensured. Maekawa ,r 139 (emphasis omitted). Maekawa, thus, teaches that in the absence of a transmission delay, the game buffer sends "one data block after another on a real-time basis," in other words, data blocks are removed from the buffer in the same order that they entered the buffer-a "queue." To be sure, Maekawa also teaches overwriting old data with new data in the event of a transmission delay, but the use of this additional factor for removal of data from the queue does not change its character as queue. See MICROSOFT at 433. Additionally, Maekawa's teaching would at least suggest to one of 7 Appeal 2016-005210 Application 13/404,447 ordinary skill in the art that replacing old data with new data would also cause the old data to be removed from the game buffer in the order in which it was originally written into the game buffer. Accordingly, we conclude, in accordance with the Examiner's alternative findings, that Maekawa's game buffer is within the broadest reasonable interpretation of a "second queue." Therefore, Appellants' argument does not demonstrate error in the rejection of claim 1. Combination The Examiner relies on Maekawa to teach all of the limitations of claim 1 (Final Act. 5-7 (citing Maekawa ,r,r 43, 49, 61, 64, 137-38, 140, Fig. 13)), except "Maekawa does not explicitly teach acquiring and storing data 'when the information processing apparatus is in the doze state"' (Final Act. 7). The Examiner relies on Satsangi to teach receiving and storing data packets when an apparatus is in a low power state ("doze state"). Final Act. 7 ( citing Satsangi ,r,r 23, 31, 34, Fig. 2). Appellants contend the teachings of Maekawa are incompatible for the following reasons: Maekawa teaches that power to the reception and transmit functions of the communications interface of the game device are suspended when the device enters a sleep state. In other words, when Maekawa's device enters a sleep state it cannot receive or transmit new packets. The reason that Maekawa uses a sleep beacon and timer is to reduce the amount of power being consumed by the communication interface of the device. See [Maekawa] [p]aragraphs 10-15 and 45. In contrast to the controlled supply of power to a communication interface in Maekawa, Satsangi operates by always supplying power to a communication interface. The devices in Satsangi need to keep the communication interface 8 Appeal 2016-005210 Application 13/404,447 "on" otherwise it would not be possible to receive and classify packets. App. Br. 11. Appellants contend "if such a combination were adopted it would completely destroy how Maekawa intended his device to operate - i.e., sleeping based on a sleep beacon signal and waking upon expiration of a locally maintained timer." Id. We disagree with Appellants' argument. Appellants' argument is based on bodily incorporating all or a portion of Satsangi into Maekawa's device. However, it is well established that [t]o justify combining reference teachings in support of a rejection it is not necessary that a device shown in one reference can be physically inserted into the device shown in the other. The test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. In re Keller, 642 F.2d 413,425 (CCPA 1981) (citations omitted). As pointed out by the Examiner, "Satsangi is cited for teaching only one concept -the ability to receive and store data while in a lower power state." Ans. 4 ( emphasis omitted). Maekawa teaches a functional unit ("TRANSMISSION CONTROLLER" with "MAC UNIT" having "FIFO" and "GAME BUFFER" memories (Maekawa Figs. 6, 12, 13)) receiving data ("DATA SIGNAL" (id. at Fig. 13)) from a source of data ("APPLICATION PROCESSING UNIT," (id. at Fig. 6)) into one or more memories ("FIFO" and "GAME BUFFER" (id. at Fig. 13)) and passing that data to a downstream functional unit ("TRANSMITTER UNIT" within 9 Appeal 2016-005210 Application 13/404,447 "PHY UNIT" (id. Figs. 6, 12)). Maekawa further teaches that all or portions of the downstream functional unit may be in a "doze mode" ("sleep state" (id. ,r 43)) to conserve power (id.). Similarly, Satsangi teaches a functional unit ("first network interface circuit" (Satsangi ,r 24, Fig. 1)) receiving data ("Ethernet packets" (id.)) from a source of data ("network," (id.)) and passing that data to downstream functional units ( e.g., "CPU 1 and CPU 2" (id. at Fig. 1 ). Satsangi further teaches that all or portions of the downstream functional units may be in a "doze mode" ("sleep mode" (id. ,r 24)) to conserve power (id. ,r,r 22-23). As found by the Examiner, Satsangi also teaches that when the downstream functional units are in the sleep mode, certain packets are stored to memory for later processing by the downstream functional units (id. ,r,r 23, 31, 34, Fig. 2; see also id. ,r 24). Thus, both Maekawa and Satsangi teach receiving data from a source of data intended for a downstream functional unit that may be in a "doze mode" to conserve energy. Satsangi teaches storing received data when the downstream functional unit is in the "doze mode." We agree with the Examiner that one of ordinary skill in the art would have learned from Satsangi to store data received from Maekawa's application processing unit intended for Maekawa's transmitter unit when the transmitter unit is in a sleep state. Appellants have not demonstrated the Examiner erred in combining Maekawa with Satsangi. Summary Appellants' arguments do not demonstrate error in the rejection of claim 1. Accordingly, we sustain the rejection of (1) independent claim 1; 10 Appeal 2016-005210 Application 13/404,447 (2) independent claims 12 and 13, which are argued together with claim 1; and (3) claims 5, 8-11, 14--17, and 19, which variously depend, directly or indirectly, from claims 1 and 12, and were not separately argued with particularity. Claim 2 The Examiner finds Maekawa teaches that "after the first data stored in the first queue has been wireless[ly] transmitted, the second data stored in the second queue is wireless[ly] transmitted ... in the order the data was acquired," as recited in claim 2. Final Act. 7 (citing Maekawa ,r,r 138--40). Appellants contend the Examiner errs by relying on teachings related to Maekawa's FIFO, mapped to the recited "first queue" to explain the functioning of Maekawa's game buffer, mapped to the recited "second queue," i.e., that the Examiner double maps the Maekawa's FIFO to both the "first queue" and "second queue." App. Br. 17. We disagree with Appellants' contention. As explained by the Examiner, and as discussed supra regarding claim 1, the Examiner relies solely on Maekawa's game buffer to teach the features of the recited "second queue." See Ans. 6-7. Appellants further contend as follows: Maekawa contains no discussion of having the data in the game buffer ( 66) transmitted "in the order the data was acquired" as is required by claim 2. Instead, Maekawa notes that data in the game buffer is overwritten because "delayed data need not be transmitted." Paragraph 139. In other words, Maekawa teaches that some of the data written to the game buffer will be dropped or overwritten. Id. As a result of this overwriting process, the data in Maekawa's game buffer will not be transmitted in the order it was acquired. App. Br. 17-18. We are not persuaded by Appellants' contention because it is not commensurate with the language of claim 2. As discussed supra 11 Appeal 2016-005210 Application 13/404,447 regarding claim 1, we agree with the Examiner's finding that Maekawa's game buffer teaches a queue in which data is removed from the queue in the same order that it enters the queue. See Ans. 9. The Examiner continues, "contrary to the Appellant[s'] argument, the claim language does not require ... [the second queue] transmit every data block it receives. Instead, the claim language only requires transmission in the order acquired, which Maekawa teaches." Id. We agree with the Examiner. Claim 2 recites that the second data "stored'' ( emphasis added) in the second queue is transmitted in the order acquired after the data in the first queue has been wirelessly transmitted. However, claim 2 does not require that all data acquired remain stored, i.e., does not preclude Maekawa's deletion or overwriting of data in the second queue in the event of transmission delay, so the acquired data is no longer stored in the second queue after the data in the first queue has been transmitted. 6 But cf claim 18 ( discussed infra). Appellants have not established error in the rejection of claim 2. Accordingly, we sustain the rejection of claim 2 Claim 3 The Examiner finds Maekawa teaches, "the first data is wirelessly transmitted by using broadcast or multicast," as recited in claim 3. Final Act. 8 (citing Maekawa ,r,r 46, 137). Appellants contend that there is no teaching in Maekawa that its broadcast beacon signal is stored in Maekawa's 6 We note that claim 2 utilizes the open-ended transition term "comprising." "'Comprising' is a term of art used in claim language which means that the named elements are essential, but other elements may be added and still form a construct within the scope of the claim." Genentech, Inc. v. Chiron Corp., 112 F.3d 495, 501 (Fed. Cir. 1997) (citation omitted). 12 Appeal 2016-005210 Application 13/404,447 FIFO (mapped to the claimed first queue). App. Br. 18. We agree with Appellants. The Examiner finds Maekawa teaches the data stored in the FIFO includes control signals (Maekawa ,r 138), beacon signals are control signals because they include basic parameters for communication and are not game data (id. ,r 46), and beacon signals are broadcast (id. ,r,r 46, 49). Ans. 10. In other words, the Examiner reasons that all beacon signals are broadcast signals and are control signals, the FIFO receives and transmits control signals, and, therefore, the FIFO receives and transmits broadcast signals. However, this reasoning leaves out a critical step, i.e., the Examiner points to no teaching in Maekawa that the FIFO receives and transmits all control signals, and in particular does not explain why the FIFO would receive and transmit the beacon signals. Indeed, given Maekawa's teaching that a beacon signal can force all stations into an active state (Maekawa ,r 46) and is based on specific timing constraints (id.), the Examiner has not established why a beacon signal would be stored in any queue, rather than being sent when generated. The Examiner has not established that Maekawa, alone or combined with Satsangi, taches or suggests, "the first data is wirelessly transmitted by using broadcast or multicast," as recited in claim 3. Accordingly, constrained by this record, we are unable to sustain the rejection of claim 3, or claim 4, which depends from claim 3. Claim 18 The Examiner finds the combination of Maekawa and Satsangi teaches or suggests, "all data acquired and then stored in the first and second queue ... is transmitted ... " (Final Act. 15-16 ( citing Maekawa ,r,r 31, 140, 13 Appeal 2016-005210 Application 13/404,447 Fig. 2)), and Satsangi teaches "acquir[ing] and then stor[ing data] ... during the doze state [and] ... transmit[ting data] during the awake state" (id. ( citing Satsangi ,r,r 34--35)), as recited in claim 18. The Examiner explains, "Maekawa only overwrites game data in the game buffer if a transmission delay occurs (para. 139 of Maekawa- 'in the even[t] of a transmission delay'). As a result, Maekawa teaches transmitting all the game data in the game buffer 66 when no transmission delay is encountered." Ans. 11. Appellants contend, "Maekawa ... overwrites data written into the game buffer and accordingly 'all data' stored to the first and second queues will not be transmitted during the awake state." App. Br. 20. We agree with Appellants. The claim recites that all acquired and stored data is transmitted. But cf claim 2 ( discussed supra). Although data in the game buffer may have been overwritten, and is no longer stored in the game buffer, it is still data that has been "acquired and stored." The term "all" means "the whole amount or quantity of ... every member or individual component of ... EVERY ... any whatever." MERRIAM- WEBSTER'S COLLEGIATE DICTIONARY 29 (10th ed. 1999). Therefore, Maekawa's omission of any data acquired and stored whatsoever from that transmitted leads to the conclusion that Maekawa does not teach that all of the data acquired and stored is transmitted. Nor does the fact that Maekawa may, in certain cycles of the system operation (i.e., when there is no transmission delay), incidentally transmit all of the current acquired and stored data, teach the limitation. To teach the limitation, all acquired and stored data must be transmitted. Appellants have established error in the rejection of claim 18. Accordingly, we do not sustain the rejection of claim 18. 14 Appeal 2016-005210 Application 13/404,447 Claim 6 With regard to the rejection of claim 6, the Examiner finds that Maekawa, when combined with Satsangi, teaches that first data (Maekawa's control data) is stored in the first queue, regardless of whether the apparatus is in the doze or awake state. Final Act. 8 ( citing Maekawa ,r 13 8) ( discussing claim 5), 17 ( citing Maekawa ,r 138). The Examiner relies on Orr to teach first data in the second queue (Maekawa's game buffer) when the apparatus is in the awake state "to use available memory during buffer overflow situations, as taught by Orr, to store the control signals, taught by the combination of Maekawa and Satsangi, in order to prevent from discarding control signals." Final Act. 17 (citing Orr col. 3, 11. 47-52, col. 4, 11. 29-39, 53---67). Appellants contend "Orr and the other relied upon references do not contain any such teachings that tie storing data in one queue to another when a device is in an awake state. Instead, Orr merely ties storing data in another queue when an overflow occurs." App. Br. 21. We agree with Appellants. First of all, although Maekawa does teach that the game buffer (second queue) may overflow, causing data to be overwritten (see Maekawa ,r 139) the Examiner does not establish that Maekawa faces a problem with FIFO (first queue) overflow, and in particular does not establish that the problem occurs when the apparatus is awake. Furthermore, although Orr teaches moving data from one queue to another queue (Orr col. 4, 11. 29-39), the claim requires that "the first data acquired when the ... apparatus is in the awake state" ( emphasis added) be stored in the second queue, not merely that some fraction of the first data acquired during the awake state (i.e., the overflow data) be stored in the second queue. 15 Appeal 2016-005210 Application 13/404,447 Appellants have established the Examiner errs in rejecting claim 6. Accordingly, we do not sustain the rejection of claim 6 or claim 7, which depends from claim 6. DECISION The decision of the Examiner to reject claims 1, 2, 5, 8-17 and 19 is affirmed. The decision of the Examiner to reject claims 3, 4, 6, 7, and 18 is reversed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l). See 37 C.F.R. §§ 41.50(±), 4I.52(b). AFFIRMED-IN-PART 16 Copy with citationCopy as parenthetical citation