Ex Parte Jones et al

Patent Trial and Appeal Board

Mar 31, 2016

13095685 (P.T.A.B. Mar. 31, 2016)

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
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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
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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.
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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).
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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).
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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
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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).
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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.
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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
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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
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