Ex Parte Riley et alDownload PDFPatent Trial and Appeal BoardFeb 26, 201411782565 (P.T.A.B. Feb. 26, 2014) Copy Citation 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 Appeal 2011-008050 Application 11/782,565 2 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 Appeal 2011-008050 Application 11/782,565 3 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 Appeal 2011-008050 Application 11/782,565 4 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. Appeal 2011-008050 Application 11/782,565 5 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. Appeal 2011-008050 Application 11/782,565 6 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. Appeal 2011-008050 Application 11/782,565 7 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 Appeal 2011-008050 Application 11/782,565 8 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 Appeal 2011-008050 Application 11/782,565 9 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. Appeal 2011-008050 Application 11/782,565 10 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) rwk Copy with citationCopy as parenthetical citation