DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Priority
The Instant Application, filed 09/19/2024, is a Continuation of PCT/JP2022/047782, filed 12/23/2022 and claims foreign priority to 2022-045816, filed 03/22/2022. Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitations are “a calculation unit that”, “a selection unit that” and “a transmission unit that” as recited in claim 1.
Because these claim limitation(s) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, they are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof. See specification page 5, lines 15-35 and fig. 3.
If applicant does not intend to have these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claim 12 is rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter. The claim recites “A storage medium,” which when given a reasonably broad interpretation, does not point to anything in particular and would typically cover forms of non-transitory tangible media and transitory propagating signals per se in view of the ordinary and customary meaning of storage media. When the broadest reasonable interpretation of a claim covers a signal per se, the claim must be rejected under 35 U.S.C. § 101 as covering non-statutory subject matter.
In an effort to assist the patent community in overcoming the rejection under 35 U.S.C. § 101, the USPTO suggest the following approach. A claim drawn to such a storage media (or the like) that covers both transitory and non-transitory embodiments may be amended to narrow the claim to cover only statutory embodiments to avoid a rejection under 35 U.S.C. § 101 by adding the limitation "non-transitory" to the claim, e.g. "non-transitory computer-readable storage media". Such an amendment would typically not raise the issue of new matter, even when the specification is silent because the broadest reasonable interpretation relies on the ordinary and customary meaning that includes signals per se.
The United States Patent and Trademark Office (USPTO) is obliged to give claims their broadest reasonable interpretation consistent with the specification during proceedings before the USPTO. See In re Zletz, 893 F.2d 319 (Fed. Cir. 1989) (during patent examination the pending claims must be interpreted as broadly as their terms reasonably allow). The broadest reasonable interpretation of a claim drawn to a computer readable medium (also called machine readable medium and other such variations) typically covers forms of non-transitory tangible media and transitory propagating signals per se in view of the ordinary and customary meaning of computer readable media, particularly when the specification is silent. See MPEP 2111.01. When the broadest reasonable interpretation of a claim covers a signal per se, the claim must be rejected under 35 U.S.C. § 101 as covering non-statutory subject matter. See In re Nuijten, 500 F.3d 1346, 1356-57 (Fed. Cir. 2007) (transitory embodiments are not directed to statutory subject matter) and Interim Examination Instructions for Evaluating Subject Matter Eligibility Under 35 U.S.C. § 101, Aug. 24, 2009; p. 2.
The USPTO recognizes that applicants may have claims directed to computer readable media that cover signals per se, which the USPTO must reject under 35 U.S.C. § 101 as covering both non-statutory subject matter and statutory subject matter. In an effort to assist the patent community in overcoming a rejection or potential rejection under 35 U.S.C. § 101 in this situation, the USPTO suggests the following approach. A claim drawn to such a computer readable medium that covers both transitory and non-transitory embodiments may be amended to narrow the claim to cover only statutory embodiments to avoid a rejection under 35 U.S.C. § 101 by adding the limitation “non-transitory” to the claim. Cf. Animals – Patentability, 1077 Off. Gaz. Pat. Office 24 (April 21, 1987) (suggesting that applicants add the limitation “non-human” to a claim covering a multi-cellular organism to avoid a rejection under 35 U.S.C. § 101). Such an amendment would typically not raise the issue of new matter, even when the specification is silent because the broadest reasonable interpretation relies on the ordinary and customary meaning that includes signals per se. The limited situations in which such an amendment could raise issues of new matter occur, for example, when the specification does not support a non-transitory embodiment because a signal per se is the only viable embodiment such that the amended claim is impermissibly broadened beyond the supporting disclosure. See, e.g., Gentry Gallery, Inc. v. Berkline Corp., 134 F.3d 1473 (Fed. Cir. 1998).
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1, 11 and 12 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 1 recites the limitations, “a calculation unit that, based on data amounts of packets held in a holding unit, which holds the plurality of packets in order of arrival, and line speeds of the plurality of communication paths, calculates predicted delays, which are time periods required for arrival of the packets at a reception device when the packets are transmitted through the plurality of communication paths,” in lines 4-10. However, it is unclear whether the calculation unit calculates predicted delays based on the line speeds of the plurality of communication paths or not. Thus the scope of the claimed limitations cannot be properly ascertained.
Claim 1 also recites the limitations, “a selection unit that, when selecting the communication paths that transmit the plurality of packets so that the plurality of packets are received by the reception device in the order of arrival, as a packet to be transmitted through a high-latency communication path having the largest predicted delay when packets having the same data amount are transmitted, selects a packet that is later in the order of arrival than another packet that is selected based on the predicted delay,” in lines 11-17. However, it is unclear how the phrase, as a packet to be transmitted through a high-latency communication path having the largest predicted delay when packets having the same data amount are transmitted, is connected to the rest of the limitations. There is clear grammatical error with the limitations thus the scope of the claimed limitations cannot be properly ascertained.
In view of the above issues, the claim is vague and indefinite. Claims 11 and 12 are rejected under the same rationale for reciting similar limitations.
Furthermore, the limitations of claim 12, “a calculation unit that”, “a selection unit that” and “a transmission unit that” invoke 35 U.S.C. 112(f) as per the 112(f) interpretation of claim 1 above. However, it is unclear how the claimed storage medium in which a transmission program is stored can function as a structure. Therefore the claim is vague and indefinite.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim(s) 1-12 are rejected under 35 U.S.C. 103 as being unpatentable over Nakata (2010/0172243) in view of Shaffer et al. (6,707,821).
As per claim 1, Nakata teaches a transmission device that transmits a plurality of packets through a plurality of communication paths with load distribution [Nakata, paragraph 0032], the device comprising:
a calculation unit that, based on data amounts of packets held in a holding unit, which holds the plurality of packets in order of arrival, and line speeds of the plurality of communication paths, calculates predicted delays, which are time periods required for arrival of the packets at a reception device when the packets are transmitted through the plurality of communication paths [Nakata, paragraphs 0054-0055];
a selection unit that, when selecting the communication paths that transmit the plurality of packets so that the plurality of packets are received by the reception device in the order of arrival, as a packet to be transmitted through a high-latency communication path having the largest predicted delay when packets having the same data amount are transmitted, selects a packet that is later in the order of arrival than another packet that is selected based on the predicted delay [Nakata, paragraphs 0052-0053]; and
a transmission unit that transmits the plurality of packets through the respective communication paths selected by the selection unit [Nakata, paragraph 0058-0059].
But Nakata fails to explicitly teach, however, Shaffer et al. in the same field of endeavor teaches packets arriving from a higher layer [Shaffer et al., co. 4, ll. 36-59].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine the teachings of Nakata with Shaffer et al. in order to improve the regularity of voice packet transmission and lessen the average voice packet transmission delay.
As per claim 2, Nakata-Shaffer teaches the transmission device according to claim 1, wherein the selection unit uses sequence numbers that are applied to the packets held in the holding unit in the order of arrival to select, as the packet that is later in the order of arrival, a packet having a sequence number that is obtained by providing a margin to the sequence number of the packet selected based on the predicted delay [Nakata, paragraph 0053].
As per claim 3, Nakata-Shaffer teaches the transmission device according to claim 2, wherein the selection unit sets the margin based on the predicted delay regarding packets that are capable of being transmitted within an allowable delay that is a value set to balance load distribution between the plurality of communication paths [Nakata, paragraph 0004].
As per claim 4, Nakata-Shaffer teaches the transmission device according to claim 2, wherein the selection unit sets the margin corresponding to a predicted delay difference that is a difference between a predicted delay of a packet to be transmitted through the high-latency communication path and a predicted delay of a packet to be transmitted through a low-latency communication path [Nakata, paragraph 0013].
As per claim 5, Nakata-Shaffer teaches the transmission device according to claim 2, wherein the selection unit sets the margin corresponding to a line speed of a low-latency communication path among the plurality of communication paths [Nakata, paragraph 0020].
As per claim 6, Nakata-Shaffer teaches the transmission device according to claim 4, wherein the selection unit sets the margin corresponding to an offset obtained by multiplying the predicted delay difference by a line speed of the low-latency communication path [Nakata, paragraph 0059].
As per claim 7, Nakata-Shaffer teaches the transmission device according to claim 2, wherein the selection unit defines the margin by a natural number [Nakata, paragraph 0064].
As per claim 8, Nakata-Shaffer teaches the transmission device according to claim 2, wherein if data amounts of the plurality of packets are not the same, the selection unit defines the margin by the data amount and selects, as the packet that is later in the order of arrival, a predetermined packet in a case in which a difference between the sum of the data amounts of sequential packets, which is from the packet next to the packet selected based on the predicted delay to the predetermined packet and the data amount defined as the margin is within a predetermined range [Nakata, paragraphs 0028-0032].
As per claim 9, Nakata-Shaffer teaches the transmission device according to claim 2, wherein if two or more low-latency communication paths are present, the selection unit sets the sum of margins regarding the low-latency communication paths as a final margin [Nakata, paragraph 0055].
As per claim 10, Nakata-Shaffer teaches the transmission device according to claim 1, wherein the transmission unit transmits the packets, the number of which is completely transmitted within an allowable delay set to balance load distribution between the plurality of communication paths [Nakata, paragraph 0064].
Claims 11-12 have similar limitations as to the rejected claims above therefore they are being rejected under the same rationale.
There are prior art made of record not relied upon but is considered pertinent to applicant's disclosure. See attached.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to RANODHI N SERRAO whose telephone number is (571)272-7967. The examiner can normally be reached Monday to Friday 8:00 am to 4:00 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, John Follansbee can be reached on (571) 272-3964. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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Ranodhi N. Serrao
/RANODHI SERRAO/
Primary Examiner, Art Unit 2444