Ex Parte Emmerich et al

Patent Trial and Appeal Board

Nov 19, 2013

11789416 (P.T.A.B. Nov. 19, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte MARK EMMERICH
and KENT PARKER
____________

Appeal 2011-003510
Application 11/789,416
Technology Center 2400
____________

Before BRUCE R. WINSOR, MICHAEL J. STRAUSS,
and CATHERINE SHIANG, Administrative Patent Judges.

WINSOR, Administrative Patent Judge.

DECISION ON APPEAL
Appellants1 appeal under 35 U.S.C. § 134(a) from a Final Rejection of
claims 1-28, which constitute all the claims pending in this application. We
have jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part.

1 The real party in interest is Hewlett-Packard Development Company, LP, a
wholly-owned affiliate of Hewlett-Packard Company, and having HPQ
Holdings, LLC, as its general or managing partner. App. Br. 2.
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Application 11/789,416

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STATEMENT OF THE CASE
Appellants’ disclosure relates to a multiplexing system for remote
control of a computer. Abstract. Claim 1, which is illustrative, reads as
follows:
1. A remote control multiplexing system, comprising:
a first viewing application that is adapted to allow a controlling
computer to control a remote computer via a
communication link; and
a connection multiplexer that is adapted to establish a first
communication session with the first viewing application
and a second communication session with a second
viewing application and to deliver packets received from
the remote computer via the communication link to the
first viewing application and the second viewing
application independently as though each of the first
viewing application and the second viewing application
is an only viewing application in communication with the
connection multiplexer.
8. The remote control multiplexing system recited in claim
1, wherein data is exchanged over the communication link via a
setup channel, an image channel and an input channel.

The Examiner relies on the following prior art in rejecting the claims:
Gray US 2005/0060655 A1 Mar. 17, 2005
John Bazik, XMX - An X Protocol Multiplexor, Brown University,
pp. 1-7 (Oct. 7, 1999 and 2005),
http://www.cs.brown.edu/software/xmx/tutorial/ (last visited Jun. 9,
2009) (“Bazik”).

Judith Grobe Sachs, Secure X Windows with SSH, pp. 1-4 (Aug. 10,
2001),
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http://www.uic.edu/depts/accc/newsletter/adn31/xwindows.html (last
visited Jun. 10, 2009) (“Sachs”).

Yusuke Shinyama, Vnc2swf, pp. 1-4 (Oct. 29, 2005),
http://www.unixuser.org/~euske/vnc2swf/vnc2swf.html (last visited
Jun. 9, 2009) (“Shinyama”).2

Claims 1, 5, 8-10, 14, 17-20, 24, 27, and 283 stand rejected under
35 U.S.C. § 102(b) as anticipated by Bazik. Ans. 3-8.
Claims 2, 3, 11, 12, 21, and 22 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Bazik and Sachs. Ans. 9-11.
Claims 4, 13, and 23 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Bazik and Gray. Ans. 12-14.
Claims 6, 7, 15, 16, 25, and 26 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Bazik and Shinyama. Ans. 14-17.
Rather than repeat the arguments here, we refer to the Briefs (“App.
Br.” filed Jun. 1, 2010; “Reply Br.” filed Oct. 15, 2010) and the Answer
(“Ans.” mailed Aug. 17, 2010) for the respective positions of Appellants and
the Examiner. 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).

2 Page number references to Bazik, Sachs, and Shinyama are to the printed
pages as they appear in the record.

3 The Examiner omits claims 8, 17, 20, and 27 from the general statement of
the ground for rejection (Ans. 3), but includes them in the detailed
discussion (Ans. 5, 7, 8).
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ISSUES
The issues presented by Appellants’ contentions are as follows:
Does Bazik disclose “a first viewing application that is adapted to
allow a controlling computer to control a remote computer via a
communication link” (emphasis added), as recited in claim 1?
Does Bazik disclose “data is exchanged over the communication link
via a setup channel, an image channel and an input channel,” recited in claim
8?
ANALYSIS
Claim 1
Appellants’ arguments center on the interpretation of “control” in
claim 1. Appellants argue as follows:
According to Bazik, one user runs the virtual meeting, i.e.,
operates the application, while the other participants to the
virtual meeting are able to view the actions of the user that is
running the virtual meeting. [Bazik, p. 4]. However, nothing in
Bazik discloses that any of the users may take control of the
XMX multiplexer/server or of any of the other users’
computers. Rather, the system disclosed by Bazik merely sends
display information to a virtual root window running on each of
the participant’s computers. See id. at p. 5-6.
App. Br. 7. “One of ordinary skill in the art would readily understand that
the recited ‘controlling a remote computer’ means to assume operation of
the remote computer, which is not disclosed by Bazik.” App. Br. 9. As
pointed out by the Examiner (Ans. 19), Appellants construe “control” to
mean “complete control.”
The Examiner explains:
The degree of the term “control” is never further limited
in the claim limitation. Therefor [sic], the examiner considers
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any type of control (i.e. having the “floor” in an X session)
sufficient to read on the claim limitation. In the case of Bazik,
control of a meeting means that the controller has the floor.
Therefor [sic], the client who has the floor controls what the
other clients see on their screens (controlling the display on the
client’s computer).
Ans. 19. “[I]f the computer that has the floor can control the other computer
monitors, the operation of the remote computer (video card, monitor, etc.) IS
being controlled.” Ans. 20.
The term “control” in claim 1 must be given its broadest reasonable
interpretation in light of the Specification, see In re Morris, 127 F.3d 1048,
1054 (Fed. Cir. 1997), without importing limitations from the Specification
into the claims, see In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993).
A pertinent definition is “control . . . vt . . . 2 a: to exercise
restraining or directing influence over: REGULATE . . . .” MERRIAM-
WEBSTER’S COLLEGIATE DICTIONARY 252 (10th ed. 1999). We find that this
definition represents the ordinary meaning of “control” as it would be
understood by a person of skill in the art. Although Appellants assert that
the skilled person would have a different, narrower understanding (App. Br.
8-9; Reply Br. 3) we find this definition is consistent both with the use of the
term in the Specification and the Examiner’s claim construction. Although
the Specification may describe embodiments that exercise control in specific
ways, none of these specific ways is inconsistent with the definition quoted
supra. Indeed, Appellants’ Specification discloses that control encompasses
control of the controlled computer’s monitor, i.e., “screen sharing” (Spec.
¶ [0017]). Compare In re Suitco Surface, Inc., 603 F.3d 1255, 1260 (Fed.
Cir. 2010) (holding a construction of “material for finishing the top surface
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of a floor” that encompasses an intermediate layer to be overly broad
because it inconsistent with the claim language and the specification).
Therefore, we construe “control” as used in claim 1 to encompass
“exercis[ing]. . . directing influence over.” We further find that this broad,
but reasonable, meaning of the term “control” encompasses Bazik’s
disclosure of a computer having the “floor” controlling the operation of the
monitors of remote computers.
Appellants further argue:
[W]hile the plain language of the claims alone precludes Bazik
as an anticipatory reference, the present specification provides
further support and context that Bazik cannot anticipate
independent claims 1, 10, and 19. The present disclosure is
directed to “access” and “control” of a “remote customer
computer by a technician on a controlling computer during a
help session.” See Application, p. 5, ll. 12-15; see also p. 1, ll.
17-21 (discussing VPN type connections where one computer
clearly has access and assumes operation of the remote
computer); p. 1, l. 21 - p. 2, l. 1 (“A remote control between the
technician’s computer and the customer’s computer allows the
technician to resolve the customer’s problems much more
efficiently than by describing the repair steps over the telephone
or via a chat message.”); p. 2, ll. 4-7.
Reply Br. 3. However, claim 1 is not so limited. Claim 1 does not recite the
asserted intended use by a technician during a help session, nor does it recite
specific control functions that would limit the claimed invention to use by a
technician during a help session.
Appellants have not persuaded us of error in the rejection of claim 1.
Claims 5, 9, 10, 14, 18-20, 24, and 28 are argued relying on the arguments
for claim 1 and are not separately argued with particularity. App. Br. 9.
Accordingly, we sustain the rejection of claims 1, 5, 9, 10, 14, 18-20, 24,
and 28 as anticipated by Bazik. Appellants argue claims 2-4, 6, 7, 11-13, 15,
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16, 21-23, 25, and 26 relying on the arguments for claim 1, and asserting
that the additional references applied by the Examiner do not remedy the
deficiencies of Bazik. App. Br. 10-12. Appellants do not otherwise
separately argue claims 2-4, 6, 7, 11-13, 15, 16, 21-23, 25, and 26 with
particularity. See id. We find Appellants’ arguments unpersuasive for the
reasons discussed supra with regard to claim 1.
Accordingly, we sustain the rejections of (1) claims 2, 3, 11, 12, 21,
and 22 as unpatentable over Bazik and Sachs; (2) claims 4, 13, and 23 as
unpatentable over Bazik and Gray; and (3) claims 6, 7, 15, 16, 25, and 26 as
unpatentable over Bazik and Shinyama.
Claim 8
Appellants contend that Bazik is devoid of any express disclosure of
the use of three channels, and that such channels are not inherent as they are
not necessarily present. App. Br. 9-10; Reply Br. 4-5. The Examiner
responds that
Appellant[s’] arguments fail to comply with 37 CFR 1.111 (b)
because they amount to a general allegation that the claims
define a patentable invention without specifically pointing out
how the language of the claims patentably distinguishes them
from the references. A mere allegation that the prior art does
not disclose a particular feature is not sufficient in overcoming
a rejection and therefor [sic] the examiner maintains both the
rejection and the interpretation of the claimed features.
Ans. 21-22.
We agree with Appellants (Reply Br. 5) that in view of the language
of the claim and the art cited as anticipating the claim, Appellants have
presented a sufficiently detailed argument. For example, Appellants point to
the three specific channels required by the claim, to the failure of Bazik to
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expressly address communication channels, and to the lack of evidence that
three channels are necessarily present, App. Br. 9-10. Appellants further
describe an exemplary system falling within the cited portion of Bazik’s
disclosure, but not meeting the limitations of claim 8. See Reply Br. 5 (“For
example, any Bazik operation regarding setup, image, or input do no [sic]
have to be performed via separate channels.”).
Appellants have demonstrated error in the rejection of claim 8.
Accordingly, we do not sustain the rejection as anticipated by Bazik of claim
8 and claims 17 and 27, which have limitations substantially similar to those
of claim 8.
ORDER
The decision of the Examiner to reject claims 1-7, 9-16, 18-26, and 28
is affirmed.
The decision of the Examiner to reject claims 8, 17, and 27 is
reversed.
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). See 37 C.F.R.
§ 1.136(a)(1)(iv) (2011).

AFFIRMED-IN-PART

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