Ex Parte Chen et al

Patent Trial and Appeal Board

May 24, 2016

13471527 (P.T.A.B. May. 24, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/471,527 05/15/2012
27820 7590 05/26/2016
WITHROW & TERRANOVA, PLLC
106 Pinedale Springs Way
Cary, NC 27511
FIRST NAMED INVENTOR
Jeff Chen
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
1192-003 8486
EXAMINER
LEVITAN, DMITRY
ART UNIT PAPER NUMBER
2461
NOTIFICATION DATE DELIVERY MODE
05/26/2016 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):
patents@wt-ip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JEFF CHEN and LEO CLOUTIER
Appeal 2015-001131
Application 13/471,527
Technology Center 2400
Before KRISTEN L. DROESCH, CATHERINE SHIANG, and
KAMRAN JIVANI, Administrative Patent Judges.
SHIANG, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's
rejection of claims 1-2 and 4--20, which are all the claims pending in the
application. We have jurisdiction under 35 U.S.C. § 6(b). We affirm-in-
part.
STATEMENT OF THE CASE
Introduction
The present invention relates to distributing content over a network.
See generally Spec. 1. Claim 1 is exemplary:
Appeal 2015-001131
Application 13/471,527
1. A method for initiating a unicast video stream in
response to a triggering event from a client node receiving a
multicast video stream, comprising:
multicasting, at a distribution node communicatively
coupled to a plurality of client nodes, a first video stream of a
program encoded in a first format to the plurality of client
nodes;
detecting the triggering event associated with a first
client node of the plurality of client nodes that is receiving the
first video stream; and
in response to the triggering event, unicasting a second
video stream of the program encoded in a second format to the
first client node, wherein the second format comprises a lower
bit rate than the first format.
References and Rejections
Claims 16-18 are rejected under 35 U.S.C. § 112, second paragraph,
as being indefinite.
Claims 1-2, 4--13, 15, 19 and 20 are rejected under 35 U.S.C. § 103(a)
as being unpatentable over Cedervall (US 2011/0083153 1A .. l, Apr. 7, 2011)
and Broberg (US 7, 7 60, 7 40 B2, July 20, 2010).
Claim 14 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Cedervall, Broberg and Bichot (US 8,204,055 B2, June 19, 2012).
Claims 16-18 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Cedervall, Broberg and Schlack (US 2011/0119703 Al,
May 19, 2011).
PRINCIPLES OF LAW
Claims must "particularly point[] out and distinctly claim[] the subject
matter which the applicant regards as his invention." 35 U.S.C. § 112, i-f 2.
A claim is invalid for indefiniteness if one skilled in the art would not
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understand the scope of the claim, when the claim is read in light of the
specification. See Allen Eng'g Corp. v. Bartell Indus., Inc., 299 F.3d 1336,
1348 (Fed. Cir. 2002).
Although "[a] claim term is not indefinite just because 'it poses a
difficult issue of claim construction[,]'" Star Scientific, Inc. v. R.J. Reynolds
Tobacco Co., 537 F.3d 1357, 1371 (Fed. Cir. 2008) (citation omitted), "if a
claim is amenable to two or more plausible claim constructions, the USPTO
is justified in requiring the applicant to more precisely define the metes and
bounds of the claimed invention by holding the claim unpatentable under
35 U.S.C. § 112, second paragraph, as indefinite." Ex parte Miyazaki, 89
USPQ2d 1207, 1211 (BP AI 2008) (precedential).
ANALYSIS
The Indefiniteness Rejection
The Examiner finds the claim limitation "wherein detecting the
triggering event associated with the first client node of the plurality of client
nodes comprises determining that each client node of the plurality of client
nodes except the first client node is no longer receiving the first video
stream," as recited in claim 16 (and dependent claims 17 and 18), is unclear
and self-contradictory, because "the triggering event associated with the first
client node is generated by events associated with the other client nodes,
excluding the first client node." Ans. 2.
We agree with Appellants that the Examiner has not established that
one skilled in the art would not understand the scope of the disputed claim
limitation, when the claim is read in light of the specification. See Allen
Eng'g Corp., 299 F.3d at 1348. In fact, the Examiner has clearly explained
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what the claim limitation means. See Ans. 2. Further, we disagree with the
Examiner's finding that the claim limitation is self-contradictory, as the
Examiner has not explained why it is inappropriate to claim a triggering
event generated by events associated with the other client nodes.
Because the Examiner has not provide adequate support for the
rejection, we do not sustain the Examiner's rejection of claims 16-18 under
35 U.S.C. § 112, second paragraph.
The Obviousness Rejection
On this record, we find the Examiner did not err in rejecting claim 1.
We disagree with Appellants' arguments, and agree with and adopt
the Examiner's findings and conclusions in the Final Action and Answer to
the extent they are consistent with our analysis below. Therefore, we limit
our discussion to the following points for emphasis.
Appellants contend Cedervall and Broberg do not collectively teach
"multicasting ... a first video stream of a program encoded in a first format
to the plurality of client nodes; ... unicasting a second video stream of the
program encoded in a second format to the first client node," as recited in
claim 1 (emphasis added). See App. Br. 10-11; Reply Br. 2-3. In
particular, Appellants assert:
Now here does Cedervall teach or suggest that different
encodings of the same program in two different formats are
utilized by the different transmission modes.
Nowhere does Broberg teach or suggest the use of different
encodings of the same program in two different formats to the
same client. Thus, neither reference teaches or suggests the use
of different encodings of the same program in two different
formats to the same client. Neither reference provides any
incentive for doing so, or recognizes any need to do so.
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The Patent Office asserts that it would be obvious to
combine Cedervall with Broberg "to match quality of the
delivered video in the system with the terminal/client
capabilities saving the system bandwidth" (Final Office Action,
p. 4). However, this explanation provides no reason why it
would be obvious to do so in the middle of the program.
App. Br. 11 (emphases omitted); see also Reply Br. 2-3.
Appellants have not persuaded us of error. Because the Examiner
relies on the combination of Cedervall and Broberg to teach the disputed
claim limitations, Appellants cannot establish nonobviousness by attacking
the references individually. See In re Merck & Co., 800 F.2d 1091, 1097
(Fed. Cir. 1986).
The Examiner finds-and Appellants do not dispute---Cedervall
teaches "multicasting ... a first video stream of a program encoded in a first
format to the plurality of client nodes; ... unicasting a second video stream
of the program ... to the first client node." See Ans. 3, 11; Cedervall i-fi-12-
Further, the Examine finds-and Appellants do not adequately
dispute-the claimed "encoded in a second format" is taught by or obvious
in light of Broberg's teachings, because Broberg teaches "a video
broadcasting system with switching video formats to match formats of the
transmitter and the receiver, as described on 7:6-18, including matching
codecs for MPEG2 or MPEG4, which are using different compression
schemes, as described on 3:50-60." Ans. 11.
Appellants' analysis of Broberg is inadequate because other than
citing the Abstract, Appellants' sole assertion is an unsupported attorney
argument that "[n]owhere does Broberg teach or suggest the use of different
encodings of the same program in two different formats to the same
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client." App. Br. 11. Because Appellants fail to adequately critique the
Examiner's specific findings, Appellants fail to show specific fault in the
Examiner's findings. See In re Baxter Travenol Labs., 952 F.2d 388, 391
(Fed. Cir. 1991) ("It is not the function of this court [or this Board] to
examine the claims in greater detail than argued by an appellant, looking for
[patentable] distinctions over the prior art.").
Therefore, the Examiner reasonably finds Cedervall and Broberg
collectively teach "multicasting ... a first video stream of a program
encoded in a first format to the plurality of client nodes; ... unicasting a
second video stream of the program encoded in a second format to the first
client node," as recited in claim 1 (emphasis added).
Contrary to Appellants' assertion, "[i]n determining whether the
subject matter of a patent claim is obvious, neither the particular motivation
nor the avowed purpose of the patentee controls." KSR Int 'l Co. v. Teleflex
Inc., 550 U.S. 398, 419 (2007). 1 The Examiner has provided articulated
reasoning with some rational underpinning to support the legal conclusion of
obviousness. See Ans. 4; KSR, 550 U.S. at 418. Specifically, the Examiner
finds one skilled in the art would have made the proposed combination to
save bandwidth (Ans. 4, 11-12), and Appellants fail to show why such
reasoning is insufficient.
1 In any event, we note there is adequate reason to combine the teachings of
the references because the proposed combination saves bandwidth and thus
is more "efficient." See Dystar Textilfarben GmBH & Co. Dutschland KG v.
C.H. Patrick Co., 464 F.3d 1356, 1368 (Fed. Cir. 2006) ("[A]n implicit
motivation to combine exists ... when the 'improvement' is technology-
independent and the combination of references results in a product or
process that is more desirable ... because it is ... more efficient.").
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The Examiner's findings are reasonable because the skilled artisan
would "be able to fit the teachings of multiple patents together like pieces of
a puzzle" since the skilled artisan is "a person of ordinary creativity, not an
automaton." KSR, 550 U.S. at 420-21. Appellants do not present adequate
evidence that the resulting arrangements were "uniquely challenging or
difficult for one of ordinary skill in the art" or "represented an unobvious
step over the prior art." Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485
F.3d 1157, 1162 (Fed. Cir. 2007) (citing KSR, 550 U.S. at 418-19).
Therefore, we agree with the Examiner that because Cedervall and
Broberg teach prior art elements that perform their ordinary functions to
predictably result in the disputed claim limitation, the proposed combination
would have been within the purview of the ordinarily skilled artisan.
Applying the Broberg technique in the Cedervall method would have
predictably used prior art elements according to their established functions-
an obvious improvement. See KSR, 550 U.S. at 417.
Accordingly, we sustain the Examiner's rejection of claim 1, and
dependent claims 2, 4---6, and 8-15 for similar reasons.
assert:
Regarding dependent claim 7, without any analysis, Appellants simply
[[N]owhere does Cedervall or Broberg teach or suggest
multicasting a program in one format and concurrently
unicasting the same program in a second format to a network
DVR. Nor does the Patent Office even assert that the cited
references disclose this feature. Nowhere does Cedervall or
Broberg disclose detecting a trigger, and upon such detection,
uni casting the second video stream of the program to the client
device from the network DVR. Nor does the Patent Office even
assert that the cited references disclose this feature.
App. Br. 12; see also Reply Br. 3.
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Contrary to Appellants' unsupported assertion, the Examiner has
provided findings showing that Cedervall and Broberg collectively teach the
limitations of claim 7. Specifically, the Examiner finds:
Cedervall teaches using a network digital video recorder,
described as network personal video recorder IN-PVR on
[0004], to perform trick play functions of Video on
Demand/VoD service in a unicast mode, including unicasting a
second video stream, described as slow-motion play according
to the user trick command on [0004], wherein Broberg teaches
using unicast formatting different from the broadcast
formatting, as described on 5 :30-40, and transmitting the first
and the second video streams in the first and second formats
simultaneously, as described on 6:5-13.
Ans. 5.
We understand the Examiner's above finding to mean that Cedervall
teaches "a network DVR [digital video recorder]" and "from a network
DVR," and Broberg teaches "concurrently" because it teaches transmitting
simultaneously. See Ans. 5. Further, as discussed above with respect to
claim 1, Cedervall and Broberg collectively teach "multicasting ... a first
video stream of a program encoded in a first format to the plurality of client
nodes; ... uni casting a second video stream of the program encoded in a
second format to the first client node." Therefore, Cedervall and Broberg
collectively teach:
unicasting ... the program encoded in the second format to a
network DVR ... while concurrently multicasting the first
video stream of the program encoded in the first format to the
plurality of client nodes; and
wherein unicasting the second video stream of the
program encoded in the second format to the first client node
further comprises unicasting the second video stream of the
program encoded in the second format to the first client node
from the network DVR.
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Claim 7.
Further, in connection with claim 1, the Examiner provides findings
showing Cedervall teaches "detecting the triggering event associated with a
first client node of the plurality of client nodes that is receiving the first
video stream; and in response to the triggering event, unicasting a second
video stream of the program encoded in a second format to the first client
node .... " See Ans. 3.
In contrast, Appellants' general assertion lacks adequate analysis and
support. Because Appellants fail to critique the Examiner's specific
findings, Appellants fail to show the Examiner's findings are unreasonable.
See Baxter Travenol Labs., 952 F .2d at 391.
Accordingly, and for similar reasons discussed above with respect to
claim 1, we sustain the Examiner's rejection of claim 7.
Claims 16-18
We agree with Appellants that the Examiner fails to adequately map
"wherein detecting the triggering event associated with the first client node
of the plurality of client nodes comprises determining that each client node
of the plurality of client nodes except the first client node is no longer
receiving the first video stream," as recited in claim 16. See App. Br. 14--15.
The Examiner finds Schlack teaches
uni casting method of personal advertising to a single client is
preferred above the multicasting, as the advertisement can be
directed to interests of a single person, as described on [0008]-
[001 OJ. In addition, Schlack teaches the system monitoring
available bandwidth and switching from multicasting to
unicasting when the system bandwidth is sufficient to support
the unicasting operation, as described on [001 OJ.
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Ans. 8.
However, the Examiner does not adequately explain how the above
findings, such as Schlack' s teaching of "switching ... when the system
bandwidth is sufficient to support the unicasting operation," demonstrate
Schlack teaches the disputed claim limitation. Further, we have reviewed
the cited Schlack portions. Absent further explanation from the Examiner,
we do not see how such portions teach the disputed claim limitation.
Because the Examiner has not provide adequate support for the
rejection, we do not sustain the Examiner's rejection of claim 16, and
corresponding dependent claims 17 and 18.
Claims 19-20
Appellants contend:
[C]laim 19 recites detecting a triggering event associated with a
first client node that is already receiving the first video stream
of a program, and in response, causing a net\'l/ork DVR to
unicast a second video stream of the program encoded in a
second format to the first client node. The Patent Office fails to
address these limitations. The Patent Office fails to even
suggest that the prior art references disclose these features.
Moreover, Appellants submit that neither reference discloses
such features. Specifically, Cedervall does not disclose
multicasting a first video stream of a program encoded in one
format while concurrently unicasting a DVR video stream of
the program encoded in a second format to a network DVR, and
causing the network DVR to unicast the second video stream
upon detecting a triggering event. Broberg fails to remedy
these deficiencies ....
App. Br. 13 (emphasis omitted); see also Reply Br. 4.
Appellants' unsupported attorney argument-without adequate
analysis-is unpersuasive of error. Contrary to Appellants' assertion, the
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Examiner has provided specific findings as to why Cedervall and Broberg
collectively teach the disputed limitations of claim 19. See Ans. 3-5, 12-13.
For example, the Examiner cites Cedervall's paragraphs 6 thought 12, and
explains why Cedervall teaches "concurrently" unicasting. See Ans. 13.
Further, as discussed above with respect to claims 1 and 7, the Examiner
reasonably finds the claimed "encoded in a second format" and "to the
network DVR" is taught by or obvious in light of the collectively teachings
of Cedervall and Broberg. In addition, similar to the discussions above with
respect to claim 7 and claim 1, the Examiner has provided numerous
findings supporting the rejection. See Ans. 3-5, 12-13. Because Appellants
fail to critique the Examiner's specific findings, Appellants fail to show
error in the Examiner's findings. See Baxter Travenol Labs., 952 F.2d at
391.
To the extent Appellants advance new arguments in the Reply Brief
without showing good cause, Appellants have waived such arguments. See
37 C.F .R. § 41.41 (b )(2). Specifically, for the first time and in the Reply
Brief, Appellants argue the Examiner's mapping is incorrect because claim
19 recites "a single 'distribution node' that concurrently sends two video
streams of the same program to different locations." Reply Br. 4.
Appellants have waived the belated argument because Appellants have not
shown any good cause.
Accordingly, and for similar reasons discussed above with respect to
claims 1 and 7, we sustain the Examiner's rejection of claim 19, and
corresponding dependent claim 20.
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DECISION
We reverse the Examiner's rejection of claim 16-18 under 35 U.S.C.
§ 112, second paragraph.
We affirm the Examiner's decision rejecting claims 1-2, 4--15 and
19-20 under 35 U.S.C. § 103.
We reverse the Examiner's rejection of claim 16-18 under 35 U.S.C.
§ 103.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED-IN-PART
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