Ex Parte Kobayashi

Patent Trial and Appeal BoardNov 26, 2014

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

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte MASAYOSHI KOBAYASHI ____________ Appeal 2012-004591 Application 11/997,559 Technology Center 2400 ____________ 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 2 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 Appeal 2012-004591 Application 11/997,559 3 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 Appeal 2012-004591 Application 11/997,559 4 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 5 tj