Ex Parte Mizukoshi

Patent Trial and Appeal Board

Aug 3, 2016

13137198 (P.T.A.B. Aug. 3, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/137, 198 07/27/2011 Y asuhiro Mizukoshi
21254 7590 08/04/2016
MCGINN INTELLECTUAL PROPERTY LAW GROUP, PLLC
8321 OLD COURTHOUSE ROAD
SUITE 200
VIENNA, VA 22182-3817
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.
OSP-38018 1488
EXAMINER
ROSE, DERRICK V
ART UNIT PAPER NUMBER
2462
MAILDATE DELIVERY MODE
08/04/2016 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte Y ASUHIRO MIZUKOSHI
Appeal2015-003319
Application 13/137,198
Technology Center 2400
Before BRUCE R. WINSOR, LINZY T. McCARTNEY, and
NATHAN A. ENGELS, Administrative Patent Judges.
PER CURIAM.
DECISION ON APPEAL
.6. .... ,1 .... ,....,-TTr'1.r-"\ l\-1,....Al/'\.r'" , .. C- "1 • ,• Appeuant' appeals unaer j) u.~.L. s U4~aJ rrom me nna1 reJecuon
of claims 1-20. We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.
1 According to Appellant, the real party in interest is NEC Corporation.
App. Br. 1.
Appeal2015-003319
Application 13/137,198
STATEMENT OF THE CASE
The Invention
Appellant's invention "relates to a flow control apparatus, a network
system, a network control method, and a program." Spec. ,-r 1. Claims 1, 8,
9, and 10 are independent. Claim 1 is illustrative of the subject matter on
appeal:
1. A flow control apparatus that sends control information
to one or more switching node apparatuses, where the control
information is assigned to each series of communications
performed between terminal devices via the switching node
apparatuses, the flow control apparatus comprising:
an effective time setting unit configured to set an
effective time of the control information based on an elapsed
time measured from when the terminal devices which perform
the series of communications start a communication via a
specific one of the switching node apparatuses, in a manner
such that a longer the elapsed time, a longer the effective time
is set; and
a sending unit that sends the control information every
time when the effective time has elapsed.
See App. Br. 12 (Claims App'x).
Rejections on Appeal
Claims 1, 8, 9, and 10-20 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Clayton et al. (US 7,295,557 B2; issued Nov. 13, 2007)
("Clayton") and Yashima (US 2005/0259651 Al; published Nov. 24, 2005).
See Final Act. 4--8.
Claims 2-7 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over Clayton, Yashima, and Lin et al. (US 2010/0195515 Al; published
Aug. 5, 2010) ("Lin"). See Final Act. 8-12.
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Application 13/137,198
ISSUE
The issue presented by Appellant's contentions is as follows: Did the
Examiner err in concluding that the combination of Clayton and Y ashima
would have taught or suggested "an effective time setting unit configured to
set an effective time of the control information based on an elapsed time
... , in a manner such that [the] longer the elapsed time, [the] longer the
effective time is set," as recited in claim 1?
ANALYSIS
Claim 1 recites "an effective time setting unit configured to set an
effective time of the control information based on an elapsed time ... , in a
manner such that [the] longer the elapsed time, [the] longer the effective
time is set." App. Br. 12 (Claims App'x) (emphasis added).
The Examiner found Y ashima teaches "an effective time setting unit
configured to set an effective time of the control information" by ( 1)
determining whether the value of a timer exceeds a preset value, i.e.,
whether a timeout occurs, and (2) depending on that preset value, instructing
a buffer to output packets. See Final Act. 5---6 (citing Y ashima i-f 82); Ans.
12 (citing Yashima Fig. 10). The Examiner further found that Yashima's
timer, which measures the time elapsed from the last transmission of flow
control information, inherently discloses an effective time that is set "based
on an elapsed time ... , in a manner such that [the] longer the elapsed time,
[the] longer the effective time is set." Ans. 12-13 (citing Yashima claim 3).
Appellant contends the Examiner erred in finding that Y ashima
teaches or suggests the limitation at issue. See App. Br. 8-9; Reply Br. 4--5.
Specifically, Appellant argues that Yashima is silent about, and fails to teach
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Appeal2015-003319
Application 13/137,198
or suggest that "the longer the elapsed time from the start of the relevant
communication, the longer the effective time of the control information for
the series of communications." App. Br. 9; Reply Br. 4--5 (emphasis
omitted). In other words, Appellant argues Y ashima does not teach or
suggest that "after starting the communications, a time that elapses before
the next transmission of the control information is changed or set." App. Br.
9; Reply Br. 5 (emphasis omitted).
We agree with Appellant. Y ashima teaches a timer that measures the
time elapsed from the last transmission of the flow control information. See
Y ashima claim 3. Y ashima further teaches determining whether the value of
the timer exceeds a preset value and that when the time elapsed reaches the
preset value, flow control information can be transmitted. See Y ashima
claim 3, Fig. 10, i-f 82. Accordingly, Yashima's preset value evidences an
effective time setting unit configured to preset an effective time of the
control information. See id. But, as Appellant contends, the Examiner has
not shown that Yashima's preset value is preset or thereafter updated, or
"set," "based on an elapsed time ... , in a manner such that [the] longer the
elapsed time, [the] longer the effective time is set." See App. Br. 9; Reply
Br. 4--5; Ans. 11-13; Final Act. 4--6. Further, the Examiner has not shown
that Clayton cures this deficiency of Y ashima. See Ans. 11-13; Final Act.
4--6. Nor has the Examiner provided an adequate rationale to fill the gaps in
the cited prior art.
In view of the foregoing, we conclude the Examiner erred in the
rejection of independent claim 1. We do not sustain the rejection of claim 1,
as well as independent claims 8, 9, and 10, and dependent claims 11-20,
each of which includes the same deficiency discussed above with respect to
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Application 13/137,198
the rejection of claim 1. See App. Br. 6-11; Reply Br. 1---6; Ans. 11-13;
Final Act. 4--8. Nor do we sustain the rejection of claims 2-7, each of which
includes the same deficiency discussed above with respect to claim 1 that
has not been cured by Clayton or Lin. See App. Br. 6-11; Reply Br. 1---6;
Ans. 11-13; Final Act. 8-12.
DECISION
The decision of the Examiner to reject claims 1-20 under 35 U.S.C.
§ 103 is reversed.
REVERSED
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