Adam J. Overton et al.

Patent Trials and Appeals Board

Mar 17, 2020

15245638 - (D) (P.T.A.B. Mar. 17, 2020)

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.
15/245,638 08/24/2016 ADAM J. OVERTON 170104-1702 1830
71247 7590 03/17/2020
Client 170101 c/o
THOMAS HORSTEMEYER, LLP
3200 WINDY HILL RD SE
SUITE 1600E
ATLANTA, GA 30339
EXAMINER
NAOREEN, NAZIA
ART UNIT PAPER NUMBER
2458
NOTIFICATION DATE DELIVERY MODE
03/17/2020 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):
docketing@thomashorstemeyer.com
uspatents@tkhr.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte ADAM J. OVERTON, BRIAN D. FISHER,
ISAAC J. SHEPARD, and JASON C. JENKS
____________________

Appeal 2018-006581
Application 15/245,638
Technology Center 2400
____________________

Before JENNIFER S. BISK, BARBARA A. BENOIT, and
JOHN D. HAMANN, Administrative Patent Judges.

HAMANN, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–20. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.2

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a). Appellant identifies the real party in interest as Amazon
Technologies, Inc. Appeal Br. 2.
2 Our Decision relies upon Appellant’s Appeal Brief (“Appeal Br.,” filed
Sept. 7, 2017), Reply Brief (“Reply Br.,” filed Mar. 26, 2018) and
Specification (“Spec.,” filed Aug. 24, 2016), as well as the Examiner’s
Answer (“Ans.,” mailed Feb. 9, 2018) and the Final Office Action (“Final
Act.,” mailed July 7, 2017).
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CLAIMED SUBJECT MATTER
Appellant’s claimed invention “relates to sending input commands to
an application over a network that may have variable latency
characteristics,” and in particular, to “restor[ing] the relative temporal
spacing between” the input commands. Spec. ¶¶ 8–9. Claim 1 is
representative of the subject matter on appeal and is reproduced below.
1. A system, comprising:
a first computing device; and
a first application executable in the first computing device,
wherein, when executed, the first application causes the first
computing device to at least:
initiate a remote session over a network with a
second application being executed in a hosted
environment by at least one second computing device;
receive a video stream associated with a video
signal being generated by the second application;
render the video stream on a display associated with
the first computing device;
capture a first input command associated with a first
input and a second input command associated with a
second input; and
transmit application input data comprising the first
input command and the second input command to the at
least one second computing device, the second input
command being provided to the second application after a
delay based at least in part on a latency characteristic of
the network.
REJECTIONS
(1) The Examiner rejected claims 1–20 for non-statutory double
patenting based on claims 1–30 of Overton (US 8,806,054 B1, issued Aug.
12, 2014) and claims 1–21 of Overton (US 9,454,282 B2, issued Sept. 27,
2016).
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(2) The Examiner rejected claims 1, 2, 4, 5, 13, 14, 16–18, and 20
under 35 U.S.C. § 103(a) as being unpatentable over the combination of
Gault (US 8,506,402 B2, issued Aug. 13, 2013) and Gourlay (US 7,680,038
B1, issued Mar. 16, 2010).
(3) The Examiner rejected claims 7–9, 11, and 12 under 35 U.S.C.
§ 103(a) as being unpatentable over the combination of Gault and McIntire
(US 2007/0250901 A1, published Oct. 25, 2007).
(4) The Examiner rejected claims 3, 6, 10, 15, and 19 under
35 U.S.C. § 103(a) as being unpatentable over the combination of Gault,
Gourlay, and McIntire.
OPINION
We have reviewed the Examiner’s rejections in light of Appellant’s
arguments that the Examiner errs. We address as necessary the Examiner’s
findings and Appellant’s arguments below.
A. DOUBLE PATENTING REJECTION
Appellant does not address the Examiner’s non-statutory double
patenting rejection. See generally Appeal Br. Nor are we aware of any
entered amendment addressing this rejection, and thus, the rejection is
before us. 37 C.F.R. § 41.31(c). Based on the foregoing, we summarily
affirm this rejection. See Hyatt v. Dudas, 551 F.3d 1307, 1313–14 (Fed. Cir.
2008) (finding that the Board may treat arguments the appellant fails to
make for a given ground of rejection as waived).
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B. § 103(a) REJECTIONS
1. Gault Combined With Gourlay
a. Claims 1 and 4
Appellant argues that the combination of Gault and Gourlay fails to
teach or suggest “transmit[ting] application input data comprising the first
input command and the second input command to the at least one second
computing device, the second input command being provided to the second
application after a delay based at least in part on a latency characteristic of
the network,” as recited in independent claim 1. Appeal Br. 5–8; Reply Br.
4–5. More specifically, Appellant argues that “Gourlay [instead] relates to
‘optimizing bandwidth usage while controlling latency.’” Appeal Br. 6
(quoting Gourlay, 1:7–8). To that end, Appellant argues that “Gourlay
merely discusses sending a timestamp that has been adjusted for
retransmission delay with a data packet.” Id. (citing Gourlay, 13:61–67).
Appellant adds that “while Gourlay discusses ‘latency,’ nothing in Gourlay
appears to show or suggest that ‘the second input command [is] provided to
the second application after a delay,’ much less that the delay is ‘based at
least in part on a latency characteristic of the network.’” Id. at 7.
The Examiner finds that the combination of Gault and Gourlay
teaches or suggests this limitation. Ans. 2–3; Final Act. 14. First, the
Examiner concludes that “the limitation is directed towards a delay based on
a latency characteristic of a network which exists in any network connected
system.” Ans. 3. Put differently, the Examiner concludes that “[t]he claim
limitation doesn’t require anything to create the delay, it only exists as a part
of the system.” Id.
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Second, the Examiner finds that Gourlay teaches the claimed delay.
Id. at 2–3. In particular, the Examiner finds that Gourlay teaches a client
“capturing input commands using an input device,” and communicating
them to a server over one or more network connections. Id. (citing Gourlay,
7:51–8:12). The Examiner finds that Gourlay teaches that these network
connections experience latency (i.e., delays in communicating data over the
connections). Id. at 3 (citing Gourlay, 9:4–33); Final Act. 14 (citing
Gourlay, 7:51–63, 8:30–67, 13:65–67) (finding that “Gourlay discloses
packet latency in an online gaming environment”). The Examiner also finds
that Gourlay teaches that “the input commands are sent in succession, [and]
a delay will always be provided between the commands.” Id.
We agree with the Examiner and find that the combination of Gault
and Gourlay teaches this limitation. For example, we agree that Gourlay
teaches capturing input commands at a client and communicating the
commands to a server over one or more network connections. Gourlay,
7:51–8:12. We also agree that Gourlay teaches that these connections
experience latency. Id. at 7:51–63, 8:30–67, 9:4–33, 13:65–67.
As the Examiner concludes, the disputed limitation does not require
anything specific about the delay, except that it is “based at least in part on a
latency characteristic of the network.” Appeal Br. 20 (reciting claim 1).
Thus, Gourlay’s system, which experiences latency, teaches the claimed
delay. Gourlay, 7:51–8:12, 8:30–67, 9:4–33, 13:65–67; In re Hiniker Co.,
150 F.3d 1362, 1369 (Fed. Cir. 1998) (finding “the name of the game is the
claim”); In re Self, 671 F.2d 1344, 1348 (CCPA 1982) (stating limitations
not appearing in the claims cannot be relied upon for patentability). Put
differently, Gourlay teaches that input commands (e.g., the claimed “second
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input command”) are transmitted over connections having latency, and thus,
are received at the server (e.g., the claimed “second computer device”) “after
a delay based at least in part on a latency characteristic of the network.”
Gourlay, 7:51–8:12, 8:30–67, 9:4–33, 13:65–67. We note that this latency
also thus delays when the second input command can be provided to the
second application. Id.
Accordingly, we sustain the Examiner’s § 103(a) rejection of claim 1,
as well as dependent claim 4, for which Appellant does not provide separate
arguments for patentability. Because we find that Gourlay teaches the
disputed limitation based on the finding discussed above, we do not reach
the Examiner’s additional findings about Gourlay’s teachings (e.g., sending
an echo value, alternating modes, and providing time for the buffer to
empty) and Appellant’s arguments in response thereto.
b. Claim 2
Appellant argues that the combination of Gault and Gourlay fails to
teach or suggest “wherein the delay preserves a relative temporal
relationship between the first input command and the second input
command,” as recited in dependent claim 2. Appeal Br. 8–10. More
specifically, Appellant argues that Gourlay merely teaches reordering
packets (e.g., commands) which were received out of sequence, through the
use of a noncontiguous buffer. Id. at 8–9 (citing Gourlay, 14:62–64, 14:66–
15:7, 15:26–30, 15:44–47); Reply Br. 7. According to Appellant, “nothing
in Gourlay appears to discuss . . . [a] ‘delay [that] preserves a relative
temporal relationship between the first input command and the second
input command.” Appeal Br. 9.
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The Examiner finds that the combination of Gault and Gourlay
teaches or suggests the disputed limitation. Ans. 4. More specifically, the
Examiner finds that Gourlay teaches reordering received data packets that
were received out of order. Id. (citing Gourlay, 14:68–15:13). The
Examiner finds that “[t]he reordering of the packets delays the packets that
are received out of order.” Id. Similarly, the Examiner finds that Gourlay
teaches “switching between two modes [of operation, which] helps to
preserve packet order and avoid dropped communications.” Id. (citing
Gourlay, 17:36–50). The Examiner finds that the delays from “detecting
non-contiguous packets (delayed input commands)” and reordering them
teaches “preserving a relative temporal relationship,” in accordance with the
disputed limitation. Id. The Examiner finds that the Specification describes
a comparable example of a relative temporal relationship being when “two
buttons may need to be pressed within a certain period of time to perform a
punch move successfully.” Id. (quoting Spec. ¶ 32). The Examiner finds
that the Specification discloses that “[i]f the second input command is
delayed by the network, but the first input command is not, the move may be
unsuccessful . . . . To remedy this, the server application may delay the first
input command to preserve the relative temporal relationship between the”
commands. Id.
We are persuaded that the Examiner errs. The disputed limitation
requires that “the delay preserves a relative temporal relationship between
the” input commands. Appeal Br. 20 (reciting claim 2). The Specification
provides an example which “preserve[s] the relative temporal relationship
between the first and second input commands” by calculating a delay to add
which is “based on the difference between the time period between the
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commands when generated in the client . . . and the time period between
when the commands are received by the server application.” Spec. ¶¶ 32–
33. In other words, this example from the Specification is focused on
preserving the amount of time between commands. Id. In contrast, the
delay the Examiner finds in Gourlay relates to the time needed to correct the
order of the packets, without regard to any specific time spacing between the
packets (e.g., commands). Gourlay, 14:68–15:13, 17:36–50. Nor do we
find that the act of reordering the packets teaches “preserv[ing] a relative
temporal relationship between the first input command and the second input
command,” in accordance with the broadest reasonable interpretation of this
limitation. Again, the Specification is focused on the amount of time
between commands. E.g., Spec. ¶¶ 32–33; In re Suitco Surface, Inc., 603
F.3d 1255, 1259–60 (Fed. Cir. 2010) (finding that although “the PTO must
give claims their broadest reasonable construction consistent with the
specification[,] . . . claims should always be read in light of the specification
and teachings in the underlying patent”) (citation omitted). Moreover, the
Specification describes reordering commands and adding delay as two
separate concepts. Spec. ¶ 20 (“The input commands may be reordered to a
correct sequence and delays may be inserted between commands to ensure
that they are interpreted correctly . . . .”).
Accordingly, we do not sustain the Examiner’s § 103(a) rejection of
dependent claim 2.
c. Claim 5
Appellant argues that the combination of Gault and Gourlay fails to
teach or suggest:
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wherein the delay is based at least in part a comparison of a first
time period and a second time period, the first time period being
between when the first input command was generated by the first
computing device and when the second input command was
generated by the first computing device and the second time
period being between when the first input command is received
by the at least one second computing device and when the second
input command is received by the at least one second computing
device,
as recited in claim 5. Appeal Br. 10–13. More specifically, Appellant
argues that Gourlay fails to teach or suggest “a comparison of a first time
period and a second time period,” as well as that “the delay is based at least
in part” thereon. Id. at 11–12. Appellant argues that “[i]nstead, Gourlay
merely discusses buffer reordering and lost packet detection through the use
of a noncontiguous buffer.” Id. at 12; see also id. at 11 (quoting Gourlay,
15:26–35, 15:57–60) (arguing Gourlay teaches reordering packets).
The Examiner finds that the combination of Gault and Gourlay
teaches or suggests the disputed limitation. Ans. 5. More specifically, the
Examiner finds that Gourlay teaches managing the latencies associated with
network connections by alternating between a STEADY mode (i.e., a mode
that uses less than the maximum available bandwidth to allow network
router buffers to drain, thereby reducing latency) and a PROBING mode
(i.e., a mode that “prob[es] for available bandwidth and maximizing
bandwidth usage while preventing latency from exceeding a certain level”).
Id. (citing Gourlay 9:4–33, 17:20–35). The Examiner finds that Gourlay
teaches alternating from the PROBING mode “when, for each connection,
the latency determined for the connection is greater than a latency threshold
for the connection (a latency trigger threshold) or if the minimum latency is
more than what the application can tolerate or when the time duration for the
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PROBING mode has expired.” Id. (quoting Gourlay, 21:24–29). The
Examiner finds that these portions of Gourlay teach that “[a] first time
period is compared with a latency threshold which is the second time period
to determine if a delay exists.” Id. at 5–6.
We are persuaded that the Examiner errs. The language of the
disputed limitation defines the time periods to be compared: (i) “a first time
period being between when the first input command was generated by the
first computing device and when the second input command was generated
by the first computing device” and (ii) a “second time period being between
when the first input command is received by the at least one second
computing device and when the second input command is received by the at
least one second computing device.” Appeal Br. 21 (reciting claim 5). The
portion of Gourlay cited by the Examiner for teaching the first time period
makes no mention of when commands were generated by the first computing
device, but instead merely teaches that “latency [is] determined for the
connection.” Gourlay, 21:24–29. Likewise, the portion of Gourlay cited by
the Examiner for teaching the second time period makes no mention of when
the commands are received by the second computing device, but instead
teaches having a latency threshold for the connection. Id. Thus, these
portions of Gourlay do not teach the claimed first and second time periods
for comparison. Id.
Accordingly, we do not sustain the Examiner’s § 103(a) rejection of
dependent claim 5.
d. Claims 13, 14, 16–18, and 20
Appellant argues that the combination of Gault and Gourlay fails to
teach or suggest “transmit[ting] the application input data including the
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individual input commands over a network to the at least one second
computing device in response to determining that the individual input
commands are ready to be transmitted,” as recited in independent claim 13.
Appeal Br. 13–15; Reply Br. 13–14. More specifically, Appellant argues
that “Gourlay [instead] relates to ‘optimizing bandwidth usage while
controlling latency.’” Appeal Br. 14 (quoting Gourlay, 1:7–8). To that end,
Appellant argues that Gourlay “discusses sending a timestamp that has been
adjusted for retransmission delay with a data packet.” Id. (citing Gourlay,
13:61–67). Appellant argues that Gourlay also “discusses adjusting the
bandwidth in response to receiving a message about a packet loss.” Reply
Br. 14; see also id. at 13 (citing Gourlay, 1:7–8, 9:8–16, 10:13–14, 11:20–
26) (reciting Gourlay’s teachings). However, Appellant argues that “[t]o the
extent that Gourlay discusses a bandwidth estimation module [(“BEM”)]
that optimizes usage of bandwidth,[] nothing in Gourlay” teaches or
suggests “transmit[ting] the application input data including the individual
input commands over a network to the at least one second computing device
in response to determining that the individual input commands are ready
to be transmitted.” Id. at 13–14.
The Examiner finds that the combination of Gault and Gourlay
teaches or suggests this limitation. Ans. 7. More specifically, the Examiner
finds that Gourlay teaches a BEM that provides a decreased available
bandwidth estimation to an application that “is then configured to
communicate data packets over the connection at a data rate corresponding
to” that estimate. Id. (citing Gourlay, 11:20–29). The Examiner finds that
Gourlay teaches that by reducing the data rate, a chance is provided to clear
the buffers. Id. The Examiner finds that Gourlay’s teachings of having “a
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buffer capable of maintaining packet transmission over a network,” teach the
disputed limitation. Id.
We are not persuaded that the Examiner errs. We agree with the
Examiner that Gourlay teaches a BEM that determines an available
bandwidth for configuring an application to transmit packets over a network
connection. Gourlay, 11:20–29; see also id. at 9:22–33 (teaching that BEMs
can be used by any system that sends data, such as client 104). As the
Examiner finds, this determination provides a bandwidth which allows for
the application’s packets (e.g., commands) to be transmitted so as to clear
the application’s buffer. Id. at 11:20–29. In other words, and as the
Examiner finds, Gourlay teaches transmitting the application input data
including the individual input commands (i.e., clearing the application’s
buffer) in response to determining a viable bandwidth of the connection for
configuring the application to transmit at (i.e., the commands are ready to be
transmitted once the connection is configured). Id. We are not persuaded by
Appellant’s arguments, as Appellant does not address in detail why these
findings fail to disclose the disputed limitation. See 37 C.F.R.
§ 41.37(c)(1)(iv); In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (holding
that “the Board reasonably interpreted Rule 41.37 to require more
substantive arguments in an appeal brief than a mere recitation of the claim
elements and a naked assertion that the corresponding elements were not
found in the prior art”).
Accordingly, we sustain the Examiner’s § 103(a) rejection of claim
13, as well as dependent claims 14, 16–18, and 20, for which Appellant does
not provide separate arguments for patentability.
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2. Gault Combined With McIntire
Appellant argues that the combination of Gault and McIntire fails to
teach or suggest
transmitting, by the first computing device, the input command and
a video frame identifier to the at least one second computing device,
the input command being provided to the application via the at least
one second computing device after a delay that accounts for a
latency characteristic of the network,
as recited in independent claim 7. Appeal Br. 15–18. In particular,
Appellant argues that McIntire fails to teach or suggest transmitting
“after a delay that accounts for a latency characteristic of the network.”
Id. at 18; Reply Br. 11. “Rather, McIntire merely discusses annotating
media streams with supplemental content such as tags for identifying and
retrieving subject matter conveyed by the media stream,” according to
Appellant. Appeal Br. 17; see also id. (citing McIntire ¶¶ 15, 158) (arguing
what McIntire teaches).
The Examiner finds that the combination of Gault and McIntire
teaches or suggests this limitation. Ans. 6. More specifically, the Examiner
finds that McIntire teaches “supplemental content [(e.g., an input
command)] that is associated with a media stream (video data) where a
segment identifier is associated with the supplemental content.” Id. (citing
McIntire ¶¶ 153, 155). The Examiner finds that McIntire teaches that “[t]he
identified segments can be determined in a frame-by-frame manner to
identify the information being conveyed by the media stream (video data).”
Id. (citing McIntire ¶ 158). The Examiner also finds McIntire teaches “[a]
delay [that] can be adjusted using one or more parameters while accessing
the supplemental content.” Id. (citing McIntire ¶ 140). Put differently, the
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Examiner finds that McIntire teaches “associating a frame-by-fame segment
identifier of a video output with an input command based on a delay to
account for latency in a network, and thus disclosing the claim limitation in
[its] entirety.” Id.
We are persuaded that the Examiner errs. The Examiner relies on
paragraph 140 of McIntire for teaching the claimed “delay that accounts for
a latency characteristic of the network.” Id. This paragraph, however,
relates to compensating for delay caused by a viewer’s reaction time when
viewing a media stream that depicts articles and signifying an interest in
accessing supplemental information about a depicted article. McIntire
¶ 140. There is no discussion of a latency characteristic of a network. Id.
Nor does the mere discussion of a delay teach a delay that “accounts” for the
network latency. Id.
Accordingly, we do not sustain the Examiner’s § 103(a) rejection of
independent claim 7, as well as claims 8, 9, 11, and 12, which depend
therefrom.
3. Gault Combined With Gourlay and McIntire
The Examiner rejected under 35 U.S.C. § 103(a) (i) dependent claims
3 and 6, which depend from independent claim 1; (ii) dependent claim 10,
which depends from independent claim 7; and (iii) dependent claims 15 and
19, which depend from independent claim 13, over the combination of
Gault, Gourlay, and McIntire. Final Act. 11–14. Appellant does not provide
separate arguments for the patentability of these dependent claims, but rather
argues that they are patentable based on Appellant’s arguments with respect
to the independent claims from which they depend. Appeal Br. 15.
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Accordingly, in light of our findings above for the independent
claims, we (i) sustain the Examiner’s § 103(a) rejection of dependent claims
3, 6, 15, and 19; and (ii) do not sustain the Examiner’s § 103(a) rejection of
dependent claim 10.
DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–20 Non-Statutory
Double Patenting
1–20
1, 2, 4, 5,
13, 14, 16–
18, 20
103(a) Gault, Gourlay 1, 4, 13, 14,
16–18, 20
2, 5
7–9, 11, 12 103(a) Gault, McIntire 7–9, 11, 12
3, 6, 10, 15,
19
103(a) Gault, Gourlay,
McIntire
3, 6, 15, 19 10
Overall
Outcome
1–20

TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED3

3 Because we have affirmed at least one ground of rejection with respect to
each claim on appeal, we affirm the Examiner’s decision. See 37 C.F.R.
§ 41.50(a)(1).