Ex Parte Jung et al

Patent Trial and Appeal Board

Oct 25, 2013

11895622 (P.T.A.B. Oct. 25, 2013)

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.
11/895,622 08/24/2007 Edward K.Y. Jung SE1-0453-US 1939
80118 7590 10/28/2013
Constellation Law Group, PLLC
P.O. Box 580
Tracyton, WA 98393
EXAMINER
NGUYEN, THU V
ART UNIT PAPER NUMBER
2452
MAIL DATE DELIVERY MODE
10/28/2013 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 EDWARD K.Y. JUNG, ROYCE A. LEVIEN, ROBERT W.
LORD, MARK A. MALAMUD, and JOHN D. RINALDO JR.
____________

Appeal 2011-004705
Application 11/895,622
Technology Center 2400
____________

Before ELENI MANTIS MERCADER, DEBRA K. STEPHENS, and
CATHERINE SHIANG, 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 1-8, 10-22, and 25-27. We have jurisdiction under
35 U.S.C. § 6(b). We affirm.

STATEMENT OF THE CASE
The present invention relates to predicted concurrent streaming
program selection. See generally Spec., 1. Claim 1 is illustrative:
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Application 11/895,622

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1. A method, comprising:
determining a characteristic of a streaming content selected by a user
and currently being displayed;
identifying a concurrently available streaming content in response to
the determined characteristic, including identifying a common characteristic
shared by the steaming content and the concurrently available streaming
content; and
saving at least a portion of the identified concurrently available
streaming content.

THE REJECTION
Claims 1-8, 10-22, and 25-27 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Mei (US 2009/0006368 A1) and Jutzi (US
2003/0046683 A1). See Ans. 4-9.

ISSUES
Under 35 U.S.C. § 103, has the Examiner erred by (i) finding that Mei
and Jutzi collectively teach saving at least a portion of the identified
concurrently available streaming content as recited in claim 1; and (ii)
improperly combining the teachings of Mei and Jutzi?

ANALYSIS
Claims 1-8 and 10-20
On this record, we find that the Examiner did not err in rejecting claim
1.
Appellants assert that Mei and Jutzi do not collectively teach the
disputed claim limitation. See Br. 23-33. Appellants also argue that Jutzi’s
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cache does not save the identified concurrently available streaming content.
See Br. 31. Appellants further assert that the Examiner has not provided
“objectively verifiable evidence” of what the references teach. Br. 33.
We disagree with Appellants’ arguments, and agree with the
Examiner’s conclusions. We adopt the Examiner’s reasoning and findings
as our own. See Ans. 4-5, 10-11. We emphasize the following: The
Examiner correctly finds that Mei’s Figure 4 and paragraph 52 teach
identifying a recommended source video object (mapped to the concurrently
available streaming content). See Ans. 4, 11, Mei, ¶ 52; Fig. 4. The
Examiner also finds that Jutzi’s paragraph 14 teaches storing (mapped to
saving) selective broadcast content in a content cache. See Ans. 4, 10; Jutzi,
¶ 14. Therefore, the Examiner correctly finds that applying Jutzi’s saving
technique to Mei’s identified recommended source video object teaches
“saving at least a portion of the identified concurrently available streaming
content” as recited in claim 1.
We also agree with the Examiner that Jutzi alone teaches “saving at
least a portion of the identified concurrently available streaming content.”
See Ans. 10-11.
Appellants further assert that Jutzi’s cache is not an intelligent cache,
and is a storage mechanism associated with billing, as opposed to
contributing to the user’s enjoyment. See Br. 31.
Appellants’ assertion is unpersuasive because it is not commensurate
with the scope of claim 1.
Appellants also assert that the Examiner has used impermissible
hindsight in combining the references. See Br. 33.
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We disagree with Appellants’ arguments, and agree with the
Examiner’s conclusions. We adopt the Examiner’s reasoning and findings
as our own. See Ans. 4-5, 10-11. We emphasize the Examiner has provided
articulated reasoning with a rational underpinning as to why one skilled in
the art would have found it obvious to combine the teachings of Mei and
Jutzi (Ans. 5). Providing the Jutzi saving technique in the Mei method
would have predictably used prior art elements according to their established
functions—an obvious improvement. See KSR Int’l Co. v. Teleflex Inc., 550
U.S. 398, 417 (2007).
Further, Appellants have not presented sufficient evidence or
argument to persuade us of error as to the Examiner’s findings or that the
Examiner improperly combined the references.
Therefore, we sustain the Examiner’s rejection of claim 1.
Regarding claims 2-8 and 10-20, Appellants argue that they are
patentable for the same reasons as claim 1. See Br. 34. Thus, Appellants’
arguments are unpersuasive.
Regarding claim 15, Appellants further contend that Mei and Jutzi do
not collectively teach “wherein the saving at least a portion of the identified
concurrently available streaming content further includes: receiving and
saving at least a portion of the identified concurrently available streaming
content.” See Br. 35-42. We disagree with Appellants’ arguments, and
agree with the Examiner’s conclusions. We adopt the Examiner’s reasoning
and findings as our own. See Ans. 4-5, 8, 10-11.
Regarding claim 16, Appellants further contend that Mei and Jutzi do
not collectively teach “wherein the saving at least a portion of the identified
concurrently available streaming content further includes: receiving, saving,
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and outputting the identified concurrently available streaming content.” See
Br. 42-49. We disagree with Appellants’ arguments, and agree with the
Examiner’s conclusions. We adopt the Examiner’s reasoning and findings
as our own. See Ans. 4-5, 8, 10-12.
Accordingly, we sustain the Examiner’s rejection of claims 1-8 and
10-20.

Claims 21, 22, 25 and 26
Appellants further assert that Jutzi’s cache is not an intelligent cache,
and is a storage mechanism associated with billing, as opposed to
contributing to the user’s enjoyment. See Br. 53.
We disagree with Appellants’ arguments, and agree with the
Examiner’s conclusions. We adopt the Examiner’s reasoning and findings
as our own. See Ans. 4-5, 9-11.
Therefore and for similar reasons discussed above with respect claim
1, we sustain the Examiner’s rejection of claim 21.
Regarding claims 22, 25, 26, Appellants argue that they are patentable
for the same reasons as claim 21. See Br. 55-56. Thus, Appellants’
arguments are unpersuasive.
Accordingly, we sustain the Examiner’s rejection of claims 21, 22, 25,
26.

Claim 27
For similar reasons discussed above with respect claim 1, we sustain
the Examiner’s rejection of claim 27.

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ORDER
The Examiner’s decision rejecting claims 1-8, 10-22, and 25-27 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)(1)(iv).

AFFIRMED

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