Ex Parte HeapDownload PDFPatent Trial and Appeal BoardJun 19, 201411562501 (P.T.A.B. Jun. 19, 2014) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte BRETT HEAP ____________ Appeal 2012-000692 Application 11/562,501 Technology Center 2400 ____________ Before ST. JOHN COURTENAY III, THU A. DANG, and LARRY J. HUME, Administrative Patent Judges. COURTENAY, Administrative Patent Judge. DECISION ON APPEAL Appeal 2012-000692 Application 11/562,501 2 STATEMENT OF THE CASE The Examiner finally rejected claims 1 and 3-7. Claims 2 and 8-15 have been cancelled. Appellant appeals from the final rejection under 35 U.S.C. § 134(a). We have jurisdiction under 35 U.S.C. § 6(b). We affirm. INVENTION This invention relates to “catch-up streaming.” (Title). Claim 1, reproduced below, is representative of the claimed subject matter: 1. A method for transmitting streaming data, comprising the steps of: [a] providing a local server that transmits and receives a data request via a media client having a web browser; [b] providing a remote server configured to stream data upon receiving the data request from a user via the local server, [b1] wherein the-remote server stores first and second media data files; [c] wherein the remote server is configured to send an initial portion of the first media data file in an initial large stream of data directly to the media client upon receipt of the data request; and [d] wherein the remote server is configured to send a remaining portion of the first media data file and the second media data file in a subsequent different stream of data to the local server, [e] wherein the local server transmits the remaining portion of the first media data file and the second media data file to the media client at a relatively slower rate than the initial large stream of data sufficient to allow for seamless display of the first media file and the second media data file through the web browser. (Steps lettered; paragraph returns added). Appeal 2012-000692 Application 11/562,501 3 REJECTIONS R1. Claims 1, 3, 4, and 6 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over the combined teachings and suggestions of U.S. Patent No. 7,191,242 B1 (Mar. 13, 2007) (“Serenyi”) and U.S. Patent Application Pub. No. 2003/0005139 A1 (Jan. 2, 2003) (“Colville”). (Ans. 14). R2. Claim 5 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over the combined teachings and suggestions of Serenyi, Colville, and U.S. Patent No. 7,054,911 B1 (May 30, 2006) (“Lango”). (Ans. 24). R3. Claim 7 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over the combined teachings and suggestions of Serenyi, Colville, and U.S. Patent No. 6,195,680 B1 (Feb. 27, 2001) (“Goldszmidt”). (Ans. 26). GROUPING OF CLAIMS Based on Appellant’s arguments, we decide the appeal of § 103 rejection R1 of claims 1, 3, 4, and 6 on the basis of representative claim 1. See 37 C.F.R. § 41.37(c)(1)(vii)(2004). 1 We address § 103 rejections R2 and R3 separately, infra. 1 Appellant filed a Notice of Appeal on May 16, 2011. The date of filing the Notice of Appeal determines which set of rules applies to an Ex Parte appeal. If a Notice of Appeal is filed prior to January 23, 2012, then the 2004 version of the Board Rules last published in the 2011 edition of Title 37 of the Code of Federal Regulations (37 C.F.R. § 41.1 et seq.) applies to the appeal. See also Manual of Patent Examining Procedure (MPEP) 8th ed., Rev. 8, July 2010. Appeal 2012-000692 Application 11/562,501 4 ANALYSIS We disagree with Appellant’s contentions regarding the Examiner’s rejections of the claims. We adopt as our own: (1) the findings and reasons set forth by the Examiner in the action from which this appeal is taken, and (2) the reasons set forth by the Examiner in the Answer in response to arguments made in Appellant’s Appeal Brief. (Ans. 28-38). We highlight and address specific findings and arguments below: R1. CLAIM 1 A. Regarding the claim 1 limitations: [c] wherein the remote server is configured to send an initial portion of the first media data file in an initial large stream of data . . . ; and [d] wherein the remote server is configured to send a remaining portion of the first media data file and the second media data file in a subsequent different stream of data . . . , (emphasis added), Appellant contends, inter alia, “Colville does, indeed, teach a method of transmitting a single file in two streams: a first stream with a high bitrate and a second stream at a lower bitrate.” (Reply Br. 7 (emphasis added)). Appellant’s contention is not supported by the cited sections of the reference and, therefore, is not persuasive. (Reply Br. 7). Specifically, Colville’s Abstract describes transmitting (1) “an amount of the desired streamable media content” and transmitting, (2) “subsequent portions of the media content,” not sending only a single data file, as Appellant contends (App. Br. 4: “All of the prior art only contemplates sending a single data file.”). (emphasis added). (See also Ans. 31-32). Appeal 2012-000692 Application 11/562,501 5 Appellant also contends neither Serenyi nor Colville teaches both limitations [c] and [d]. (App. Br. 4; Reply Br. 2-8). Appellant’s contention is unpersuasive because Appellant fails to rebut the combined teachings and suggestions of the references, as relied upon by the Examiner. (Ans. 14-21). The Examiner finds, and we agree, Serenyi’s sending media content comprised of media data, requested RTP extensions, and supported RTP extensions would have taught or suggested sending media content comprised of two or more media data files. (Ans. 30-31; Serenyi col. 9, ll. 32-38, col. 2, ll. 33-35). The combination of Colville’s transmitting an initial amount in a fast first stream and subsequent portions of media content in a second stream with Serenyi’s sending media content comprised of multiple data files, would have taught or suggested limitations [c], sending of “an initial portion of the first media data file,” and [d], “a remaining portion of the first media data file and the second media data file.” (Ans. 30-31, 8-9).2 We find one skilled in the art, having knowledge of Colville’s method, when faced with the problem of sending two media data files, would send an initial amount ([c] “initial portion of the first media data file”) and then send the subsequent portions ([d] “remaining portion of the first media data file and the second media data file”).3 2 In the event of further prosecution, we leave it to the Examiner to consider if Appellant’s cited support (App. Br. 3; Spec. 8, ll. 7–10) for the claimed first and second media files is sufficient under the written description requirement of 35 U.S.C. § 112, first paragraph. Specifically, the cited support does not describe any file or portion of a file. 3 The Supreme Court has determined that the conclusion of obviousness can be based on the interrelated teachings of multiple patents and the background knowledge possessed by a person having ordinary skill in the art and that an obviousness “analysis need not seek out precise teachings Appeal 2012-000692 Application 11/562,501 6 For these reasons, on this record, we are not persuaded the Examiner erred. B. Regarding the claim 1 limitations: [b] providing a remote server configured to stream data upon receiving the data request from a user via the local server . . . ; [c] wherein the remote server is configured to send an initial portion . . . directly to the media client upon receipt of the data request; (emphasis added), Appellant contends Colville does not teach or suggest limitations [b] and [c] because Colville does not teach limitation [b]. (Reply Br. 10). Specifically, Appellant contends Colville’s “data request is not sent from a local server. Instead, Colville’s data request is sent directly from the client.” (Reply Br. 10). Appellant also essentially contends Serenyi does not teach or suggest limitations [b] and [c] because individual embodiments of Serenyi do not individually teach both limitations [b] and [c]. (Reply Br. 11; App. Br. 5). Appellant’s contentions that Colville and Serenyi individually do not teach or suggest the limitations at issue are not persuasive because the Examiner relies upon the combined teachings and suggestions of Colville and Serenyi. (Ans. 14-21). Specifically, regarding limitation [b], the Examiner relies upon Serenyi’s request from a client, sent to the remote server via the local caching proxy server, for the teaching of the [b] directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ.” KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 418 (2007). See also Dystar Textilfarben GmbH & Co. Deutschland KG v. C.H. Patrick Co., 464 F.3d 1356, 1368 (Fed. Cir. 2006). Appeal 2012-000692 Application 11/562,501 7 “request.” (Ans. 34-35; Serenyi col. 4, ll. 8-26; Ans. 10, Serenyi Fig. 4, col. 7, ll. 41-54). Regarding limitation [c], the Examiner relies on Colville’s server that streams initial media content directly to a client for the teaching and suggestion of [c] “remote server is configured to send an initial portion of the first media data file in an initial large stream of data directly to the media client.” (Ans. 18; Colville Abstract). The Supreme Court guides “when a patent ‘simply arranges old elements with each performing the same function it had been known to perform’ and yields no more than one would expect from such an arrangement, the combination is obvious.” KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 417 (2007) (quoting Sakraida v. Ag Pro, Inc., 425 U.S. 273, 282 (1976)). Here, we find the combination of Serenyi’s sending the client request to the remote server via the local server (limitation [b]), with Colville’s sending an initial portion of the media content directly to the client (limitation [c]), is merely an arrangement of old elements with each performing the same function it had been known to perform. See KSR, 550 U.S. at 417. (See also Ans. 34-36, 7-8). Moreover, given the breadth of Appellant’s representative claim 1, we are not persuaded that combining the respective familiar elements of the cited references in the manner proffered by the Examiner was “uniquely challenging or difficult for one of ordinary skill in the art” See Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007) (citing KSR, 550 U.S. at 418). Appeal 2012-000692 Application 11/562,501 8 Appellant fails to address and rebut the combined teachings and suggestions of Serenyi and Colville. For these reasons, on this record, we are not persuaded the Examiner erred. Accordingly, we sustain the Examiner’s § 103 rejection R1 of representative claim 1. Claims 3, 4, and 6 fall therewith. See 37 C.F.R. § 41.37(c)(1)(vii)(2004). R2 AND R3 Appellant urges claims 5 and 7 are patentable for the same reasons previously advanced regarding parent claim 1. (App. Br. 6). However, we are not persuaded the Examiner erred regarding the rejection R1 of claim 1, for the reasons discussed above. Accordingly, we sustain the § 103 rejections R2 of claim 5 and R3 of claim 7. DECISION We affirm the Examiner’s rejection R1 of claims 1, 3, 4, and 6 under § 103. We affirm the Examiner’s rejection R2 of claim 5 under § 103. We affirm the Examiner’s rejection R3 of claim 7 under § 103. No time for taking any action connected with this appeal may be extended under 37 C.F.R. § 1.136(a)(1). See 37 C.F.R. § 41.50(f). AFFIRMED msc Copy with citationCopy as parenthetical citation