Ex Parte Arsenault et al

Patent Trial and Appeal Board

Mar 4, 2015

11731977 (P.T.A.B. Mar. 4, 2015)

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.
11/731,977 04/02/2007 Robert G. Arsenault PD-207010 9426
20991 7590 03/04/2015
THE DIRECTV GROUP, INC.
PATENT DOCKET ADMINISTRATION
CA / LA1 / A109
2230 E. IMPERIAL HIGHWAY
EL SEGUNDO, CA 90245
EXAMINER
EKPO, NNENNA NGOZI
ART UNIT PAPER NUMBER
2425
MAIL DATE DELIVERY MODE
03/04/2015 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 ROBERT G. ARSENAULT and
XAVIER D. RILEY
___________

Appeal 2012-010643
Application 11/731,977
Technology Center 2400
____________

Before CARLA M. KRIVAK, JASON V. MORGAN, and
DANIEL N. FISHMAN, Administrative Patent Judges.

FISHMAN, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) of the final rejection of
claims 1–29, 31–34, 36–76, and 79, all remaining claims of the application.
1

We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

1
In this Opinion, we refer to the Appeal Brief (“App. Br.,” filed February
28, 2012), the Reply Brief (“Reply Br.,” filed July 16, 2012), the Examiner’s
Answer (“Ans.,” mailed May 14, 2012), and the original Specification
(“Spec.,” filed April 2, 2007).
Appeal 2012-010643
Application 11/731,977

2

STATEMENT OF THE CASE
THE INVENTION
Appellants’ invention relates to communicating prior broadcasted
programs or content to a user device. Spec. ¶ 1. Specifically, the invention
involves using popularity information regarding content to determine which
of multiple networks to use to broadcast content. Spec. ¶ 34.
Independent claim 1, reproduced below, is illustrative:
1. A method of operating a communication system
comprising:
coupling a user device to a first network and a second
network;
generating a program guide for programming including
currently broadcasting programs and past programming, the
programming guide comprising program guide elements;
selecting a first program guide element from the past
programming to form a selection signal;
communicating the selection signal to a service provider;
retrieving a program corresponding to the selection from
a content repository associated with the service provider;
generating a popularity measurement of the program;
selecting one of the first network and the second network
to form a selected network at a service provider in response to
the popularity measurement; and
communicating the program to a user device through the
selected network.

Appeal 2012-010643
Application 11/731,977

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THE REJECTIONS
Claims 1, 2, 4, 5, 12–15, 17, 19, 29, 31, 65–69, 76,
2
and 79 are
rejected under 35 U.S.C. § 103(a) as unpatentable over Needham (US 2003/
0177495 A1) and Lin (US 7,797,722 B2).
Claims 32–34, 36, 38, 39, 46–49, 51–53, 58, 63, and 64 are rejected
under 35 U.S.C. § 103(a) as unpatentable over Needham, Lin, and Lawler
(US 5,805,763).
Claims 3, 6–10, 24, and 70–74 are rejected under 35 U.S.C. § 103(a)
as unpatentable over Needham, Lin, and Dua (US 7,624,417 B2).
Claims 37 and 40–44 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Needham, Lin, Lawler, and Dua.
Claim 18 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Needham, Lin, and Lawler.
Claim 16 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Needham, Lin, and Lee (US 2003/0037339 A1).
Claim 50 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Needham, Lin, Lawler, and Lee.
Claims 11, 20–23, 25–28, and 75 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over Needham, Lin, and Mickle (US 2007/0162932
A1).

2
We note the Examiner grouped claim 76 with claim 32 and its associated
dependent claims (Ans. 10) but the body of the rejection correctly relates the
rejection of claim 76 to that of independent claim 65 from which it depends
(Ans. 14). At least because Appellants do not separately argue error in the
rejection of claim 76, we find the Examiner’s error to be harmless.
Appeal 2012-010643
Application 11/731,977

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Claims 45, 54–57, and 59–62 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Needham, Lin, Lawler, and Mickle.

ISSUE
Appellants’ arguments present the dispositive issue: Has the Examiner
erred by finding Lin (in combination with the various cited references)
teaches or reasonably suggests “generating a popularity measurement of the
program; selecting one of the first network and the second network to form a
selected network at a service provider in response to the popularity
measurement,” (hereinafter the “disputed limitations”) as recited in
independent claim 1 and as similarly recited in independent claims 32 and
65.

ANALYSIS
Only those arguments actually made by Appellants have been
considered in this Decision. Arguments that Appellants did not make in the
Briefs have not been considered and are deemed to be waived. See
37 C.F.R. § 41.37(c)(1)(vii) (2011).
We have reviewed the Examiner’s rejections in light of Appellants’
arguments the Examiner erred. App. Br. 11–19. We are not persuaded by
Appellants’ contentions. We agree with, and adopt as our own, the findings
and reasons set forth by the Examiner in the action from which this appeal is
taken and as set forth by the Examiner in the Examiner’s Answer in response
to Appellants’ Appeal Brief (see Ans. 33–37). We highlight specific
arguments and findings for emphasis as follows.

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Application 11/731,977

5

The Examiner finds Lin discloses the disputed limitations. Ans. 5–6
(citing Lin col. 3, ll. 61–65; col. 4, ll. 33–53; col. 4, l. 65 through col. 5, l.
17; col. 5, ll. 4–30). The Examiner explains, under the broadest reasonable
interpretation of “popularity measurement,” Lin’s disclosure of the number
of peer network nodes as a consideration in selecting a content delivery
network (server 26 or P2P network 22) teaches or reasonably suggests a
“popularity measurement.” Ans. 34–35. Appellants argue Lin’s disclosure
of the number of peer nodes that can currently serve requested content is
only a measure of available nodes and not a “popularity measurement” as
recited in claim 1. Reply Br. 2. Appellants further contend the Examiner’s
interpretation is inconsistent with the Specification. Reply Br. 3 (citing
Spec. ¶ 34).
We are not persuaded the Examiner erred. Appellants’ Specification
does not provide any limiting definition of “popularity measurement” but
instead provides examples of how popularity could be derived from viewers.
See, e.g., Spec. ¶¶ 34, 42, 52. Given the lack of any limiting definition, the
Examiner correctly interprets “popularity measurement” in accordance with
the broadest reasonable interpretation consistent with the Specification as it
would be understood by the ordinary skilled artisan. See In re Amer. Acad.
of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). Appellants’
arguments do not persuade us the Examiner’s interpretation of “popularity
measurement” as a number of nodes available to serve content is
unreasonable or inconsistent with the Specification as understood by the
ordinary skilled artisan. Rather, we find the number of nodes available to
serve content (i.e., how many nodes already have the content) would be
reasonably understood as a reflection of the popularity of that content.
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Application 11/731,977

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Furthermore, Lin makes clear that the number of nodes available to serve
content (a popularity measurement) is at least one of the considerations used
in selecting a network to serve desired content. See, e.g., Lin col. 4, l. 54
through col. 5, l. 3.
In view of the above discussion, we are not persuaded the Examiner
erred by finding Lin teaches or reasonably suggests the disputed limitations
of claim 1. Appellants provide similar arguments for independent claim 65
(App. Br. 13–14; Reply Br. 4) and for the same reasons as claim 1, we are
not persuaded the Examiner erred. Dependent claims 2, 4, 5, 12–15, 17, 19,
29, 31, 66–69, 76, and 79 depend variously from independent claims 1 or 65
and Appellants do not separately argue with particularity error in the
rejection of these dependent claims. App. Br. 13, 15. Thus, for the same
reasons as claims 1 and 65, we are not persuaded the Examiner erred in
rejecting dependent claims 2, 4, 5, 12–15, 17, 19, 29, 31, 66–69, 76, and 79.

OTHER REJECTIONS
Independent claim 32 includes a similar recitation and is rejected with
a similar reliance on Lin as disclosing a “popularity measurement” (Ans.
12). Appellants present essentially the same arguments as those presented
above with respect to claims 1 and 65 (App. Br. 15–17; Reply Br. 4).
Dependent claims 33, 34, 36, 38, 39, 46–49, 51–53, 58, 63, and 64 depend
from claim 32. Appellants do not separately argue error in the rejection of
these claims (App. Br. 17) and thus, for the same reasons as claims 1 and 32,
we are not persuaded of Examiner error.
Appellants do not separately argue, with particularity, the rejections
of: (1) dependent claims 3, 6–10, and 24 (App. Br. 17); (2) dependent claims
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Application 11/731,977

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70–74 (id.); (3) dependent claims 37 and 40–44 (App. Br. 17–18); (4)
dependent claim 18 (id. at 18); (5) dependent claim 16 (id.); (6) dependent
claim 50 (id.); (7) dependent claims 11, 20–23, 25–28, and 75 (id. at 19);
and (8) dependent claims 44, 54–57, and 59–62 (id.). Thus, for the same
reasons as independent claims 1, 32, and 65, from which the claims
variously depend, we are not persuaded the Examiner erred in rejecting these
claims.

DECISION
For the above reasons, the Examiner’s rejections of claims 1–29, 31–
34, 36–76, and 79 are affirmed.
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).

AFFIRMED

ELD