Ex Parte KuulusaDownload PDFPatent Trial and Appeal BoardMay 18, 201713935886 (P.T.A.B. May. 18, 2017) Copy Citation 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 2 Appeal 2016-007047 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? 3 Appeal 2016-007047 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. 4 Appeal 2016-007047 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 5 Appeal 2016-007047 Application 13/935,886 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 6 Appeal 2016-007047 Application 13/935,886 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 7 Appeal 2016-007047 Application 13/935,886 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. 8 Appeal 2016-007047 Application 13/935,886 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. 9 Appeal 2016-007047 Application 13/935,886 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 10 Appeal 2016-007047 Application 13/935,886 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 11 Appeal 2016-007047 Application 13/935,886 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 12 Copy with citationCopy as parenthetical citation