Ex Parte Jones et alDownload PDFPatent Trial and Appeal BoardMar 31, 201613095685 (P.T.A.B. Mar. 31, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 13/095,685 04/27/2011 Kenneth Jones 70336 7590 03/31/2016 SEED INTELLECTUAL PROPERTY LAW GROUP PLLC 701 FIFTH A VENUE SUITE 5400 SEATTLE, WA 98104 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. P2011-0l-23 (290110.443) 3113 EXAMINER TESFAYE, AKLIL M ART UNIT PAPER NUMBER 2423 MAILDATE DELIVERY MODE 03/31/2016 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 KENNETH JONES, RODNEY DAVIS, and ROBERT WALLEN Appeal2014-004091 Application 13/095,685 Technology Center 2400 Before JEAN R. HOMERE, JOHN A. EV ANS, and DANIEL J. GALLIGAN, Administrative Patent Judges. EV ANS, Administrative Patent Judge. DECISION ON APPEAL 1 Appellants2 seek our review3 under 35 U.S.C. § 134(a) from the Final Rejection of Claims 1-21 as obvious. App. Br. 2. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 Our Decision refers to Appellants' Appeal Brief filed November 11, 2013 ("App. Br."); Appellants' Reply Brief filed February 18, 2014 ("Reply Br."); Examiner's Answer mailed December 18, 2013 ("Ans."); and Final Office Action mailed April 23, 2013 ("Final Act"). 2 The real party in interest identified by Appellants is EchoStar Technologies L.L.C. App. Br. 1. 3 We have considered in this decision only those arguments Appellants actually raised in the Briefs. Any other arguments which Appellants could have made but chose not to make in the Briefs are deemed to be waived. See 37 C.F.R. § 41.37(c)(l)(iv). Appeal2014-004091 Application 13/095,685 STATEMENT OF THE CASE The claims relate to a system of automated monitoring and control modules individually connected to respective receiving devices and connected to a centralized monitoring device. See Abstract. An understanding of the invention can be derived from a reading of exemplary Claim 1, which is reproduced below with disputed limitations italicized and some formatting added: 1. A system for testing a plurality of receiving devices compnsmg: a plurality of testing devices, each testing device comprising: at least one processor; a memory coupled to the at least one processor; at least one input configured to be operably connected to at least one corresponding output of a receiving device; at least one signal processing circuit coupled to the at least one processor, the at least one signal processing circuit configured to process audio or video signals received from the receiving device at the at least one input; and at least one network communications module coupled to the at least one processor, and wherein the at least one processor is configured to: execute a testing program for the receiving device; monitor one or more output ports of the receiving device; store on the testing device one or more of audio signal data and video signal data from the one or more output ports of 2 Appeal2014-004091 Application 13/095,685 the receiving device as a result of executing the testing program; communicate from the testing device data indicating results of the monitoring to a remote monitoring system; and communicate from the testing device to the remote monitoring system at least some of the stored audio signal data or stored video signal data; wherein each testing device is operably connected via the respective at least one input of the testing device to a respective receiving device via the at least one corresponding output of the respective receiving device and each testing device is operably connected to a network switch via the at least one network communications module of the testing device; and wherein the central monitoring computer is operably connected to the network switch, the central monitoring computer configured to receive data indicating results of the monitoring and the at least some of the stored audio signal data and video signal data. References and Rejections The Examiner relies upon the prior art as follows: Vanderhoff et al. ("Vanderhoff') Hogyoku Le et al. ("Le") McKelvey et al. ("McKelvey") White et al. ("White") US 2008/0168520 Al US 2009/0031373 Al US 2009/0089854 Al US 2009/0244290 Al US 2009/0249428 Al 3 July 10, 2008 Jan.29,2009 Apr. 2, 2009 Oct. 1, 2009 Oct. 1, 2009 Appeal2014-004091 Application 13/095,685 Kirk et al. ("Kirk") US 2010/0053337 Al The Claims stand rejected as follows: Mar. 4, 2010 1. Claims 1 and 2 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Le, McKelvey, and Vanderhoff. Final Act. 2-5. 2. Claims 3, 6, 19, and 20 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Le, McKelvey, Vanderhoff, and Kirk. Final Act. 5-9. 3. Claim 4 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Le, McKelvey, Vanderhoff, and White. Final Act. 9-10. 4. Claims 5, 7-9, 12, 17, and 18 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Le and McKelvey,. Final Act. 10-14. 5. Claims 10 and 13-15 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Le, McKelvey, and Kirk. Final Act. 15-17. 6. Claims 11 and 16 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Le, McKelvey, Kirk, and White. Final Act. 17-19. 6. Claim 21 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Le, McKelvey, and Hogyoku. Final Act. 19-20. 4 Appeal2014-004091 Application 13/095,685 ANALYSIS We have reviewed the Examiner's rejections in light of Appellants' arguments that the Examiner has erred. We disagree with Appellants' conclusions. CLAIMS 1-3 AND 5-21 Appellants argue Claims 1-3 and 5-21 as a group. App. Br. 13-14. First, Appellants argue McKelvey does not teach "stor[ing] on the testing device one or more of audio signal data and video signal data from the one or more output ports of the receiving device as a result of executing the testing program," as recited in Claim 1. App. Br. 11. Appellants assert McKelvey teaches the digital television (DTV) testing module as being part of or in association with the digital television or the set-top box. App. Br. 11 (citing McKelvey i-f 1 7, Fig. 1 ); see also Reply Br. 16. Appellants further contend that McKelvey teaches internal DTV components transmitting data within the DTV to the DTV testing module at internal test points inside the DTV, rather than from "output ports," as recited in Claim 1. App. Br. 11 (citing McKelvey i-f 19, Fig. 1 ); see also Reply Br. 16-17. Appellants moreover argue McKelvey teaches that the data gathering module and storage module of the DTV testing device are also internal components of the digital television itself. Reply Br. (citing McKelvey i-fi-1 3 7, 3 8, 4 7, Fig. 1 ). Appellants then assert that the data gathering module and storage module of the DTV testing device do not store audio or video data from "output ports," as recited in Claim 1. Reply Br. (citing McKelvey i-fi-119, 37, 38, 47, Fig. 1). 5 Appeal2014-004091 Application 13/095,685 The Examiner finds McKelvey teaches that the DTV testing module may be located inside the digital television or in association with a set-top box outside the digital television. Ans. 22 (citing McKelvey i-fi-f 13, 17); see McKelvey i-f 17 ("[T]he DTV testing module 104 . .. may be located inside or outside of the DTV 108."). McKelvey teaches that the data gathering module of the DTV testing module stores streaming data. McKelvey i137. McKelvey further teaches that the storage module of the DTV testing module may store data received by the DTV testing module. Id. at i147. We agree with the Examiner that these teachings in McKelvey in context with McKelvey' s embodiment of the DTV testing module outside the digital television at least suggest "stor[ing] on the testing device one or more of audio signal data and video signal data from the one or more output ports of the receiving device as a result of executing the testing program," as recited in Claim 1. Ans. 22 (citing McKelvey i-fi-f 13, 17, 37, 38, 47). Second, Appellants argue McKelvey does not teach "communicat[ing] from the testing device to the remote monitoring system at least some of the stored audio signal data or stored video data," as recited in Claim 1. Appellants contend McKelvey teaches that the external monitoring, troubleshooting, controlling, calibrating and/or configuring device (MTC) device 150, 154 does not communicate to the MTC remote device 180 at least some of the store audio signal data or stored video signal data. App. Br. 12 (citing McKelvey i148, Fig. 1); see also Reply Br. 18. Appellants assert McKelvey teaches that any stored audio or video data is sent directly from the input/output (I/O) device 140 of the digital television to MTC remote device 180 without going through the MTC device 150, 154. App. Br. 12-13 (citing McKelvey i148, Fig. 1). 6 Appeal2014-004091 Application 13/095,685 Appellants' arguments are not persuasive. Paragraph 48 of McKelvey cited by the Examiner (Final Act. 4) states: The data received or generated by the testing control module 110 may be transmitted to the IIO device 140, which may transmit the information to a location external to the DTV testing module 104. Accordingly, in some embodiments, the data may be transmitted to a monitoring, troubleshooting, controlling, calibrating and/or configuring device located at a location local or remote to the DTV 108. For example, a third-party television repair vendor service technician may visit the premise of a consumer at which the DTV 108 may be located and access the data received or generated by the testing control module 110 through a monitoring, troubleshooting, controlling, calibrating and/or configuring device ("MTC device") 15 0, 154, 180 that the technician couples to the I/O device 140 in order to monitor the current real-time, near real-time or the past functionality of the DTV 108 to perform local troubleshooting, controlling, calibrating and/or configuring of the DTV 108. As another example, the technician may perform the troubleshooting, controlling, calibrating and/ or configuring of the DTV 108 through an MTC device 150, 154, 180 that the technician couples to a network coupled to the I/O device 140 in order to monitor the current real-time, near real-time or the past functionality of the DTV 108. McKelvey i-f 48 (emphasis added). The cited portion of McKelvey teaches that the data received by the DTV testing module 104 may be transmitted to a location external to the DTV testing module 104 such as the MTC device 150, 154, 180. Id. Contrary to Appellants' assertion, MTC device 150, 154 and MTC device 180 are different embodiments of a component that performs the same function. Id. There is no reason for the data to be transmitted from MTC device 150, 154 to MTC device 180 because the MTC device 150, 154 is 7 Appeal2014-004091 Application 13/095,685 relied upon by the Examiner to teach the "remote monitoring system," as recited in Claim 1, not the "testing device," recited in Claim 1. Final Act. 4. Rather, the Examiner relies upon the DTV testing module 104 as the "testing device," recited in Claim 1. Ans. 22 (citing McKelvey i-fi-f 13, 17). We agree with the Examiner McKelvey teaches "communicat[ing] from the testing device to the remote monitoring system at least some of the stored audio signal data or stored video data," as recited in Claim 1. Third, Appellants argue the Examiner's "reason ... to modify Le with the teaching of McKelvey is ... opposite to [the structure recited in] claim 1." App. Br. 13. Appellants note the Examiner's reason states, "the stored audio signal data or stored video signal data in order to provide an automated, internal monitoring, and troubleshooting and controlling the digital receiver." App. Br. 13 (quoting Final Act. 4) (emphasis added); see also Reply Br. 18. Appellants contend that the monitoring performed by the "testing device," recited in Claim 1, is external to the "receiving device." App. Br. 13; see also Reply Br. 18. The Examiner's motivation to combine Le and McKelvey is recited almost verbatim in Paragraph 3 of McKelvey, which states: Further, conventional DTV systems and methods typically provide only information about the general area in which a DTV may need troubleshooting, calibration and/or configuration. However, due to the complexity of the DTV, providing information about only a general area in which the DTV may need service may be inadequate and may lead to unnecessarily high troubleshooting costs. Finally, conventional systems and methods provide no mechanisms for automated, internal monitoring, troubleshooting and/or controlling the DTV. McKelvey i1 3 (emphasis added). 8 Appeal2014-004091 Application 13/095,685 We find Appellants interpret "internal" in the Examiner's motivation to combine out-of-context. McKelvey teaches "conventional DTV systems and methods typically provide only information about the general area in which a DTV may need troubleshooting, calibration and/or configuration." McKelvey i-f 3. McKelvey emphasizes that because of the complexity of a digital television, troubleshooting based on such inadequate information may be extensive and expensive. See id. McKelvey suggests in the context of the foregoing inadequacies of conventional systems that "internal monitoring" is intended to diagnose specific locations within the digital television. See id. at i-f 3; see id. at i-f 19 ("The DTV functionality module 102 transmits to the DTV testing module 104 data located at the one or more test points 106, 107 . .. at the input and/or output of one or more of the system sections or at intermediate points within system sections."). We agree with the Examiner this motivation taught in McKelvey is consistent with McKelvey's embodiments of "the DTV testing module 104 ... located inside or outside of the DTV 108." id. at i-f 17; Ans. 25. Accordingly, we are not persuaded the Examiner has erred in finding motivation to combine. In view of the foregoing, we are not persuaded that the Examiner has erred in rejection Claim 1. Appellants contend Claims 2--4 are patentable in view of their dependence from Claim 1. App. Br. 13; see also Reply Br. 18. Appellants further assert Claims 5-21 are patentable for the same reasons as Claim 1. App. Br. 13-14; see also Reply Br. 18-19. In view of the foregoing, we are not persuaded that the Examiner has erred in rejecting Claims 2, 3, and 5- 21. 9 Appeal2014-004091 Application 13/095,685 CLAIM4 Appellants argue the combination of Le, McKelvey, Vanderhoff, and White does not teach certain limitations recited in claim 4. App. Br. 14--16; see also Reply Br. 19-21. In particular, Appellants contend White does not teach a "testing device," a "testing environment," or a "testing program" as recited in Claim 4. App. Br. 15. Appellants assert White teaches a set-top box interfaced with a home automation system to control temperature of the home. App. Br. 15 (citing White Abstract, i-fi-f 13, 47--49, and 61). Appellants additionally argue that the software "event module" in White that activates or deactivates the air conditioner and heater in the home is part of the "set-top box" of White. App. Br. 15 (citing White Fig. 2); see also Reply Br. 21. Appellants contend that the "event module" and "set-top box" in White do not teach a "receiving device connected to the testing device," as recited in claim 4 because they are not separate components. App. Br. 15; see also Reply Br. 21. The Examiner finds White teaches the home automation system as the "testing device," recited in Claim 4. Ans. 24 (citing White i-fi-125-26); see White i125 ("triggering events detectable by the home automation system"). The Examiner further finds White teaches the event module within the set- top box, responsive to a triggering event of the home automation system, such as detection of an indoor temperature, causes activation or deactivation of a heater or air conditioner. Ans. 24 (citing White i1 4 7). We agree with the Examiner that the cited disclosure teaches "caus[ing] the temperature control unit to generate a signal to activate a heater or cooler within a testing environment of the respective receiving device connected to the testing 10 Appeal2014-004091 Application 13/095,685 device," as recited in Claim 4. Id. Accordingly, we are not persuaded that the Examiner has erred in rejecting Claim 4. DECISION The rejection of Claims 1-21under35 U.S.C. § 103(a) is AFFIRMED. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l). See 37 C.F.R. § 1.136(a)(l)(iv) (2013). AFFIRMED 11 Copy with citationCopy as parenthetical citation