Avaya Inc.

Patent Trials and Appeals Board

Jul 14, 2020

2019002608 (P.T.A.B. Jul. 14, 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.
14/734,085 06/09/2015 Mehmet Balasaygun 4366-733 4628
48500 7590 07/14/2020
SHERIDAN ROSS P.C.
1560 BROADWAY, SUITE 1200
DENVER, CO 80202
EXAMINER
EL-ZOOBI, MARIA
ART UNIT PAPER NUMBER
2652
NOTIFICATION DATE DELIVERY MODE
07/14/2020 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):
cjacquet@sheridanross.com
edocket@sheridanross.com
pair_Avaya@firsttofile.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte MEHMET BALASAYGUN and JOHN BUFORD
_____________

Appeal 2019-002608
Application 14/734,085
Technology Center 2600
____________

Before ST. JOHN COURTENAY III, JUSTIN BUSCH, and
CARL L. SILVERMAN, Administrative Patent Judges.

COURTENAY, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from a Final Rejection of
claims 1, 2, 4–14, 16, 17, and 19–22. Claims 3, 15, and 18 are canceled.
We have jurisdiction over the pending claims under 35 U.S.C. § 6(b).
We reverse.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42(a) (2018). According to Appellant, the real party in interest
is Avaya, Inc. See Appeal Br. 2.
Appeal 2019-002608
Application 14/734,085

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STATEMENT OF THE CASE2
Introduction
Appellant’s claimed invention relates generally to “data conservation
in electronic conferencing.” Spec. ¶ 1.

Evidence
The prior art relied upon by the Examiner as evidence is:
Name Reference Date
Inoue US 2008/0144949 Al June 19, 2008
Ruef et al. (“Ruef”) US 7,539,504 B2 May 26, 2009
Sethi et al. (“Sethi”) US 8,301,697 B2 Oct. 30, 2012
Kramarenko et al.
(“Kramarenko”)
US 2014/0098182 Al Apr. 10, 2014

Rejections
Rej. Claims
Rejected
35 U.S.C. § Reference(s)/Basis
A 1, 2, 5,
7–14, 16,
17, 19, 21,
22
103 Sethi, Ruef
B 4, 20 103 Sethi, Ruef, Inoue
C 6 103 Sethi, Ruef, Kramarenko

2 We herein refer to the Final Office Action, mailed Mar. 19, 2018 (“Final
Act.”); Appeal Brief, filed Aug. 20, 2018 (“Appeal Br.”); the Examiner’s
Answer, mailed Dec. 21, 2018 (“Ans.”); and the Reply Brief, filed Feb. 13,
2019 (“Reply Br.”).
Appeal 2019-002608
Application 14/734,085

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Rejection A of Independent Claims 1, 11, and 17 under § 103
Representative Independent Claim 1
1. A communication device, comprising:
a network interface;
a video sensor configured to capture a video image;
a video controller configured to receive a throttling
signal, via the network interface, from an endpoint receiving
the video image;
wherein the throttling signal comprises a conference
mode of a conference, the conference being provided by a host
and the conference comprising the video image provided by the
communication device and another conference portion provided
by another device; and
wherein, in response to the throttling signal, the video
controller adjusts an attribute of the capturing of the video
image by the video sensor, the attribute effecting the encoding
of the video image uploaded to the host via the network
interface for receipt, as a portion of the conference, by a
number of devices associated with a number of conference
participants, the conference comprising the video image as
adjusted.

Appeal Br. 10, “CLAIMS APPENDIX” (emphasis added regarding disputed
limitations).

Analysis
Under 35 U.S.C. § 103, we focus our analysis on the argued
limitations of claim 1 that we find are dispositive regarding Rejection A of
independent claims 1, 11, and 17.

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Application 14/734,085

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Issue: Did the Examiner err by finding that Sethi and Ruef
collectively teach or suggest the dispositive “throttling signal” limitation:
a video controller configured to receive a throttling
signal, via the network interface, from an endpoint receiving
the video image;
wherein the throttling signal comprises a conference
mode of a conference, the conference being provided by a host
and the conference comprising the video image provided by the
communication device and another conference portion provided
by another device; and
wherein, in response to the throttling signal, the video
controller adjusts an attribute of the capturing of the video
image by the video sensor, the attribute effecting the encoding
of the video image uploaded to the host via the network
interface for receipt, as a portion of the conference, by a
number of devices associated with a number of conference
participants, the conference comprising the video image as
adjusted[,]

within the meaning of independent claim 1?3 Appeal Br. 10 (emphasis
added), see also Final Act. 4–5.
The Examiner finds Sethi teaches “a video controller configured to
receive a throttling signal, via the network interface, from an endpoint
receiving the video image.” Final Act. 4 (citing Sethi, col. 7, lines 4–34).
However, in reviewing the Final Action (id.), we find the Examiner
does not identify the specific element or feature found in Sethi (at col. 7,
lines 4–34) that teaches or suggests the claimed “throttling signal.”
Claim 1.

3 We give the contested claim limitations the broadest reasonable
interpretation (BRI) consistent with the Specification. See In re Morris, 127
F.3d 1048, 1054 (Fed. Cir. 1997).
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In the Answer, the Examiner clarifies that the claimed “throttling
signal” is being read on the request described in Sethi (Col. 7, lines 4–34)
for a lower or higher bit rate or no video at all. Ans. 13 (emphasis added).
Turning to the evidence, we reproduce the cited portion of Sethi
below:
The segment might be encoded to a certain bit rate setting. Lower
bit rates might be more appropriate for participants who have a
lower bandwidth connection, or perhaps have a lower video
refresh rate, resolution, and or video size. Lower bit rates might
be more appropriate for participants who have limited available
processing power to process the incoming conference stream. In
one embodiment, the conference participant computing system
may dynamically monitor its ability to handle certain bit streams,
and request lower or higher bit rate conference streams as
appropriate. Participants with greater bandwidth, display, and
processing capabilities may request higher bit rate encoded
segments to more fully utility their capabilities to maximize
performance.
The segments might be encoded to a particular display
setting. For example, there might be segments encoded for
different screen sizes or resolutions, or perhaps based on whether
the display is progressive scan or interlaced. As one example,
there might be encoded segments that encoded a panoramic view
that may be consumed by participants that have the capability to
render a panoramic view. On the other hand, there might be
segments of the same conference, but with lower refresh rate and
resolution, for participants connected via a small personal digital
assistant. There might also be encoded segments of the
conference with no video at all to accommodate a few individuals
who are just listening into the conference with a device that has
little or no display capability. On the other hand, a participant
might be working from their home on another project and have
the conference window minimized. In that case, if there is no
need for the home computer to record the video, the home
computer might request encoded segments with no video at all.
Sethi, col. 7, ll. 4–34 (emphasis added).
Appeal 2019-002608
Application 14/734,085

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Appellant disagrees with the Examiner’s underlying factual findings
and ultimate legal conclusion of obviousness:
Sethi is silent as to a “video controller adjust[ing] an
attribute of the capturing of the video image by the video
sensor,” as required by claim l.
Additionally, Sethi is silent as to providing a “throttling
signal,” as claimed. Appellant submits that a user selecting one
particular stream, over another particular stream, fails to teach or
reasonably suggest a throttling signal that is used to alter the
content captured for the conference.
The teachings of Sethi are limited to an ability to select
one stream from several streams. It is a conference participant
that makes the decision as to which stream to select (see, Sethi,
col. 7, lines 10–16). Sethi may provide a selection option of a
stream but such a selection may be based on a viewer’s
preference or other motivation which, by happenstance, a need
for a particular bandwidth.
Appeal Br. 4 (alteration in original).

Claim Construction
The Throttling Signal
As an initial matter of claim construction, we focus our analysis on
the claim term “throttling signal.” Claim 1. Turning to the Specification
for context, we find non-limiting, exemplary descriptions, for example, at
paragraphs 7–9:
In one embodiment, a communication device is disclosed,
comprising: a network interface; a video sensor configured to
capture a video image; and a video controller configured to
receive a throttling signal via the network interface and in
response thereto, adjust an attribute of the video image, the
attribute effecting the bandwidth utilized to upload the video
image to a network via the network interface.
Spec. ¶ 7 (emphasis added).
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The embodiment described in paragraph 7 (id.) corresponds to
independent claim 1 (“A communication device”). Paragraphs 8 and 9 of
Appellant’s Specification describe alternative embodiments, corresponding
to independent claim 11 (“A method”) and independent claim 17 (“A
server”), respectively:
In another embodiment, a method is disclosed, comprising:
receiving a conference content from a first conference device;
broadcasting, via a network connection, a conference comprising
the conference content to a second conference device; receiving
a conference mode indicia from the second conference device;
and signaling the first conference device to alter the conference
content in accord with the conference mode indicia.
Spec. ¶ 8 (emphasis added).
In another embodiment a server is disclosed, comprising: a
network interface configured to receive a conference portion
comprising a video from a first device and transmit a conference
comprising the conference portion to a second device; a
processor, configured to receive via the network interface, a first
indicia of a presentation mode of the conference portion by the
second device and, in response to the first indicia, transmit to the
first device, via the network interface, a throttling signal.
Spec. ¶ 9 (emphasis added).
The Video Sensor
The Examiner reads the “video sensor” of claim 1 on a “multipoint
video conference system” found in Sethi. Final Act. 4; Ans. 4. However, in
reviewing the evidence, we find no literal “multipoint video conference
system” in Sethi. Presumably the Examiner is reading the “video sensor”
recited in claim 1 on the conference system shown in Sethi’s Figure 1, which
is described as “a physical conferencing data distributed system that includes
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a single conference data dispatch system that dispatches conference data to
multiple conference participant computing systems.” Sethi, col. 2, ll. 32–35.
In the absence of a more precise mapping from the Examiner, we read
the claimed “video sensor” on the various cameras that capture video in each
of the cited Sethi and Ruef references. 4,5
Sethi is directed to a “distributed system for distributing conferencing
data such as video, audio, and other conference data . . . [wherein] [t]he
conference data is segmented. Each segment is encoded to be suitable to a
particular class of participant computing systems.” Sethi, Abstract. We note
Sethi only mentions a literal “camera” once, at column 8, lines 15–16,
referring to “panoramic cameras.” Presumably, at least laptop computer
702B, as depicted in Sethi’s Figure 7, would also include a camera for
capturing video of each respective conference participant.
We note Ruef is directed to:
A method and system providing wireless personal telepresence
facilitating collaboration by two or more persons, each in
different locations, on a task at one of the locations and requiring
visualization by multiple persons. A portable wireless unit
captures/transmits video depicting the technician’s first-hand
field of view while keeping her hands free to perform the task.
Abstract (emphasis added).

4 See 37 C.F.R. § 1.104(c)(2) (“When a reference is complex or shows or
describes inventions other than that claimed by the applicant, the particular
part relied on must be designated as nearly as practicable. The pertinence
of each reference, if not apparent, must be clearly explained and each
rejected claim specified.”) (emphasis added).

5 Claim 1 recites “a video sensor configured to capture a video image.”
Accord Spec. ¶ 7, in which the video sensor is “configured to capture a video
image.”
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We note Ruef expressly depicts a video camera 30 (i.e., “video
sensor”) in Figure 2.

However, Appellant’s claim 1 further requires:
wherein, in response to the throttling signal, the video
controller adjusts an attribute of the capturing of the video
image by the video sensor, the attribute effecting the encoding
of the video image uploaded to the host via the network
interface for receipt, as a portion of the conference, by a
number of devices associated with a number of conference
participants, the conference comprising the video image as
adjusted.

In the Answer, the Examiner clarifies the mapping of the “video
controller” recited in claim 1. The Examiner now finds the “video
controller” is inherently taught by processor 802, in Figure 8 of Sethi. See
Ans. 13.
Turning to the evidence, we find the functions performed by Sethi’s
processor 802 are only described in general terms: e.g., “[a]s illustrated in
FIG. 8, in its most basic configuration, a computing system 800 typically
includes at least one processing unit 802 and memory 804.” Sethi, col. 11,
ll. 58–60 (emphasis added).
The Examiner finds “Sethi does not disclose adjusting an attribute of
the capturing of the video image by the video sensor.” Final Act. 5. The
Examiner turns to Ruef to teach or suggest what is found missing in Sethi.
Id.
However, instead of citing to the detailed description of Ruef as
evidence, the Examiner relies upon claim 5 of Ruef for teaching the
adjusting of “an attribute of the capturing of the video image by the video
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sensor,” as recited in claim 1. The Examiner finds:

Ruef discloses telepresence facilitating collaboration by
two or more persons (abstract), wherein [?] detects the available
bandwidth on the network and adjusts [the] frame rate and
picture quality associated with the video (claim 5 of the patent).
Therefore, it would have been obvious to one with
ordinary skill in the art before the filing date of the claimed
invention to modify Sethi in order to improve the system and
allow more predictable results.
Final Act. 5 (emphasis added).
Because the Examiner omits what specific element in Ruef adjusts the
frame rate and picture quality of the video, we reproduce claim 5 of Ruef
here: “The system as recited in claim 1, wherein the management console
detects the available bandwidth on the network and adjusts frame rate and
picture quality associated with the video.” (Emphasis added.)
We note claim 1 of Ruef (from which claim 5 depends) describes the
management console as an element that compresses video and audio: “a
management console disposed with the first person, the management console
for compressing video and audio generated by the first person and
transmitting the compressed video and audio over the network.” (Emphasis
added.)
Significantly, the management console in Ruef “detects the available
bandwidth on the network and adjusts frame rate and picture quality
associated with the video.” Ruef, col. 8, ll. 36–38 (emphasis added).
To the extent the Examiner modifies Sethi’s processor 802 with the
detection and adjustment functions performed by Ruef’s management
console that detects the available bandwidth on the network and adjusts the
frame rate and picture quality associated with the video, we find the
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Examiner has not fully explained how processor 802 in Sethi could be
modified to function as a video controller, as claimed.
Moreover, we find the management console described in Ruef’s
claim 1 adjusts the frame rate and picture quality associated with the video
based upon detection of the available bandwidth on the network, and not
based upon a throttling signal, as required by the express language of claim
1, and also by the similar language of claim 17:
a processor, configured to receive by the second device and via
the network interface, a first indicia of a presentation mode of the
conference portion selected by a user of the second device, in
response to the first indicia, transmit to the first device, via the
network interface, a throttling signal to cause a video sensor of
the first device to adjust the capturing of an image captured
thereby.
Claim 17 (emphasis added).
As also persuasively argued by Appellant: “Appellant submits that a
user selecting one particular stream, over another particular stream, [in
Sethi] fails to teach or reasonably suggest a throttling signal that is used to
alter the content captured for the conference.” Appeal Br. 4 (emphasis
added).
We find the Examiner has not fully developed the record to show how
the “request” found in Sethi (Col. 7, lines 4–34), when modified by Ruef,
teaches the disputed “throttling signal” wherein, in response to the
throttling signal, the video controller adjusts an attribute of the capturing
of the video image by the video sensor, the attribute effecting the encoding
of the video image uploaded to the host via the network interface for receipt,
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as recited in independent claim 1, and recited in similar form having
commensurate scope in independent claim 17.6 (emphasis added).
Independent method claim 11 is somewhat broader than claims 1 and
17, and recites a step of signaling instead of a literal throttling signal to
cause a video sensor of the first device to adjust the capturing of an image
captured thereby:
receiving a conference mode indicia from the second conference
device, wherein the conference mode indicia is associated with
the conference content as displayed on the second conference
device; and

signaling the first conference device to alter the capturing of the
video portion captured by a video sensor of the first conference
device providing conference content in accord with the
conference mode indicia.
Claim 11 (emphasis added).
Even though the adjective “throttling” is omitted from the “signaling”
recited in method claim 11, we find the positively-recited step of “signaling”
in claim 11 is not taught or suggested by the Examiner’s relied-upon
combination of Sethi and Ruef, for essentially the same reasons argued by
Appellant in the Briefs, as further discussed above.

6 We note the Board “is basically a board of review — we review . . .
rejections made by patent examiners.” Ex parte Gambogi, 62 USPQ2d
1209, 1211 (BPAI 2001). “The review authorized by 35 U.S.C. § 134 is not
a process whereby the examiner . . . invite[s] the [B]oard to examine the
application and resolve patentability in the first instance.” Ex parte Braeken,
54 USPQ2d 1110, 1112 (BPAI 1999).

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Therefore, we are constrained on this record to reverse the Examiner’s
obviousness Rejection A of each independent claim 1, 11, and 17 on appeal.
Because we have reversed the Examiner’s Rejection A of each independent
claim on appeal, we also reverse the Examiner’s Rejection A of each
associated dependent claim.

Rejection B of claims 4 and 20, and Rejection C of claim 6
In light of our reversal of Rejection A of independent claims 1, 11,
and 17, supra, we also reverse obviousness rejection B of claims 4 and 20
and Rejection C of claim 6. On this record, the Examiner has not shown
how the additionally cited secondary references overcome the
aforementioned deficiencies with the base combination of Sethi and Ruef, as
discussed above regarding independent claims 1, 11, and 17.
Accordingly, we reverse the Examiner’s obviousness rejections A, B,
and C of all claims 1, 2, 4–14, 16, 17, and 19–22 on appeal.

Conclusion
The Examiner erred in rejecting claims 1, 2, 4–14, 16, 17, and 19–22,
as being obvious under 35 U.S.C. § 103, over the cited combinations of
references.

Appeal 2019-002608
Application 14/734,085

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DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 2, 5,
7–14,
16, 17,
19, 21, 22
103 Sethi, Ruef 1, 2, 5,
7–14,
16, 17,
19, 21, 22
4, 20 103 Sethi, Ruef, Inoue 4, 20
6 103 Sethi, Ruef,
Kramarenko
6
Overall
Outcome
1, 2,
4–14, 16,
17, 19–22

REVERSED