COMCAST CABLE COMMUNICATIONS, LLC

Patent Trials and Appeals Board

Aug 13, 2020

13829628 - (D) (P.T.A.B. Aug. 13, 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.
13/829,628 03/14/2013 Weidong Mao 26141.0091U1 1945
16000 7590 08/13/2020
Comcast
c/o Ballard Spahr LLP
999 Peachtree Street, Suite 1000
Atlanta, GA 30309
EXAMINER
HLAING, SOE MIN
ART UNIT PAPER NUMBER
2451
NOTIFICATION DATE DELIVERY MODE
08/13/2020 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):
USpatentmail@ballardspahr.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte WEIDONG MAO, ELAD NAFSHI,
MARK ANDREW VICKERS, GREGORY ALLEN BROOME,
SREE KOTAY, and BRUCE BRADLEY
Appeal 2019-000921
Application 13/829,628
Technology Center 2400

Before DEBRA K. STEPHENS, BRADLEY W. BAUMEISTER, and
MICHAEL J. STRAUSS, Administrative Patent Judges.

Opinion for the Board filed by Administrative Patent Judge STEPHENS.

Opinion Dissenting filed by Administrative Patent Judge BAUMEISTER.

STEPHENS, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–3, 6, 7, 14–16, 18, and 21–28 (see
Final Act. 1). We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as Comcast Cable
Communications, LLC (Appeal Br. 1).
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Application 13/829,628

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CLAIMED SUBJECT MATTER
The claims are directed to methods and systems for dynamic data
management (Spec. ¶ 2). Claim 1, reproduced below, is illustrative of the
claimed subject matter:
1. A method implemented by one or more computing devices,
comprising:
transmitting, to a user device, first data to be stored locally
in a storage medium of the user device;
storing, in a plurality of remote locations relative to the
user device, second data, wherein the first data and the second
data relate to the same content, and wherein a quality level of the
first data is different from a quality level of the second data;
generating a manifest comprising location information
relating to the first data and each remote location of the plurality
of remote locations corresponding to the second data, wherein
the manifest comprises a cost function relating to network
bandwidth, and wherein the cost function comprises a calculation
related to determining whether to request, by the user device, the
second data from a remote location of the plurality of remote
locations or access the first data from the storage medium of the
user device;
transmitting, to the user device, the manifest; and
receiving, based on the manifest, a request for
transmission of the second data.

REFERENCES
The Examiner relies upon the following prior art:
Name Reference Date
Gautier
Robert
Lu
Brueck
US 2011/0072075 A1
US 2011/0082914 A1
US 2011/0087842 A1
US 2014/0250230 A1
Mar. 24, 2011
Apr. 7, 2011
Apr. 14, 2011
Sept. 4, 2014

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REJECTIONS
Claims 1–3, 6, 7, 14–16, 18, 21–26, and 28 stand rejected under
35 U.S.C. § 103(a) as being unpatentable over Gautier, Robert, and Brueck
(Final Act. 4–24); and
Claim 27 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Gautier, Robert, Brueck, and Lu (id. at 24–25).
We have only considered those arguments that Appellant actually
raised in the Briefs. Arguments Appellant could have made but chose not to
make in the Briefs have not been considered and are deemed to be waived
(See 37 C.F.R. § 41.37(c)(1)(iv) (2017).

OPINION
35 U.S.C. § 103(a): Claims 1–3, 6, 7, 14–16, 18, 21–26, and 28
Appellant contends the invention, as recited in claim 1, is not obvious
over Gautier, Robert, and Brueck (Appeal Br. 6). The issue presented by the
arguments is whether the combination of Gautier, Robert, and Brueck
teaches or suggests “wherein the cost function comprises a calculation
related to determining whether to request, by the user device, the second
data from a remote location of the plurality of remote locations or access the
first data from the storage medium of the user device,” as recited in claim 1.
Appellant contends, “the clients described in Brueck cannot choose to
‘access the first data from the storage medium of the user device’ instead of
‘request[ing] the second data from a remote location’ as claimed. Therefore,
Brueck fails to disclose this element” (Appeal Br. 6, emphasis added). We
do not find Appellant’s argument persuasive. Specifically, Appellant has
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not set forth any reasoning as to why “or” as recited in the claims, and as
explained by the Examiner, should be construed as “instead of.”
The Examiner sets forth that the claim may be reasonably interpreted
as:
comprises two claim elements conjoined with a conjunction
“or”, and therefore the limitation may be reasonably interpreted
as:
“(i) wherein the cost function comprises a calculation
related to determining whether to request, by the user
device, the second data from a remote location of the
plurality of remote locations” or
“(ii) wherein the cost function comprises a calculation
related to determining whether to access the first data
from the storage medium of the user device”
(Ans. 3 (emphasis in original)). The term “or” is construed in its “common
usage as designating alternatives” (see Kustom Signals, Inc. v. Applied
Concepts, Inc., 264 F.3d 1326, 1331 (Fed. Cir. 2001)).
Appellant has identified no description in the Specification that “or”
has been defined with a different meaning (see generally Appeal Br., Reply
Br.). Appellant’s entire argument is:
Brueck discloses a “cost management server” that generates
“manifests” for “adaptive streaming” based on various “costs.”
Brueck at paragraphs [0027, 0032, and 0034]. Even if, for the
sake of argument, this discloses a “cost function,” Brueck does
not relate to “determining whether to request, by the user device,
the second data from a remote location of the plurality of remote
locations to the user device or access the first data from the
storage medium of the user device” as claimed. It appears that
the “costs” described in Brueck relate only to retrieving “media
slices” from a “media server.” Thus, the clients described in
Brueck cannot choose to “access the first data from the storage
medium of the user device” instead of “request[ing] the second
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data from a remote location” as claimed. Therefore, Brueck fails
to disclose this element.
(App. Br. 6).
Appellant does not proffer any additional arguments in response to the
Examiner’s Answer, in the Reply Brief (see generally Reply Br.). Indeed,
Appellant provides no cites to their Specification, nor does Appellant
provide any evidence or argument as to why the Examiner’s interpretation is
incorrect (see generally App. Br.; Reply Br.). As such, we discern no basis
for determining Appellant intended its usage of “or” somehow to embrace
“instead of.”
Appellants are reminded that a general discussion of the prior art
relied upon by the Examiner in the rejection and a statement that the prior art
does not disclose the claim, as interpreted by Appellant, are not tantamount
to a responsive argument. Such a response to the Examiner’s findings is
insufficient to persuade us of Examiner error, as mere attorney arguments
and conclusory statements that are unsupported by factual evidence are
entitled to little probative value (In re Geisler, 116 F.3d 1465, 1470 (Fed.
Cir. 1997); see also In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984); Ex
parte Belinne, No. 2009-004693, slip op. at 7–8 (BPAI Aug. 10, 2009)
(informative); see also In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011)
(“[W]e hold 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.”); cf. In re Baxter Travenol Labs., 952 F.2d 388,
391 (Fed. Cir. 1991) (“It is not the function of this court to examine the
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claims in greater detail than argued by an appellant, looking for [patentable]
distinctions over the prior art.”)).
When a claim covers several alternatives, the claim may be
unpatentable if any of the alternatives within the scope of the claim are
taught by the prior art (see Brown v. 3M, 265 F.3d 1349, 1351 (Fed. Cir.
2001)). Appellant has proffered insufficient evidence or argument to
persuade us the Examiner’s interpretation is in error. In light of that
interpretation, the argued claim does not require “determining whether to
request, by the user device, the second data from a remote location of the
plurality of remote locations to the user” instead of “access[ing] the first data
from the storage medium of the user device.” Rather, under the Examiner’s
interpretation, the argued claim only requires one of the recited alternatives.
More specifically, the Examiner need only show the combination of
references teaches or suggests determining “whether to request . . . [(i)] the
second data from a remote location of the plurality of remote locations or
[(ii)] access the first data from the storage medium of the user device.” The
Examiner has set forth where Brueck discloses “wherein the cost function
comprises a calculation related to determining whether to request, by the
user device, the second data from a remote location of the plurality of
remote locations” (see Final Act. 8; Ans. 4). Appellant has not persuaded us
Brueck fails to teach this limitation. Accordingly, because Brueck discloses
at least one of the alternatives required by the claim, we determine the
Examiner did not err in rejecting the claim.
Accordingly, we are not persuaded the Examiner erred in finding the
combination of Gautier, Robert, and Brueck teaches, suggests, or otherwise
renders obvious the limitation as recited in independent claim 1. Appellant
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does not argue independent claims 14 and 21 separately, instead relying on
the reasoning set forth for independent claim 1 (see Appeal Br. 6).
Dependent claims 2, 3, 6, 7, 15, 16 18, 22–26, and 28, also were not
separately argued. Thus, claims 2, 3, 6, 7, 14–16 18, 21–26, and 28 fall with
independent claim 1, Therefore, we sustain the rejection of claim 1–3, 6, 7,
14–16, 18, 21–26, and 28 under 35 U.S.C. § 103(a) for obviousness over
Gautier, Robert, and Brueck.

35 U.S.C. § 103(a): Claim 27
Additionally, we are not persuaded the Examiner erred in finding the
combination of Gautier, Robert, Brueck, and Lu teaches, suggests, or
otherwise renders obvious the limitation as recited in claim 27, not
separately argued (see id. at 6–7). Therefore, we sustain the rejection of
claim 27 under 35 U.S.C. § 103(a) for obviousness over Gautier, Robert,
Brueck, and Lu.

CONCLUSION
We affirm the rejection of claims 1–3, 6, 7, 14–16, 18, 21–26, and 28
under 35 U.S.C. § 103(a) as being unpatentable over Gautier, Robert, and
Brueck.
We affirm the rejection of claim 27 under 35 U.S.C. § 103(a) as being
unpatentable over Gautier, Robert, Brueck, and Lu.

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DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis  Affirmed Reversed
1–3, 6, 7,
14–16, 18,
21–26, 28
103(a) Gautier, Robert,
Brueck
1–3, 6, 7,
14–16, 18,
21–26, 28

27 103(a) Gautier, Robert,
Brueck, Lu
27
Overall
Outcome
  1–3, 6, 7,
14–16, 18,
21–28

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)).
AFFIRMED

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BAUMEISTER, Administrative Patent Judge, dissenting.
The dispositive question on appeal is this: what is the broadest
reasonable interpretation of the claim term “or” within claim 1’s recitation of
“[a manifest having a] cost function [that] comprises a calculation related to
determining whether to request, by the user device, the second data from a
remote location of the plurality of remote locations or access the first data
from the storage medium of the user device” (“the cost-function language”)?
The Majority agrees with the Examiner’s interpretation that the claim
language is met by a computer-implemented method that only determines
whether to request second data from a remote location, regardless of whether
the method further entails determining whether to access first data from a
local storage medium. See generally Majority Opinion. The Majority
adopts this interpretation after construing the claim term “or” “in its
common usage as designating alternatives.” Majority Opinion 4.
The Majority’s interpretation misconstrues claim 1. Claim 1 does not
recite two disjunctive, alternative cost functions or two disjunctive,
alternative calculations with one that relates to determining whether to
request the second data from a remote location and with the other that relates
to determining whether to access the first data from the storage medium of
the user device. Rather, claim 1 sets forth “a [single] cost function” that
comprises “a [single] calculation.” This single cost function or calculation
must have the capability of determining which one of two available options
to select: (1) request second data or (2) access first data.2 The Examiner’s

2 To be sure, well-settled principles of claim construction make clear that the
recitation of “a cost function” reads on one or more cost functions. But even
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rejection and Majority’s analysis improperly ignores the requirement that the
claimed cost function and calculation must provide the functionality of
selecting from these two available options.
Besides constituting the plain meaning of the claim language, this
interpretation also is consistent with Appellant’s Specification. Appellant’s
Specification describes the invention as entailing storing first data locally on
a user device, storing the same content as second data remotely, generating a
manifest that indicates the location of this first and second data, and
receiving a request for transmission of either the local version of the data or
the remote version of the data based on the manifest. Abstract.
The Specification explains that various factors can affect the speed
and quality of content that is transmitted either over a network or locally
within user device. Spec. ¶ 1 (providing examples of (1) bandwidth
limitations restricting the transmission rate of data on a network and
(2) local storage or buffer limitations as affecting the amount of data that a
user device can receive for local processing). The Specification explains
that the present invention addresses this problem and enables playback of
content at maximum quality level by dynamically managing a source of the
content so as to select the optimal location from where the requested content
is retrieved. Id. ¶ 2. The Abstract and first two paragraphs of Appellant’s
Specification render it reasonably clear, then, that the determining step of
claim 1 entails generating a cost function that is capable of deciding which
of the two recited options to select—a first option or a second option.

under such a construction, claim 1 still would require that each of the plural
cost functions must be capable of determining which of the two recited
functions to select.
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Furthermore, Appellant reasonably raises on appeal why the Examiner
is misconstruing the meaning of the cost-function language. E.g., Appeal
Br. 6 (“[T]he clients described in Brueck cannot choose to ‘access the first
data from the storage medium of the user device’ instead of ‘request[ing] the
second data from a remote location;’ as claimed.”) (Emphasis added). And
while Appellant perhaps could have stated its position in greater detail,
Appellant’s Brief does point to passages of the Specification that sufficiently
support Appellant’s proposed interpretation. See, e.g., Appeal Br. 2 (citing
Spec. ¶¶ 3, 18, 43, 51, FIGs. 4, 5 as providing support for the cost-function
language of claim 1); see also Spec. ¶ 2 (“the methods and systems can
enable the selection of optimal location . . . based on or more of network
bandwidth, storage capacity, priority of content and recipient device
characteristics”); Spec. ¶ 18 (“when conditions such as a network limitations
do not allow efficient transmissions of high definition video from a first
location over a network, the device can request an alternate version of the
high definition video from a second location based upon the manifest”).
I understand that “[i]t is the applicants’ burden to precisely define the
invention, not the PTO’s.” In re Morris, 127 F.3d 1048, 1056 (Fed. Cir.
1997). I further understand that Appellant always has the opportunity to
amend the claims during further prosecution, and broad interpretation by the
Examiner reduces the possibility that the claim, once issued, will be
interpreted more broadly than is justified. In re Prater, 415 F.2d 1393,
1404–05 (CCPA 1969). However, both of these patent-law axioms underpin
the well-established principle that during prosecution claims are given their
broadest reasonable construction consistent with the Specification (the “BRI
standard”). In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed.
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Cir. 2004). These axioms do not justify jettisoning the BRI standard in favor
of adopting a new claim-construction standard in which we give claims their
broadest conceivable construction viewed in isolation from the
Specification.
I see no reasonable justification for forcing Appellant to reopen
prosecution just to re-state the claim language with only marginally more
clarity when the present claim language already is more than reasonably
clear. “[T]he certainty [that] the law requires in patents is not greater than is
reasonable, having regard to their subject matter.” Minerals Separation,
Ltd. v. Hyde, 242 U.S. 261, 270 (1916).
For these reasons, I would REVERSE.