Ex Parte Hetzel et alDownload PDFPatent Trial and Appeal BoardOct 16, 201311106030 (P.T.A.B. Oct. 16, 2013) Copy Citation 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 Appeal 2011-002579 Application 11/106,030 2 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 Appeal 2011-002579 Application 11/106,030 3 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 Appeal 2011-002579 Application 11/106,030 4 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 Appeal 2011-002579 Application 11/106,030 5 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 Appeal 2011-002579 Application 11/106,030 6 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. Appeal 2011-002579 Application 11/106,030 7 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). Appeal 2011-002579 Application 11/106,030 8 AFFIRMED-IN-PART tj Copy with citationCopy as parenthetical citation