Ex Parte Wee et al

Board of Patent Appeals and Interferences

Aug 7, 2009

10226497 (B.P.A.I. Aug. 7, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte SUSIE J. WEE, JOHN G. APOSTOLOPOULOS,
and WAI-TIAN TAN
____________________

Appeal 2008-004393
Application 10/226,497
Technology Center 2400
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Decided: August 7, 2009
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Before LEE E. BARRETT, JOHN A. JEFFERY, and JAMES R. HUGHES,
Administrative Patent Judges.

HUGHES, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1-54. We have jurisdiction under 35 U.S.C. § 6(b)
(2002).
We reverse the Examiner’s rejection.

Appellants’ Invention
Appellants invented a method and system for streaming media data
over a network in an order selected according to the performance
characteristics of the network path used for streaming. (Spec. 3, ll. 2-5.)1

Claim
Independent claim 1 further illustrates the invention. It reads as
follows:
1. A method of streaming media data in a network,
said method comprising:
accessing media data comprising blocks of data; and
streaming said blocks of data in an order that is selected
according to performance characteristics of a path used for said
streaming.

References
The Examiner relies on the following references as evidence of
unpatentability:

1 We refer to Appellants’ Specification (“Spec.”), Appeal Brief (“App. Br.”)
dated May 7, 2007, and Reply Brief (“Reply Br.”) dated October 31, 2007.
We also refer to the Examiner’s Answer (“Ans.”) mailed August 27, 2007.
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Weaver US 6,112,226 Aug. 29, 2000

Wen US 2003/0193893 A1 Oct. 16, 2003
Filed Apr. 30, 2001

Rejections
The Examiner rejects claims 1-6, 9-20, 22-29, 31-38, 40-45, 47-49,
and 51-54 under 35 U.S.C. § 102(e) as anticipated by Wen.
The Examiner rejects claims 7, 8, 21, 30, 39, 46, and 50 under 35
U.S.C. § 103(a) as unpatentable over Wen and Weaver.

Appellants’ Contentions
Appellants contend that the Examiner improperly rejected the claims.
Specifically, Appellants contend that the invention is not anticipated by Wen
because Wen does not disclose the order in which data blocks are streamed
depends on the performance characteristics of the path on which the blocks
are streamed, or on the results of on time delivery predictions. (App. Br. 9.)
Appellants also contend that the invention is not obvious in view of Wen and
Weaver because Wen and Weaver do not teach the order in which data
blocks are streamed depends on the performance characteristics of the path
on which the blocks are streamed, or on the results of on time delivery
predictions. (App. Br. 12.)

Examiner’s Findings and Conclusions
The Examiner found that that Wen discloses each feature of
Appellants’ invention (as claimed in independent claims 1, 11, 27, 36, 41,
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and 48, and dependent claims 2-6, 9, 10, 12-20, 22-26, 28, 29, 31-35, 37, 38,
40, 42-45, 47, 49, and 51-54), in particular, that packets are streamed one
after another (in an order) with a delay or rate limiting function according to
network conditions. (Ans. 4-8, 10-12.) The Examiner also found that Wen
and Weaver teach each feature of Appellants’ claims 7, 8, 21, 30, 39, 46, and
50. (Ans. 9-10.)

ISSUES
Based on Appellants’ contentions, as well as the findings and
conclusions of the Examiner, the issue before us is as follows.
Did Appellants establish that the Examiner erred in determining Wen
discloses each feature of Appellants’ invention, in particular, streaming data
in an order that is selected or specified according to performance
characteristics of a network path?

FINDINGS OF FACT (FF)
We find that the following enumerated findings are relevant to the
rejections under review and are supported by at least a preponderance of the
evidence. Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427 (Fed. Cir. 1988)
(explaining the general evidentiary standard for proceedings before the
Office).

Wen Reference
1. Wen describes streaming packets (blocks) of data in a particular
order – one after another. (¶¶ [0011], [0041]-[0044]; Figs. 1, 2.)
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2. Wen discloses monitoring network conditions to determine
congestion in a network path. (¶¶ [0011], [0012], [0041]-[0044].)
3. Wen discloses modifying the size of a congestion window for a
data stream, modulating bandwidths of traffic streams, and introducing a rate
limiting function into a connection path to increase the inter-packet delay,
i.e., slowing or delaying the data stream to avoid congestion. (¶¶ [0011],
[0012], [0027]-[0037], [0041]-[0044]; Figs. 1, 2.)
4. Wen does not explicitly disclose determining, selecting,
specifying, or modifying the order in which individual data packets (blocks)
are streamed.

PRINCIPLES OF LAW
Burden on Appeal
Appellant has the burden on appeal to the Board to demonstrate error
in the Examiner’s position. See In re Kahn, 441 F.3d 977, 985-86 (Fed. Cir.
2006) (“‘On appeal to the Board, an applicant can overcome a rejection by
showing insufficient evidence of prima facie obviousness or by rebutting the
prima facie case with evidence of secondary indicia of nonobviousness.’”)
(quoting In re Rouffet, 149 F.3d 1350, 1355 (Fed.Cir. 1998)).

Anticipation
Anticipation is a question of fact. In re Schreiber, 128 F.3d 1473,
1477 (Fed. Cir. 1997). Under 35 U.S.C. § 102, “[a] claim is anticipated only
if each and every element as set forth in the claim is found, either expressly
or inherently described, in a single prior art reference.” Verdegaal Bros.,
Inc. v. Union Oil Co. of Cal., 814 F.2d 628, 631 (Fed. Cir. 1987); see
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Perricone v. Medicis Pharm. Corp., 432 F.3d 1368, 1375 (Fed. Cir. 2005)
(citation omitted).

ANALYSIS
We decide the question of whether Appellants establish the Examiner
erred in determining Wen discloses each feature of Appellants’ invention, in
particular, streaming data in an order selected according to performance
characteristics of a network path. We will reverse the Examiner’s rejection
of claims 1-54 for the reasons that follow.
We agree with the Examiner that Wen describes streaming packets
(blocks) of data, and that the packets are streamed in a particular order – one
after another. (FF 1.) We also agree with the Examiner that Wen describes
monitoring network conditions to determine congestion in a network path.
(FF 2.) Based on the network conditions, Wen discloses modifying a
congestion window and increasing the inter-packet delay to slow or delay
the data stream to avoid congestion. (FF 2, 3.) Thus, as asserted by the
Examiner, Wen describes streaming data packets in a particular order – one
after another – as well as selecting how much delay occurs in the streaming
(i.e., selecting how fast or slowly the particular order of packets is
streamed).
Nonetheless, selecting how to stream a particular order of packets is
not the same as selecting or specifying the order of the packets themselves –
a feature recited in every independent claim. We cannot agree with the
Examiner that “a person of ordinary skill in the art would interpret changing
(i.e. modifying) an initial congestion window size for the traffic stream (i.e.
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packets that are streamed one after another (figure 2)), with selecting an
order in which the packets are sent.” Wen does not explicitly or inherently
disclose determining, selecting, specifying, or modifying the order of
streaming individual data packets. (FF 4.) Nor does the cited secondary
reference to Weaver cure this deficiency.
For the foregoing reasons, Appellants have persuaded us of error in
the Examiner’s anticipation and obviousness rejections of claims 1-54.
Accordingly, we will not sustain the Examiner’s rejection of claims 1-54.

CONCLUSION OF LAW
On the record before us, we find that Appellants have established that
the Examiner erred in determining that Wen discloses each feature of
Appellants’ invention, in particular, streaming data in an order that is
selected according to performance characteristics of a network path.

DECISION
We reverse the Examiner’s rejections of claims 1-54 under 35 U.S.C.
§§ 102(e) and 103(a).

REVERSED

dal

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