Ex Parte Hasek

Patent Trial and Appeal Board

Oct 31, 2018

12622825 (P.T.A.B. Oct. 31, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/622,825 11/20/2009
98417 7590 11/01/2018
Otterstedt, Ellenbogen & Kammer, LLP
P.O. Box 381
Cos Cob, CT 06807-0381
FIRST NAMED INVENTOR
Charles Hasek
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.
TWC 09-12/1033-31 5095
EXAMINER
NIGH, JAMES D
ART UNIT PAPER NUMBER
3685
MAIL DATE DELIVERY MODE
11/01/2018 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 CHARLES HASEK
Appeal2017-007967
Application 12/622,825
Technology Center 3600
Before CAROLYN D. THOMAS, JEREMY J. CURCURI, and
JON M. JURGOV AN, Administrative Patent Judges.
CURCURI, Administrative Patent Judge.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner's
rejection of claims 1, 8-15, 19-27, and 29-34. Final Act. 1. We have
jurisdiction under 35 U.S.C. § 6(b ).
Claims 1, 8-15, 19-27, and 29-34 are rejected under 35 U.S.C. § 101
as directed to a judicial exception without particularly more. Id. at 7-16.
Claim 24 is rejected under pre-AIA 35 U.S.C. § 112, second
paragraph, as being indefinite. Id. at 16-17.
Claims 1, 8-11, 13-15, 19-21, 23-25, and 29-34 are rejected under
pre-AIA 35 U.S.C. § 102(b) as anticipated by Rodriguez (US 7,340,759 Bl;
Mar. 4, 2008). Id. at 18-21.
Claims 12, 22, 26, and 27 are rejected under pre-AIA 35 U.S.C.
Appeal2017-007967
Application 12/622,825
§ I03(a) as obvious over Rodriguez and Schlack (US 2010/0086020 Al;
Apr. 8, 2010). Id. at 22-24.
We affirm-in-part.
STATEMENT OF THE CASE
Appellant's invention relates to "video content networks." Spec. 1 :5.
Claim 1 is illustrative and reproduced below:
1. A method comprising the steps of:
receiving, from a first one of a plurality of terminals in a
service group of a video content network, a first request to
establish a first category of session with a head end of said
video content network, the first category being indicative of
first video and data services comprising a first one of video on
demand, switched digital video, gaming, and file download;
receiving, from a second one of said plurality of
terminals in said service group of said video content network, a
second request to establish a second category of session with
said head end of said video content network, the second
category being indicative of second video and data services
comprising a second one of video on demand, switched digital
video, gaming, and file download, wherein said video content
network provides at least said first and second different
categories of sessions to said service group;
evaluating, by a session resource manager apparatus
coupled to said network, said first request against a policy, said
policy specifying a maximum utilization threshold for sessions
of said first category as a maximum allowable number of said
sessions of said first category and a maximum utilization
threshold for sessions of said second category as a maximum
allowable number of said sessions of said second category, said
evaluating of said first request against said policy comprising
determining whether granting said first request would cause
said maximum allowable number of said sessions of said first
category to be exceeded;
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evaluating, by said session resource manager apparatus
coupled to said network, said second request against said
policy, said evaluating of said second request against said
policy comprising determining whether granting said second
request would cause said maximum allowable number of said
sessions of said second category to be exceeded;
responsive to said evaluating of said first request against
said policy indicating that granting said first request would not
cause said maximum allowable number of said sessions of said
first category to be exceeded, granting, by said session resource
manager apparatus, said first request; and
responsive to said evaluating of said second request
against said policy indicating that granting said second request
would indeed cause said maximum allowable number of said
sessions of said second category to be exceeded, denying, by
said session resource manager apparatus, said second request.
PRINCIPLES OF LAW
We review the appealed rejections for error based upon the issues
identified by Appellant, and in light of the arguments and evidence produced
thereon. Ex parte Frye, 94 USPQ2d 1072, 107 5 (BP AI 2010) (precedential).
ANALYSIS
THE 35 U.S.C. § 101 REJECTION OF CLAIMS 1, 8-15, 19-27, AND 29-34
Contentions
The Examiner concludes:
The steps of receiving requests can be viewed as data
gathering steps. The evaluating steps are implementing stored
rules regarding the policies that indicate how many sessions can
be allowed (page 14, lines 14-26, page 16, lines 12-19, page 19
line 29 through page 30, line 10). Based on the stored rule sets
sessions will either be granted or denied. The decisions are
based at least in part on prioritizing revenue generating sessions
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against free sessions (page 28, lines 1-15). When viewing the
limitations both individually and as a whole, claim 1 must be
held as being directed towards the judicial exception of an
abstract idea involving the allocation of limited resources based
on financial considerations, which is a combination of
fundamental economic practice (Alice Corp. Pty. Ltd. v. CLS
Bank Int'!, .. . 134 S. Ct. 2347, 2356 (2014)) in conjunction
with the organization of human activity based on stored rules
(buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355 (Fed. Cir.
2014 ), (Accenture Global Services, GmbH v. Guidewire
Software, 728 F.3d 1336, 1340-41 (Fed. Cir. 2013)). As the
decision essentially uses stored rules to emulate human decision
making, the claim can also be viewed as being an idea of itself
(Cybersource Corp. v. Retail Decisions, Inc., 654 F.3d 1366,
1372 (Fed. Cir. 2011), ((Unpublished) SmartGene, Inc. v.
Advanced Biological Labs., SA (Fed. Cir. 2014)). Dependent
claims 8-13, 26 and 28 [sic] merely provide additional
conditions regarding the rule based decision process and must
also therefore be held as being directed towards the judicial
exception of an abstract idea involving the allocation of limited
resources based on financial considerations, which is a
combination of fundamental economic practice ([Alice, 134 S.
Ct. at 2356]) in conjunction with the organization of human
activity based on stored rules ([buySAFE, 765 F.3d at 1355]),
([Accenture Global, 728 F .3d at 1340-41 ]). As the decision
essentially uses stored rules to emulate human decision making,
the claim can also be viewed as being an idea of itself
([Cybersource, 654 F.3d at 1372]), ((Unpublished)
[SmartGene]). Claims 1, 8-13, 26 and 28 [sic] do not include
additional elements that are sufficient to amount to significantly
more than the judicial exception because the additional
elements are merely well-understood, routine, and conventional
functions when they are claimed in a merely generic manner
such as performing repetitive calculations (Bancorp Services
LLC v. Sun Life Assurance Co. of Canada (US.), [687 F.3d
1266] (Fed. Cir. 2012)), receiving, processing, and storing data
([Alice, 134 S. Ct. at 2356]) electronic recordkeeping ([id. at
2356]) automating mental tasks ([Bancorp Services],
([Cybersource, 654 F.3d at 1372]) receiving or transmitting
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Application 12/622,825
data over a network, e.g., using the Internet to gather data
(Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 714-15 (Fed.
Cir. 2014), ([buySAFE., 765 at 1355], (Cybeifone Systems, LLC
v. CNN Interactive Group, Inc., 558 Fed. Appx. 988, 993 (Fed.
Cir. 2014)). Therefore claims 1, 8-13, 26 and 28 [sic] must be
held as being directed towards ineligible subject matter under
section 101.
Final Act. 9--11 ( emphasis added); see also Final Act. 11-16 ( addressing
claims 14, 15, 19--25, 27, and 29-34); Ans. 18-25.
Appellant presents, among other arguments, the following principal
argument:
Moreover, the claimed invention significantly improves
the functioning of a particular computer technology. See, e.g.,
McRO, Inc. v. Bandai Namco Games Am. Inc., [837 F.3d 1299
(Fed. Cir. 2016)]; Alice, [134 S. Ct.] at 2358. In particular,
embodiments of the claimed methods provide specific
improvements to the management of video content in a video
content network, as discussed in the [S]pecification at, p. 1 :3-5;
p., 2:15-3:2; p. 3:23-28; p. 5:3-16, with reference to FIG. 1; p.
8:1-19, with reference to FIGS. IA-IC; p. 10:26-29, with
reference to FIGS. I-IC; p. 12:11-21; p. 15:12-17; p. 16:12-15
and 20-29; p. 19:29-20:3; p. 24:30-25:4; and p. 30:23-31: 14. In
the present application, "the claimed solution is necessarily
rooted in computer technology in order to overcome a problem
specifically arising in the realm of computer networks." DDR
Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1257 (Fed.
Cir. 2014). Thus, "the claims are directed to a specific
implementation of a solution to a problem in the software arts.
Accordingly, ... the claims at issue are not directed to an
abstract idea." Enfzsh[, LLC v. Microsoft Corp., 822 F.3d 1327,
1339 (Fed. Cir. 2016)].
App. Br. 16; see also Reply Br. 7.
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Our Review
In Alice, the Supreme Court applied the framework as set forth in
Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66 (2012) for
determining whether the claims are directed to patent-eligible subject matter.
Alice, 134 S. Ct. at 2355. The first step in the analysis is to "determine
whether the claims at issue are directed to one of [the judicially-recognized]
patent-ineligible concepts." Id. If the claims are directed to a patent-
ineligible concept, then the second step in the analysis is to consider the
elements of the claims "individually and 'as an ordered combination' to
determine whether the additional elements 'transform the nature of the
claim' into a patent-eligible application." Id. (quoting Mayo, 566 U.S. at 78,
79). However, the Federal Circuit has articulated that "the first step in the
Alice inquiry ... asks whether the focus of the claims is on the specific
asserted improvement in computer capabilities ... or, instead, on a process
that qualifies as an 'abstract idea' for which computers are invoked merely
as a tool." Enfzsh, 822 F.3d at 1335-36. Accordingly, the Federal Circuit
determined, if "the claims are directed to a specific implementation of a
solution to a problem in the software arts," then "the claims at issue are not
directed to an abstract idea." Id. at 1339.
In the "Background of the Invention" section, Appellant's
Specification discloses the following:
A video content network, such as a cable television
network, may provide many different services; for example,
free on demand, movies on demand, subscription video on
demand, switched digital video, and the like. Sessions within
each of these services require limited resources. Each type of
service may be associated with a different fee structure.
Spec. 2:8-12 ( emphasis added).
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In the "Summary of the Invention" section, Appellant's Specification
discloses the following:
In one aspect, an exemplary method includes the step of
receiving, from one of a plurality of terminals in a service group
of a video content network, a request to establish a session with
a head end of the network. The video content network provides
at least first and second different categories of sessions to the
service group. An additional step includes evaluating the
request against a policy. The policy specifies a maximum
utilization threshold for sessions of the first category and a
maximum utilization threshold for sessions of the second
category. A further step includes granting the request if it is in
conformance with the policy.
Spec. 2:15-23; see also id. at 27:19-25 (describing example of policy for
different categories of sessions).
We agree with Appellant that "embodiments of the claimed methods
provide specific improvements to the management of video content in a
video content network." App. Br. 16. Appellant's claim provides more than
merely allocating limited resources or decision making based on stored
rules; rather, Appellant's claim provides evaluating requests to establish
sessions against policies, and granting or denying the requests in response to
the evaluating, in a video content network. Importantly, these session
requests and policies do not exist without the improved computer technology
of the video content network.
To the extent Appellant's claimed invention is considered an abstract
idea, although we find that it is not, such claimed invention is a "specific
asserted improvement in computer capabilities" rather than "a process that
qualifies as an 'abstract idea' for which computers are invoked merely as a
tool." See Enfzsh, 822 F.3d at 1335-36. Accordingly, because "the claims
are directed to a specific implementation of a solution to a problem in the
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software arts," claim 1 is not directed toward an abstract idea. See id. at
1339. Therefore, the§ 101 inquiry ends here.
Accordingly, we do not sustain the rejection of independent claim 1
under 35 U.S.C. § 101. We also do not sustain the rejection of claims 8-15,
19-27, and 29-34 for the same reasons discussed with respect to claim 1.
THE INDEFINITENESS REJECTION OF CLAIM 24
Contentions
The Examiner concludes claim 24 is indefinite. Final Act. 16-17. In
particular, the Examiner concludes:
Page 20, at lines 11-12 recites that "The Session Resource
Manager functionality may reside on a single component such
as a VOD server or mav be spread across multiple
components". No indication of what structure is included by
the recitation "spread across multiple components" is provided
in the disclosure. The disclosure is so open ended in this regard
that it cannot be definitively established that the "multiple
components" are explicitly some form of programmed
computer as Applicant alleges. Therefore as the disclosure
describes the supporting structure in an open-ended fashion that
is not confined to a programmed computer it cannot clearly be
established as to what establishes the metes and bounds of the
claim.
Id.; see also Ans. 25-27.
Appellant presents the following principal argument:
While the present disclosure states that the session resource
manager functionality may reside on a single component or on
multiple components, the disclosure provides well-defined
alternative embodiments to illustrate the two different
approaches to implementing the session resource manager
functionality. For example, the [S]pecification, p. 14:27-29,
defines illustrative embodiments of the session resource
manager functionality residing on both single and multiple
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components, stating: "In some instances, the SRM
functionality resides physically on the VOD server 105, while
in other cases it is split between two entities, the VOD server
105 and a session resource manager of the DNCS 308."
(emphasis added). This embodiment, shown in FIG. 3, clearly
defines a multiple-component implementation of the session
resource manager functionality in a fashion which is not open-
ended. As such, it will be apparent to a person having ordinary
skill in the art that previously-presented claim 24, particularly
when read in view of the present disclosure, is not indefinite
under§ 112, second paragraph.
App. Br. 20; see also Reply Br. 9--10.
Our Review
Appellant's Specification discloses: "In some instances, the SRM
functionality resides physically on the VOD server 105, while in other cases
it is split between two entities, the VOD server 105 and a session resource
manager of the DNCS 308." Spec. 14:27-29 (emphasis added).
But turning to claim 24, claim 24 is an apparatus claim reciting six
"means for" elements. We agree with the Examiner that claim 24 is
indefinite for the reasons given by the Examiner, and because we do not
readily see corresponding structure in the Specification for each of the
recited "means for" elements of claim 24.
We, therefore, sustain the Examiner's rejection of claim 24 under pre-
AIA 35 U.S.C. § 112, second paragraph, as being indefinite.
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THE ANTICIPATION REJECTION OF CLAIMS 1, 8-11, 13-15, 19-21, 23-25, AND
29-34 BY RODRIGUEZ
Contentions
The Examiner finds Rodriguez describes all limitations of claim 1.
Final Act. 18-20; see also Ans. 27-29.
In particular, the Examiner finds Rodriguez describes
evaluating, by a session resource manager apparatus
coupled to said network, said first request against a policy, said
policy specifying a maximum utilization threshold for sessions
of said first category as a maximum allowable number of said
sessions of said first category and a maximum utilization
threshold for sessions of said second category as a maximum
allowable number of said sessions of said second category, said
evaluating of said first request against said policy comprising
determining whether granting said first request would cause
said maximum allowable number of said sessions of said first
category to be exceeded[;]
... evaluating, by said session resource manager
apparatus coupled to said network, said second request against
said policy, said evaluating of said second request against said
policy comprising determining whether granting said second
request would cause said maximum allowable number of said
sessions of said second category to be exceeded;
as recited in claim 1. Final Act. 18-19 (Rodriguez 7:25-26, 46-50, 8:14--19,
11 :42-53, 12:3-11, 16:3---6, 64---66, 20:3-13, 21:37, 62---66, 24:5-8).
Appellant presents the following principal argument:
"[W]hile the methodology taught by Rodriguez is able to condition a
decision as to whether to deliver a requested service based on a total
available bandwidth determination, Rodriguez fails to teach or even suggest
the use of multiple maximum utilization thresholds for different categories of
sessions" as recited in claim 1. App. Br. 21. "[T]he methodology taught by
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Rodriguez is not able to reserve a prescribed amount of bandwidth for
particular categories of service. Instead, service requests are granted,
without regard for the category (i.e., type) of service, until the overall
available bandwidth limit has been reached." App. Br. 22.
By maximizing the total number of subscriber requests fulfilled
or, alternatively, maximizing the total revenue generated,
without evaluating the type of content delivery requested for a
given session, the DBDS system of Rodriguez cannot achieve
the same level of control over the multiple categories of video
and data service sessions established between a corresponding
terminal/ service group and the head end.
App. Br. 23; see also Reply Br. 11-12.
Our Review
Rodriguez discloses:
Methods and systems are provided for dynamically
pricing viewing options in a digital broadband communication
network by receiving bandwidth allocation information from a
bandwidth allocation manager and dynamically assigning a
price criterion to each of a group of viewing options based at
least in part on the bandwidth allocation information. The group
of viewing options may, for example, comprise a reservation
option, a normal-play option, a random access option, an on-
demand random access option, and an adjust preference option.
Rodriguez, Abstract. Rodriguez further discloses: "The bandwidth
allocation manager 125 uses the allocation criteria to determine a bandwidth
allocation schedule that divides the available bandwidth between the
different types of DTCs for each period in time." Rodriguez 16:3---6.
Rodriguez elaborates:
The procedures for requesting and delivering of a VOD
service can be quite complex, especially when there are more
requests than there are available VOD bandwidth resources.
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Advantageously, according to one aspect of invention, the
bandwidth allocation manager 125 eliminates some of these
problems by dynamically determining bandwidth allocation
based on subscriber criteria. Because the bandwidth is not pre-
allocated to certain types of DTCs that transmit content
according to predetermined delivery modes, the bandwidth
allocation manager can dynamically adjust bandwidth
allocation in response to a subscriber criterion. This allows the
bandwidth allocation manager 125 to either set up a VOD
session according to several well-known methods such as that
described above, or to choose an alternative delivery method to
broadcast the requested VOD service without necessitating a
VOD session. For example, since the bandwidth allocation
manager 125 receives the subscriber request prior to
determining a bandwidth allocation schedule, the bandwidth
allocation manager 125 has the option to fulfill the request
using any available bandwidth. Hence, if no or a small number
of subscribers have requested a particular movie that is planned
to be transmitted according to a pay-per-view model, then the
bandwidth allocation manager can "recapture" that bandwidth
and allocate it to fulfill a subscriber request during the same
time period if it is to result in a more financially advantageous
bandwidth allocation.
Rodriguez 17:46-18:5 (emphasis added).
Thus, Appellant's arguments persuade us that the Examiner erred in
finding Rodriguez describes
evaluating, by a session resource manager apparatus
coupled to said network, said first request against a policy, said
policy specifying a maximum utilization threshold for sessions
of said first category as a maximum allowable number of said
sessions of said first category and a maximum utilization
threshold for sessions of said second category as a maximum
allowable number of said sessions of said second category, said
evaluating of said first request against said policy comprising
determining whether granting said first request would cause
said maximum allowable number of said sessions of said first
category to be exceeded;
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evaluating, by said session resource manager apparatus
coupled to said network, said second request against said
policy, said evaluating of said second request against said
policy comprising determining whether granting said second
request would cause said maximum allowable number of said
sessions of said second category to be exceeded;
as recited in claim 1 because Rodriguez's option to fulfill the request using
any available bandwidth does not indicate a maximum allowable number of
sessions for a first category and a maximum allowable number of sessions
for a second category. In contrast, and as argued by Appellant, Rodriguez
permits the fulfillment of a request using any available bandwidth without
the policy restrictions required by claim 1.
We, therefore, do not sustain the Examiner's anticipation rejection of
claim 1. We also do not sustain the Examiner's rejection of claims 8-11 and
13, which depend from claim 1.
We also do not sustain the Examiner's anticipation rejection of
independent claims 14 and 23-25, for the same reasons discussed above
with respect to claim 1. We also do not sustain the Examiner's anticipation
rejection of claims 15, 19-21, and 29-34, which variously depend from
claims 14 and 23.
THE OBVIOUSNESS REJECTION OF CLAIMS 12, 22, 26, AND 27 OVER
RODRIGUEZ AND SCHLACK
The Examiner does not find Schlack cures the deficiency of
Rodriguez discussed above when addressing claim 1. See Final Act. 22-24;
see also Ans. 29-30.
We, therefore, do not sustain the Examiner's rejection of claims 12,
22, 26, and 27.
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DECISION
The Examiner's decision rejecting claims 1, 8-15, 19-23, 25-27, and
29-34 is reversed.
Because we sustain one ground of rejection for claim 24, the
Examiner's decision rejecting claim 24 is 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)(l).
AFFIRMED-IN-PART
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