Ex Parte Riley et al

Patent Trial and Appeal Board

Feb 26, 2014

11782565 (P.T.A.B. Feb. 26, 2014)

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.
11/782,565 07/24/2007 Xavier D. Riley PD-207038 7790
20991 7590 02/27/2014
THE DIRECTV GROUP, INC.
PATENT DOCKET ADMINISTRATION
CA / LA1 / A109
2230 E. IMPERIAL HIGHWAY
EL SEGUNDO, CA 90245
EXAMINER
TELAN, MICHAEL R
ART UNIT PAPER NUMBER
2427
MAIL DATE DELIVERY MODE
02/27/2014 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 XAVIER D. RILEY and RANNY Q. SUE

____________

Appeal 2011-008050
Application 11/782,565
Technology Center 2400
____________

Before ELENI MANTIS MERCADER, JASON V. MORGAN, and
MICHAEL J. STRAUSS, Administrative Patent Judges.

MANTIS MERCADER, Administrative Patent Judge.

DECISION ON APPEAL

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Application 11/782,565

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STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 1-24. We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.
THE INVENTION
Appellants’ claimed invention is directed to a communication system
which includes a content management system receiving a popularity rating
and assigning a satellite category to a plurality of content files in response to
the popularity rating. A content distribution system communicates the
content to the user through satellite or terrestrial communication network.
See Abstract.
Independent claims 1 and 9, reproduced below, are illustrative of the
subject matter on appeal:
1. A method comprising:
storing a plurality of content files having headers for terrestrial
communication in a content repository associated with a content distribution
system;
determining a popularity rating of the plurality of content files;
determining a satellite asset allocation in response to the popularity
rating;
reformatting a header of a first content file of the plurality of content
files from a first header to a second header suitable for satellite broadcasting;
and
communicating the first content file with the second header to a user
device through a satellite instead of a terrestrial communication network in
response to the asset allocation.

9. A method comprising:
storing a plurality of content files having headers for terrestrial
communication in a content repository associated with a content
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distribution system;
determining a popularity rating of the plurality of content files;
assigning a satellite category or a broadband category to each of the plurality
of content files in response to the popularity rating;
in response to the satellite category, reformatting a header of a first
content file of the plurality of content files from a first header to a second
header suitable for satellite broadcasting, communicating the first content
file with the second header to a transport processing system, communicating
the content with the second header to a satellite from the transport
processing system, communicating the content to a user device through the
satellite; and
in response to the broadband category, communicating the content to
a content delivery network, communicating the content to a terrestrial
communication network from the content delivery network and
communicating content to the user device through the terrestrial
communication network.

REFERENCES and REJECTIONS
1. The Examiner rejected claims 1, 2, 4, and 6-8 under 35 U.S.C.
§ 103(a) as being unpatentable over Dureau (US 2003/0093806 A1;
published May 15, 2003) in view of Rodriguez (US 2004/0133907
A1; published Jul. 8, 2004) in view of Schiller (US 2002/0007491 A1;
published Jan. 17, 2002) and further in view of Dillon (US 5852721;
issued Dec. 22, 1998).
2. The Examiner rejected claim 3 under 35 U.S.C. § 103(a) as being
unpatentable over Dureau in view of Rodriguez in view of Schiller in
view of Dillon and further in view of Linden (US 2003/0009765 A1;
published Jan. 9, 2003).
3. The Examiner rejected claim 5 under 35 U.S.C. § 103(a) as being
unpatentable over Dureau in view of Rodriguez in view of Schiller in
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view of Dillon and further in view of Xiong (US 2007/0113246 A1;
published May 17, 2007).
4. The Examiner rejected claims 9-11 and 18-19 under 35 U.S.C.
§ 103(a) as being unpatentable over Dureau in view of Fujiwara (US
2002/0052969 A1; published May 2, 2002) in view of Miranz (US
2006/0037037 A1; published Feb. 16, 2006) in view of Schiller and
further in view of Dillon.
5. The Examiner rejected claims 12-14, 16, 20, 21, and 23under
35 U.S.C. §103(a) as being unpatentable over Dureau in view of
Fujiwara in view of Miranz in view of Schiller in view of Dillon and
further in view of Rodriguez.
6. The Examiner rejected claims 15 and 22 under 35 U.S.C. § 103(a) as
being unpatentable over Dureau in view of Fujiwara in view of
Miranz in view of Schiller in view of Dillon in view of Rodriguez and
further in view of Linden.
7. The Examiner rejected claims 17 and 24 under 35 U.S.C. § 103(a) as
being unpatentable over Dureau in view of Fujiwara in view of
Miranz in view of Schiller in view of Dillon in view of Rodriguez and
further in view of Xiong.

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ISSUE
The issue is whether the Examiner erred in finding that Dillon teaches
the limitation of “communicating the first content file with the second
header to a user device through a satellite instead of a terrestrial
communication network in response to the asset allocation,” as recited in
claim 1.

ANALYSIS
Appellants argue, inter alia, that the references, either alone or in
combination, do not teach the limitation of “determining a satellite asset
allocation in response to the popularity rating” and “communicating the first
content file with a second header to a user device through a satellite instead
of a terrestrial communication network in response to the asset allocation,”
as recited in claim 1 (App. Br. 10-11). In particular, Appellants argue that
Dillon teaches “encapsulating a packet in a special packet,” which is not a
teaching or suggestion to change a header from a terrestrial communication
network to a satellite network (App. Br. 9-10).
We agree with Appellants. Claim 1 recites “storing a plurality of
content files having headers for terrestrial communication in a content
repository associated with a content distribution system” and “reformatting a
header of a first content file of the plurality of content files from a first
header to a second header suitable for satellite broadcasting.” At best,
Dillon teaches adding a header to a content file for broadcasting by satellite
(col. 10, ll. 32-43), but does not teach or suggest modification of a content
file header from a first header to a second header suitable for satellite
broadcasting as required by claim 1.
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The Examiner finds Dillon teaches the use of headers for terrestrial
communication and reformatting a header from a first header to a second
header suitable for satellite transmission (Ans. 31). The Examiner further
finds that the satellite transmission includes stripping a header and adding a
tunneling header, which includes reformatting a first header to a second
header (Ans. 33).
We do not agree with the Examiner’s findings. Dillon teaches
tunneling a request packet inside another packet (col. 16, ll. 10-24). The
tunneling is performed on the request for satellite transmission, not on the
content packet that is returned by satellite transmission, as recited in claim 1.
The Examiner failed to identify how Dillon teaches or suggests reformatting
a header from a first header for terrestrial communication to a second header
suitable for a satellite transmission network (App. Br. 9-10). Dillon further
teaches an alternative route by modifying a content header to be routed
terrestrially to the hybrid terminal 110 (col. 16, ll. 57-64). In this scenario,
the terrestrial reply packet is reformatted to include a proper IP address of
the satellite interface so that it is recognized by the hybrid terminal 110, but
not transmitted via satellite (col. 16, ll. 57-64). The Examiner failed to
identify a teaching or suggestion in the prior art to change the header of a
stored content file from a terrestrial to satellite communication when the
content is to be transmitted via satellite.
Thus, we reverse the Examiner’s rejection of independent claim 1 and
for the same reason the rejection of independent claims 9 and 18. We also
reverse the Examiner’s rejections of dependent claims 2-8, 10-17, and 19-24
for the same reasons. We note that the additional references cited, either
alone or in combination, do not cure the above discussed deficiencies.
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CONCLUSION
The Examiner erred in finding that Dillon teaches the limitation of
“communicating the first content file with the second header to a user device
through a satellite instead of a terrestrial communication network in
response to the asset allocation,” as recited in claim 1.

NEW GROUND OF REJECTION

We newly reject claim 1 under 35 U.S.C. § 103(a) as being
unpatentable over Dillon in view of Rodriguez.
Dillon teaches storing a plurality of content files in an application
server 140 (col. 9, ll. 46-49) in a content repository associated with a content
distribution system (Fig. 1).
Dillon further teaches some applications may be automatically
selected for terrestrial communication, such as continuously running
applications including streaming applications for audio, video, and slide
shows (col. 17, lines 5-15). Dillon teaches that the data packages for
streaming applications can be detected by examining the header on the data
packet (col. 17, ll. 20-25), therefore, the UDP (user datagram protocol)
packet headers indicate terrestrial communication.
Dillon does not teach content files stored with headers for terrestrial
communication. However, we find one of ordinary skill in the art faced with
the design need for adding a header to a content file for transmission would
have either stored the content with the header or stored the content and
attached a header prior to transmission, because it is among a finite number
of identified, predictable solutions and the “person of ordinary skill has good
reason to pursue the known options within his or her technical grasp.” KSR
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Int’l Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007) (citing Graham v. John
Deere Co., 383 U.S. 1, 12 (1966)).
Thus, it would have been obvious to a person of ordinary skill in the
art at the time of the invention to store the content files stored with headers
for terrestrial communication to reduce the number of transmissions steps by
storing the content files with the transmission header, and to reduce costs for
streaming applications via relatively expensive satellite transmission (see
col. 17, ll. 12-15, stating that streaming applications occupy an inordinate
amount of satellite link which is prohibitively expensive for the user).
Dillon teaches that the satellite transmission can be used as backup for
terrestrial transmission, if the terrestrial link fails, and vice versa (col. 14, ll.
60-64). Dillon also teaches switching between satellite to terrestrial systems
due to overload or congestion (col. 14, ll. 53-59). However, Dillon does not
teach switching systems based on a popularity rating for a content file or
switching communication from terrestrial to satellite communication.
Rodriguez teaches a content delivery method that includes a manager
to allocate bandwidth due to popularity (i.e., a large number of requests for a
particular video or popular movie at the same time, at ¶ (0069)).
It would have been obvious to a person of ordinary skill in the art at
the time of the invention to construct the satellite/terrestrial transmission
system of Dillon with the determination of popularity rating for content
having a large number of requests and asset allocation according to the
rating to accommodate subscribers’ requests, as suggested by Rodriguez.
The asset allocation would include switching from terrestrial to satellite
transmission because Dillon suggests switching communication systems to
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avoid overload and congestion, which could occur from large numbers of
requests for popular content.
We note that Dillon does not specifically teach reformatting a header
of a first content file of the plurality of content files from a first header to a
second header suitable for satellite broadcasting and communicating the first
content file with the second header to a user device through a satellite
instead of a terrestrial communication network in response to the asset
allocation.
However, Dillon teaches that the satellite gateway 150 appends
headers 1020 and 1030 for satellite transmission (col. 10, ll. 50-53). It
would have been obvious to a person of ordinary skill in the art at the time
of the invention to reformat Dillon’s header for terrestrial transmission of
data with a second header suitable for satellite broadcasting to allow the
satellite to serve as backup to the terrestrial link when the terrestrial link is
overloaded or congested.
We note the Patent Trial and Appeal Board is a review body, rather
than a place of initial examination. We have rejected independent claim 1
based on our authority under 37 C.F.R. § 41.50(b). However, we have not
reviewed the remaining claims to the extent necessary to determine whether
these claims are patentable over prior art. We leave it to the Examiner to
determine the appropriateness of any further rejections.1

1 If there is further prosecution, the Examiner should consider whether there
is adequate support in the original Specification for the amendment dated
3/19/2010 or whether there a possible 112 1st paragraph rejection on the
basis of new matter.
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DECISION
The Examiner’s decision rejecting claims 1-24 is reversed.
This decision contains a new ground of rejection pursuant to
37 C.F.R. § 41.50(b). 37 C.F.R. § 41.50(b) provides that “[a] new ground of
rejection pursuant to this paragraph shall not be considered final for judicial
review.” 37 C.F.R. § 41.50(b) also provides that Appellants, WITHIN TWO
MONTHS FROM THE DATE OF THE DECISION, must exercise one of
the following two options with respect to the new ground of rejection to
avoid termination of the appeal as to the rejected claims:
(1) Reopen prosecution. Submit an appropriate
amendment of the claims so rejected or new Evidence relating
to the claims so rejected, or both, and have the matter
reconsidered by the examiner, in which event the prosecution
will be remanded to the examiner. . . .

(2) Request rehearing. Request that the proceeding be
reheard under § 41.52 by the Board upon the same record. . . .

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).

REVERSED
37 C.F.R. § 41.50(b)

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