Ex Parte Kuulusa

Patent Trial and Appeal Board

May 18, 2017

13935886 (P.T.A.B. May. 18, 2017)

United States Patent and Trademark Office
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.
13/935,886 07/05/2013 Mika Kuulusa P7299US00 6156
11764 7590
Ditthavong & Steiner, P.C.
44 Canal Center Plaza
Suite 322
Alexandria, VA 22314
05/22/2017 EXAMINER
BUKHARI, SIBTE H
ART UNIT PAPER NUMBER
2449
NOTIFICATION DATE DELIVERY MODE
05/22/2017 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
docket@dcpatent.com
Nokia. IPR @ nokia. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MIKA KUULUSA
Appeal 2016-007047
Application 13/935,8861
Technology Center 2400
Before ROBERT E. NAPPI, KALYAN K. DESHPANDE, and
DAVID M. KOHUT, Administrative Patent Judges.
KOHUT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF CASE2
This is a decision on appeal under 35 U.S.C. § 134(a) of the Final
Rejection of claims 1—20.3 We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 According to Appellant, the real party in interest is Nokia Corporation.
App. Br. 1.
2 Our Decision makes reference to Appellant’s Reply Brief (“Reply Br.,”
filed July 5, 2016), and Appeal Brief (“App. Br.,” filed October 13, 2015),
and the Examiner’s Answer (“Ans.,” mailed May 5, 2016) and Final Office
Action (“Final Act.,” mailed April 8, 2015).
3 Claims 21—48 have been cancelled.
Appeal 2016-007047
Application 13/935,886
INVENTION
The invention is directed to quick content channel discovery,
streaming content, and switching from one content stream to another content
stream, with minimal latency. Spec. 12; Abstract. The independent claims
on appeal are claims 1 and 11. Claim 1 is illustrative and is reproduced
below, with the limitations at issue emphasized.
1. A method comprising facilitating a processing of
and/or processing (1) data and/or (2) information and/or (3) at
least one signal, the (1) data and/or (2) information and/or (3) at
least one signal based, at least in part, on the following:
a buffering of one or more original content streams from
one or more provider sources to generate one or more buffered
content streams by at least one buffering service;
at least one determination of one or more requests from at
least one device to access at least one of the one or more original
content streams; and
in response to the one or more requests, an initiation of a
streaming of at least one of the one or more buffered content
streams from the at least one buffering service to the at least
one device in place of the at least one of the one or more
original content streams,
wherein the initiation of the streaming of the at least
one or more buffered content streams is further based on
user preference of a user of the at least one device, network
latency, content provider information, or a combination
thereof.
REFERENCES
Cohen
Luo
Evans
US 2006/0143669 A1
US 2008/0133766 A1
US 2012/0066404 A1
June 29, 2006
June 5, 2008
Mar. 15,2012
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Application 13/935,886
REJECTIONS AT ISSUE
Claims 1—8, 10-18, and 20 are rejected under 35 U.S.C. § 103(a) as
obvious over the combination of Cohen and Luo. Final Act. 4—11; Ans. 3—
10.
Claims 9 and 19 are rejected under 35 U.S.C. § 103(a) as obvious over
the combination of Cohen, Luo, and Evans. Final Act. 11—12; Ans. 10—11.
ISSUES
Did the Examiner err in finding that the combination of Cohen and
Luo teaches or suggests:
in response to the one or more requests, an initiation of a
streaming of at least one of the one or more buffered content
streams from the at least one buffering service to the at least
one device in place of the at least one of the one or more
original content streams,
wherein the initiation of the streaming of the at least one
or more buffered content streams is further based on user
preference of a user of the at least one device, network latency,
content provider information, or a combination thereof,
as recited in independent claim 1 and similarly recited in independent claim
11?
Did the Examiner err in finding it obvious to combine Cohen and
Luo?
Did the Examiner err in finding that the combination of Cohen, Luo,
and Evans teaches or suggests “a presentation of at least one mode indicator
representing the buffered mode of operation,” as recited in claim 9 and
similarly recited in claim 19?
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Application 13/935,886
ANALYSIS
We select claim 1 as representative of the group of comprising claims
1-8, 10-18, and 20 as Appellant has not argued any of the other claims with
particularity. 37 C.F.R. § 41.37(c)(l)(iv).4 Claim 1 recites
in response to the one or more requests, an initiation of a
streaming of at least one of the one or more buffered content
streams from the at least one buffering service to the at least one
device in place of the at least one of the one or more original
content streams.
The Examiner finds that the combination of Cohen and Luo teaches this
limitation. Final Act. 4-5; Ans. 3-4. Specifically, the Examiner finds that
Cohen teaches a buffering service that provides, upon request, buffered
content based on the original content. Final Act. 4; Ans. 3^4. The Examiner
further finds that Luo teaches initiating streaming of an appropriate track,
i.e., content stream, to a client device upon request from a client application
program. Final Act. 5; Ans. 4; see Luo 143. The Examiner finds that the
initiation occurs “based on the application level monitoring of the buffer.”
Final Act. 5; Ans. 4; see Luo 143.
Appellant disagrees with the Examiner’s findings and first argues that
Luo does not teach initiating streaming, but merely discloses monitoring a
buffer at the client device. App. Br. 6. Appellant also contends that while
Luo teaches initiation of the use of a buffer, Luo does not teach the initiation
of a stream. Id. at 7. Appellant further argues that Luo’s initiation is not
4 Appellant’s groupings of the claims on page 4 of the Appeal Brief are not
consistent with the arguments found in the Appeal Brief. Therefore, we use
the grouping listed here.
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Application 13/935,886
based on request, but rather is based on ‘“good or bad’ channels.” Id.', see
Luo 143.
We do not find Appellant’s arguments persuasive. First, the Examiner
finds that Luo’s request to change to a new track is based on the feedback
from the client application program on the client device, which would be a
request to initiate the streaming of the new track. See Ans. 12. We agree
with the Examiner’s rationale because changing to a new track requires the
initiation of a new stream, regardless of both the information in the new
stream and the quality of the new stream. Id.', see also Luo 44, 45.
Second, Appellant’s argument regarding whether the stream initiated
is buffered content or not is unpersuasive because Luo is relied on as
teaching initiating a stream. As such, Appellant’s argument is tantamount to
an attack on the references separately, even though the rejection is based on
the combined teachings of the references. Nonobviousness cannot be
established by attacking the references individually when the rejection is
predicated upon a combination of prior art disclosures. See In re Merck &
Co. Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
Third, Appellant’s argument regarding Luo’s initiation of streaming
being based on good/bad channels, rather than on a request is also
unpersuasive. The Examiner finds that the client device of Luo “initiate[s]
[a] request for the appropriate track,” based on monitoring the buffer. See
Ans. 12; Luo 143. Therefore, the initiation of the track is in response to a
request triggered by the buffer status. We agree with the Examiner findings.
We also note that the Examiner additionally relies on Cohen to teach the
“one or more requests.” Final Act. 4; Ans. 4; Cohen 139. Thus,
Appellant’s argument regarding whether the stream initiated is based on a
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request also is unpersuasive because, again, Luo is used only to teach
initiating a stream.
Appellant contends that Luo teaches monitoring of a buffer at the
client device and fails to disclose a “buffering service,” or buffered and
original content streams. App. Br. 6; Reply Br. 2—3; see Luo 143.
Appellant also argues that it is unclear whether Luo’s “appropriate track” is
buffered content. App. Br. 7; Reply Br. 3; see Luo 143.
Appellant’s arguments are not persuasive because Appellant addresses
Luo, where the Examiner relied upon Cohen. The Examiner relies on Cohen
to teach the buffering service, and buffered and original content streams. As
discussed supra, Luo is used only to teach the initiation of a stream. Final
Act. 4—5; Ans. 3^4; Cohen || 38—39.
Claim 1 additionally recites “wherein the initiation of the streaming of
the at least one or more buffered content streams is further based on user
preference of a user of the at least one device, network latency, content
provider information, or a combination thereof.” The Examiner finds that
Luo teaches initiating streaming of an appropriate track to a client mobile
device upon request from a client application program, based on the status of
a buffer, which relies on content provider information from the streaming
server, or based on network latency. Final Act. 5; Ans. 4. The Examiner
further finds that Luo discloses the concept of network latency through its
handling of data packets. Ans. 14; see Luo 143.
Appellant argues that it is unclear whether Luo’s “user preferences”
determine the initiation of streaming, and whether information from the
client program of Luo can be considered “content provider information.”
App. Br. 7; Reply Br. 3; see Luo 143. Appellant further contends that the
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Examiner is construing ‘“network latency’” too broadly in regard to data
packets and buffer size, rather than looking at how much time it takes for
data to be transmitted across a network. Reply Br. 3^4.
We do not find the Appellant’s arguments persuasive. The Examiner
finds that Luo teaches initiating streaming based on content provider
information and/or network latency. Ans. 13—14 (“The term OR is used by
applicant which is being used for either network latency or content provider
information.”). The Examiner further finds that the client program of Luo
monitors the buffer for good and bad channels, which is determined based
on the buffer status that tracks the download speed from the client server.
Id.; see Luo 143. One of ordinary skill in the art would understand the
server to be the content provider and, thus, the information provided by the
server to broadly be information from the content provider or content
provider information. Ans. 14. Also, the Examiner finds that Luo teaches
basing the initiation of streaming on the network latency. Final Act. 5; Ans.
4, 14; Luo 143. The Examiner further finds that Luo discloses other ways
to monitor the network including looking to the signal-to-noise levels at the
physical layer, packet loss at the logical layer, and delay and loss at the IP
(network) layer. Ans. 13; Luo 143. One of ordinary skill in the art would
recognize these alternative ways to monitor the network as monitoring
network latency because delay and loss at the IP (network) layer and packet
loss at the logical layer increase latency. Ans. 14. Thus, we agree with the
Examiner that Luo discloses initiating streaming (request to change to new
track would be a request to initiate streaming of the new track in place of the
old track) based on user preference of a device, content provider
information, network latency, or a combination thereof (client program
monitors the buffer for good and bad channels, which is determined based
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on content provider information and/or network latency). See Ans. 4—5, 12—
14; see also Luo H 43, 44, 45.
Combination of Cohen and Luo
Appellant argues that it would not have been obvious to combine Luo
with Cohen. App. Br. 9. Appellant provides two separate contentions to
support Appellant’s arguments. App. Br. 9. These contentions are
addressed below.
First, Appellant argues that Luo teaches away from a combination
with Cohen. App. Br. 9. Specifically, Appellant argues that Luo teaches
away from Cohen because Luo’s chunking technique is based on the
streamed content and is not scheduled, whereas Cohen’s buffering is
scheduled. App. Br. 9. We disagree with Appellant. “A reference may be
said to teach away when a person of ordinary skill, upon reading the
reference, would be discouraged from following the path set out in the
reference, or would be led in a direction divergent from the path that was
taken by the applicant.” In re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994).
Our reviewing court also guides that it is not enough to show that there are
differences between two references in arguing one reference teaches away
from the other. See In re Beattie, 91A F.2d 1309, 1312—13 (Fed. Cir. 1992).
Appellant has not provided sufficient evidence to show why one of ordinary
skill in the art would have been discouraged from simplifying the streaming
of Cohen using the encoded chunking technique of Luo nor has Appellant
provided sufficient evidence to show that the references would lead one of
ordinary skill in the art in a direction different than that taken by the
Appellant. As such, we do not find Appellant’s argument persuasive.
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Second, Appellant argues that the combination of Cohen and Luo
would not have been obvious to one of ordinary skill in the art because
Cohen and Luo are nonanalogous art. App. Br. 9. For instance, Appellant
argues that Cohen and Luo are nonanalogous art because Luo is directed to
buffering based on ‘“good or bad’” channels while Cohen is directed to
buffering based on multicast streaming that is not near any of the anchor
points of a stream. App. Br. 9. We disagree.
Two references are analogous art when they are: (1) from the same
field of endeavor as the claimed invention; or (2) reasonably pertinent to the
particular problem faced by the inventor, if the art is not from the same field
of endeavor. See In re Bigio, 381 F.3d 1320, 1325 (Fed. Cir. 2004); see also
In re Wood, 599 F.2d 1032, 1036 (CCPA 1979). Cohen and Luo are from
the same field of endeavor because they are both directed to the field of
streaming data. Furthermore, Cohen and Luo are both directed to the same
problem faced by Appellant, i.e., the problem of determining how to quickly
stream data (see Spec. 11.)
Lastly, the Examiner finds that one of ordinary skill in the art would
be motivated to combine the teachings of Cohen and Luo to “[simplify] the
streaming server and the client since each raw chunk [] is independently
encoded leading to independency between chunks and [] independency
between different files that contain different encoded chunks.” Final Act. 3,
5; Ans. 4 (citing to Luo 120). As such, the Examiner provides sufficient
motivation and Appellant has not explained sufficiently why the Examiner’s
analysis is incorrect.
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Accordingly, we sustain the Examiner’s rejection of claims 1-8,
10-18, and 20 under 35 U.S.C. § 103(a) as obvious over the combination of
Cohen and Luo.
Dependent Claims 9 and 19
Appellant argues, regarding dependent claims 9 and 19, that Evans
fails to overcome the deficiencies in the combination of Cohen and Luo and
requests reversal of the rejection. App. Br. 10—11. We do not find
Appellant’s arguments persuasive because we sustain the Examiner’s
rejection over the combination of Cohen and Luo. Therefore, we need not
reach whether Evans overcomes the deficiencies of those references.
Appellant also argues that it is unclear how the Examiner finds that
Evans’s function of being able to playback media describes, “presentation of
at least one mode indicator representing the buffered mode of operation,” as
recited in claim 9 and similarly recited in claim 19. Reply Br. 4. We do not
find Appellant’s arguments persuasive because Appellant mischaracterizes
the Examiner’s rejection. The Examiner finds that Evans teaches “at least
one input for selecting a buffered mode of operation at least one content
playback application,” and Luo teaches “presentation of at least one mode
indicator representing the buffered mode of operation.” Final Act. 11—12;
Ans. 10—11. Specifically, the Examiner finds that Evans discloses “CODEC
and playback function [], and [] buffers [] may be implemented in one or
more integrated circuits such as one or more Application Specific Integrated
Circuits (ASICs), one or more Field Programmable Gate Arrays (FPGAs), or
the like.” Ans. 14. The Examiner again cites to Luo’s “client device
[which] initiate[s] the request for the appropriate track, based upon the
application level monitoring of the buffer,” as teaching the “presentation of
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at least one mode indicator representing the buffered mode of operation.”
Final Act. 11; Ans. 10; Luo 143 (emphasis omitted). The Examiner finds
that one would be motivated to combine Cohen, Luo, and Evans to
advantageously differentiate between streams. Final Act. 12; Ans. 11.
Thus, Appellant is arguing Evans when the Examiner cited Luo for teaching
the disputed limitation.
For the reasons indicated above, we sustain the Examiner’s rejection
of claims 9 and 19 under 35 U.S.C. § 103(a) as obvious over the
combination of Cohen, Luo, and Evans.
CONCLUSION
The Examiner did not err in finding that the combination of Cohen
and Luo teaches or suggests:
in response to the one or more requests, initiation of a
streaming of at least one of the one or more buffered content
streams from the at least one buffering service to the at least
one device in place of the at least one of the one or more
original content streams,
wherein the initiation of the streaming of the at least one
or more buffered content streams is further based on user
preference of a user of the at least one device, network latency,
content provider information, or a combination thereof,
as recited in independent claim 1 and similarly recited in independent claim
11.
The Examiner did not err in finding it obvious to combine Cohen and
Luo.
The Examiner did not err in finding that the combination of Cohen,
Luo, and Evans teaches or suggests “a presentation of at least one mode
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indicator representing the buffered mode of operation,” as recited in claim 9
and similarly recited in claim 19.
DECISION
We AFFIRM the Examiner’s rejection of claims 1—20.
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)(iv).
AFFIRMED
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