Ex Parte Aihara et al

Board of Patent Appeals and Interferences

Jun 26, 2012

11350564 (B.P.A.I. Jun. 26, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte TORU AIHARA, NOBORU KAMIJOH,
and KAZUMASA OCHIAI
____________

Appeal 2010-010063
Application 11/350,564
Technology Center 3600
____________

Before MURRIEL E. CRAWFORD, JOSEPH A. FISCHETTI, and BIBHU
R. MOHANTY, Administrative Patent Judges.

MOHANTY, Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2010-010063
Application 11/350,564

2
STATEMENT OF THE CASE
The Appellants seek our review under 35 U.S.C. § 134 (2002) of the
final rejection of claim 12 which is the only claim pending in the
application. We have jurisdiction under 35 U.S.C. § 6(b) (2002).

SUMMARY OF THE DECISION
We REVERSE.

THE INVENTION
The Appellants’ claimed invention is directed to a communication
relay system (Spec. 1:4-6). Claim 1, reproduced below with the numbering
in brackets added, is representative of the subject matter on appeal.

12. A control method for controlling a communication relay system
for providing a communication service to an existing communication
network, comprising:
authenticating information from a primary and a secondary user
wherein the primary user uses a primary user terminal receiving
communication data through a fiber to home communication line and
the secondary user uses a secondary user terminal receiving
communication data relayed from the primary user terminal through a
power line communication line;
relaying a data communication from a source to a primary
communication device connected to the fiber to home communication
line and the primary user terminal;
determining whether the data communication is directed to the
primary communication device or to a secondary communication
device connected to the power line communication line and the
secondary user terminal;
[1] passing the data communication to the secondary
communication device through the primary communication device
after receiving authorization from the primary communication device;
Appeal 2010-010063
Application 11/350,564

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[2] charging a fixed monetary charge to the primary user for
communicating performed in the relaying of the data communication
to the primary communication device through the fiber to home
communication line; and
[3] charging a reduced amount of the fixed monetary charge as
a proportioned monetary charge to the secondary user based on a
proportional amount of data packets sent and received by the
secondary user of the data communication relayed through the fiber to
home communication line.

THE REJECTION
The Examiner relies upon the following as evidence in support of the
rejections:
Gros US 2002/0004788 A1 Jan. 10, 2002
Davidow US 7,194,528 B1 Mar. 20, 2007
The following rejection is before us for review:
1. Claims 12 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Davidow and Gros.

FINDINGS OF FACT
We find the following enumerated findings of fact (FF) are supported
at least by a preponderance of the evidence:1 Additional facts may appear in
the Analysis section.
FF1. Davidow at Figs. 1 and 4, and at col. 11:58:12:40, does not disclose
passing a data communication to a secondary communication device through

1 See Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427 (Fed. Cir. 1988)
(explaining the general evidentiary standard for proceedings before the
Patent Office).
Appeal 2010-010063
Application 11/350,564

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a primary communication device after receiving authorization from the
primary communication device.

ANALYSIS
The Appellants argue that the rejection of claim 12 is improper
because the cited prior art fails to disclose claim limitation [1] (Br. 11, Reply
Br. 10-11).
In contrast, the Examiner has determined that Davidow discloses this
claim limitation [1] at Figs. 1 and 4, and at col. 11:58:12:40 (Ans. 5).
We agree with the Appellants. Davidow at the portions cited by the
Examiner does not disclose claim limitation [1] (FF1) and the rejection of
claim 12 is therefore not sustained. The citations of Davidow at col. 11:58-
12:40 make no mention of the recited “authorization” as required in claim
limitation [1]. Similarly, Figs. 1 and 4 do not disclose the recited
“authorization” recited in claim limitation [1]. The Examiner does mention
that Davidow discloses the use of a powerline termination module and
access codes at col. 9:13-31. However, this citation in the reference is
coupled to the embodiment of Fig. 3 and not the embodiment of Fig. 4
described as cited at col. 11:58-12:4. The embodiment of Fig. 4 which has
been cited operates in a different manner and has not been shown to include
the recited required “authorization” in combination with the other claimed
elements of claim 12 and a prima facie case has not been established. For
these reasons the rejection of claim 12 is not sustained.

Appeal 2010-010063
Application 11/350,564

5
CONCLUSIONS OF LAW
We conclude that Appellants have shown that the Examiner erred in
rejecting claim 12 under 35 U.S.C. § 103(a) as unpatentable over Davidow
and Gros

DECISION
The Examiner’s rejection of claim 12 is reversed.

REVERSED

MP