Ex Parte Hetzel et al

Patent Trial and Appeal Board

Oct 16, 2013

11106030 (P.T.A.B. Oct. 16, 2013)

UNITED STATES PATENT AND TRADEMARKOFFICE
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
11/106,030 04/14/2005 Herbert Hetzel 5858-04700 3136
35617 7590 10/17/2013
DAFFER MCDANIEL LLP
P.O. BOX 684908
AUSTIN, TX 78768
EXAMINER
EDOUARD, PATRICK NESTOR
ART UNIT PAPER NUMBER
2644
MAIL DATE DELIVERY MODE
10/17/2013 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 HERBERT HETZEL, RAINER KLOS, CHRISTIAN THIEL,
and CLAUDIUS BECKER
____________

Appeal 2011-002579
Application 11/106,030
Technology Center 2600
____________

Before JOSEPH F. RUGGIERO, MAHSHID D. SAADAT and
KRISTEN L. DROESCH, Administrative Patent Judges.

DROESCH, Administrative Patent Judge.
DECISION ON APPEAL
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Application 11/106,030

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STATEMENT OF THE CASE
The Appellants seek review under 35 U.S.C. § 134(a) of a final
rejection of claims 1-30. We have jurisdiction under 35 U.S.C. § 6(b). We
AFFIRM-IN-PART.
BACKGROUND
The Appellants’ disclosed invention relates to a digital network for
communication by means of streaming data between a plurality of
subscribers comprising at least one subscriber that is a transmitter, and at
least one subscriber that is a receiver. At least one transmitter is adapted to
be activated, and then to feed streaming data in the form of broadcasts or
multicasts into the network. At least one receiver is adapted to be activated,
and then to select from the network streaming data that are compatible with
its data formats, and to read the selected streaming data from the network.
Abs.; see also Spec. 2-3.
Claims 1 and 28 are illustrative and are reproduced below (disputed
limitation in italics):
1. A digital network for communication between a plurality
of subscribers by means of streaming data, comprising:
at least one subscriber that is a transmitter designed to
transmit data on the network, wherein the
transmitter is adapted to automatically feed non-
directed streaming data into the network at the
moment in which the transmitter is connected to
the network; and
at least one subscriber that is a receiver designed to
receive data from the network, wherein the
receiver is adapted to select a non-directed data
stream compatible with the receiver, and to
automatically read the streaming data of the non-
directed data stream from the network at the
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moment in which the receiver is connected to the
network.

28. A digital network for communication between a plurality
of subscribers by means of streaming data, comprising:
at least one subscriber that is a transmitter designed to
transmit data on the network, wherein the
transmitter is adapted to automatically feed non-
directed streaming data into the network at the
moment in which the transmitter receives power
via a supply voltage; and
at least one subscriber that is a receiver designed to
receive data from the network, wherein the
receiver is adapted to select a non-directed data
stream that is compatible with the receiver, and to
automatically read the streaming data of the non-
directed data stream from the network at the
moment in which the receiver receives power via a
supply voltage.

Rejections
Claims 1-13 and 15-30 stand rejected under 35 U.S.C. § 102(e) as
being anticipated by Karaoguz (U.S. 2004/0114036 A1, Jun. 17, 2004).
Claim 14 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Karaoguz and Cho (U.S. 2005/0076136 A1, Apr. 7,
2005).
ISSUES
Did the Examiner err in finding that Karaoguz describes “the
transmitter is adapted to automatically feed non-directed streaming data into
the network at the moment in which the transmitter is connected to the
network” and “the receiver is adapted to . . . automatically read the
streaming data of the non-directed data stream from the network at the
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moment in which the receiver is connected to the network,” as recited in
claim 1, and similarly recited in independent claims 25 and 26?
Did the Examiner err in finding that Karaoguz describes “the
transmitter is adapted to automatically feed non-directed streaming data into
the network at the moment in which the transmitter receives power via a
supply voltage” and “the receiver is adapted to select a non-directed data
stream that is compatible with the receiver, and to automatically read the
streaming data of the non-directed data stream from the network at the
moment in which the receiver receives power via a supply voltage,” as
recited in independent claim 28 and similarly recited in independent claims
27, 29 and 30?
ANALYSIS
As an initial matter, we note that the Appellants traverse the
Examiner’s objections to claims 1-30 for various informalities. App. Br. 5.
To the extent that the Appellants seek review of these claim objections on
appeal, such objections are reviewable upon petition to the Director. 35
U.S.C. § 134; 37 C.F.R. §§ 1.113, 1.181.
We have reviewed the Examiner’s rejections in light of the
Appellants’ arguments in the Appeal Brief presented in response to the Final
Office Action and the Reply Brief presented in response to the Answer. We
highlight and address specific findings and arguments as follows.
Claims 1-26
The Examiner finds that Karaoguz describes a transmitter and a
receiver that automatically establishes the streaming channel according to
activating criteria, such as user initiations, sensor input, and schedules. Ans.
3-5 (citing ¶¶ 0044-0056, 0061, 0066; Figs. 1A, 1B, 1C). The Examiner
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further explains that at the moment the channel is established (i.e., the
moment the transmitter is connected to the network), the transmitter feeds
the streaming data. Ans. 10.
The Appellants argue that “[i]nstead of configuring a transmitter
and/or receiver to communicate ‘automatically,’ i.e., as soon as the
transmitter/receiver is connected to a network or a supply voltage . . . ” and
“[i]nstead of the claimed plug-and-play, automatic communication upon
connection, Karaoguz purposely delays communication until sometime after
a connection has been made to the network, wherein the start of
communication is dependent on a sensor input, user response, or scheduled
event.” App. Br. 6-8 (citing Abs. ¶¶ 0044-0048, 0053-0058; Figs. 1A, 1B,
1C, 2). The Appellants further argue that one skilled in the art would
understand the difference between connecting a subscriber to a network and
establishing a communication channel between networked subscribers.
Reply Br. 2. In support of this argument, the Appellants assert “[a]s known
in the art and set forth in the Appellant[]s[’] specification, a subscriber may
be connected to a network by connecting the subscriber to a bus system,
such as the ring network shown in Appellant[]s[’] Figure 2 . . . .” Id.
The Appellants’ arguments are not persuasive. We decline the
Appellants’ invitation to narrowly interpret the phrases “the transmitter is
connected to the network,” “the receiver is connected to the network,” “upon
connecting the transmitter to the network,” and “upon connecting the
receiver to the network” as requiring a physical connection, such as may
occur upon plugging a plug-and-play device or upon connection to a bus
system. Rather, the broadest reasonable interpretation is applied to the
claims. In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). We agree with
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the Examiner’s findings that Karaoguz’s description of establishing a
communication channel on the network, meets the limitations of “the
transmitter is connected to the network,” “the receiver is connected to the
network,” “upon connecting the transmitter to the network,” and “upon
connecting the receiver to the network,” when broadly construed. The
Appellants do not direct us to objective evidence, such as a declaration by
one with ordinary skill in the art, to demonstrate that the Examiner’s
construction is unreasonable.
The Appellants further argue that Karaoguz does not describe “non-
directed streaming data,” as recited in claims 1, 25 and 26. App. Br. 7-9;
Reply Br. 4-6. We are unpersuaded by the Appellants’ arguments as the
recitation of “non-directed streaming data” is directed to nonfunctional
descriptive material that merely describes a characteristic of the data and
does not distinguish the claimed invention from the prior art. See Ex parte
Nehls, 88 USPQ2d 1883, 1887-90 (BPAI 2008) (precedential); see also In re
Ngai, 367, F.3d 1336, 1339 (Fed. Cir 2004). The description of the
streaming data as “non-directed” is not functionally related to the claimed
system or its components (i.e., digital network, transmitter and receiver). In
other words, the digital network, transmitter and receiver is not affected or
altered based on the streaming data being non-directed. The structure and
function of the system is the same regardless of whether the streaming data
is directed or non-directed.
For these reasons, we sustain the Examiner’s rejections of claims 1-13
and 15-26 as being anticipated by Karaoguz, and claim 14 as unpatentable
over Karaoguz and Cho.
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Claims 27-30
However, we agree with the Appellants’ arguments regarding claims
27-30 (App. Br. 6, 8; Reply Br. 3-4) which recite limitations directed to
activating the transmitter and receiver by applying a supply voltage, or
automatically feeding and/or reading streaming data to/from the network at
the moment the transmitter and/or receiver receives power via a supply
voltage.
The Examiner does not direct us to a sufficient factual basis, and does
not sufficiently explain how Karaoguz’s broadcasting system that is initiated
based on an activating signal describes: 1) activating the transmitter and
receiver by applying a supply voltage; 2) automatically feeding data to the
network at the moment the transmitter receives power via a supply voltage;
or 3) automatically reading data from the network at the moment the
receiver receives power via a supply voltage. Ans. 5-6, 11 (citing ¶¶ 0044-
0056, 0061, 0066; Figs. 1A, 1B).
For these reasons, we cannot sustain the Examiner’s rejection of
claims 27-30 as being anticipated by Karaoguz.
DECISION
We AFFIRM the Examiner’s rejection of claims 1-26.
We REVERSE the Examiner’s rejection of claims 27-30.
TIME PERIOD
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).
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AFFIRMED-IN-PART

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