Ex Parte Keren et al

Board of Patent Appeals and Interferences

Mar 12, 2012

09770767 (B.P.A.I. Mar. 12, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte AVISHAI KEREN, MEIR FEDER, and OFIR PAZ
____________________

Appeal 2009-011988
Application No. 09/770,7671
Technology Center 2400
____________________

Before MARC S. HOFF, CARLA M. KRIVAK, and ELENI MANTIS
MERCADER, Administrative Patent Judges.

HOFF, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from a Final Rejection of
claims 94-111 and 128-139. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part.

1 The real party in interest is Microsoft Corporation.
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Appellants’ invention concerns a method of remote computer access.
The method comprises, in a server, generating a compressed video stream
representing a display for one or more computer programs and receiving
continuous user interaction via a remote client that changes one or more
elements of the display, at least one of the display elements changed being
an “unmodified object.” The method further calls for modifying the
unmodified object to produce a modified object, wherein the modification is
performed independently of the executed computer program so that the
modified object will be more efficiently converted to a compressed video
stream. The method further comprises generating a compressed video
stream by converting at least the modified object into the compressed video
stream for rendering at least a portion of the display of the executed
computer program at a display device at the client (Spec. 12, 18, 24; claim
94).
Claim 128 is exemplary of the claims on appeal:
128. In a server that provides remote client access to one or
more computer programs, a method of determining when to
generate a compressed video stream representing a display for
the one or more computer programs by monitoring changes to
the display, the method comprising:

executing a computer program at a server, wherein the
execution of the computer program generates display objects
from a set of display commands, the display objects are at least
a portion of a display for said computer program;

identifying changes of said display which are responsive
to at least one type of continuous user interaction command
received from a remote client

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determining whether said changes warrant an update to
an image based at least in part on one or more of available
bandwidth, available computing power, or type of user
connection; and

upon determining said changes do warrant an update,
processing said changes and converting said display commands
into a compressed video stream, wherein said changes are
inserted into said compressed video stream at an update frame
rate corresponding to a priority assigned to other portions of the
display that are unchanged and such that changes to said image
are inserted into the compressed video stream at a faster rate
than compressed data that does not include changes to said
image.

The Examiner relies upon the following prior art in rejecting the
claims on appeal:
Bulman US 5,623,587 Apr. 22, 1997
Huang US 6,175,663 B1 Jan. 16, 2001
Hsu US 6,195,692 B1 Feb. 27, 2001
(filed Jun. 02, 1997)
Chen US 6,278,466 B1 Aug. 21, 2001
(filed Jun. 11, 1998)
Catlow US 6,445,874 B1 Sep. 03, 2002
(filed Feb. 10, 1998)

Claims 94-99 and 137 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Chen in view of Hsu.
Claims 100 and 101 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Chen in view of Hsu and Bulman.
Claims 102-111 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Chen in view of Hsu, Bulman, and Huang.
Claims 128-136, 138, and 139 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Chen in view of Hsu and Catlow.
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Throughout this decision, we make reference to the Appeal Brief
(“App. Br.,” filed April 9, 2007) and the Examiner’s Answer (“Ans.,”
mailed July 31, 2007) for their respective details.
ISSUES
With respect to independent claim 94, Appellants argue that the
Examiner admits that Chen fails to disclose continuous user interaction
(App. Br. 10) and that neither Chen nor Hsu disclose modifying an
unmodified object at the server (where the display elements are generated)
(App. Br. 10-11).
With respect to independent claim 128, Appellants restate the
arguments made for claim 94. Appellants further argue, inter alia, that
Catlow fails to teach inserting changes to an image at an update frame rate
which is faster than that of data without display changes (App. Br. 13-14).
Appellants’ contentions present us with the following issues:
1. Does the combination of Chen and Hsu teach or fairly suggest
continuous user interaction?
2. Does the combination of Chen and Hsu teach or fairly suggest
modifying an unmodified object at the server?
3. Does the combination of Chen, Hsu, and Catlow teach or fairly
suggest inserting image changes into a compressed video stream at an update
frame rate that is faster than that of data without image changes?
PRINCIPLES OF LAW
Section 103(a) forbids issuance of a patent when ‘the
differences between the subject matter sought to be patented
and the prior art are such that the subject matter as a whole
would have been obvious at the time the invention was made to
a person having ordinary skill in the art to which said subject
matter pertains.’
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KSR Int'l Co. v. Teleflex, Inc., 550 U.S. 398, 406 (2007). The question of
obviousness is resolved on the basis of underlying factual determinations
including (1) the scope and content of the prior art, (2) any differences
between the claimed subject matter and the prior art, (3) the level of skill in
the art, and (4) where in evidence, so-called secondary considerations.
Graham v. John Deere Co., 383 U.S. 1, 17-18 (1966). See also KSR, 550
U.S. at 407, (“While the sequence of these questions might be reordered in
any particular case, the [Graham] factors continue to define the inquiry that
controls.”)
ANALYSIS
CLAIMS 94-111, 132, AND 134-138
We select claim 94 as representative of this group of claims pursuant
to our authority under 37 C.F.R. § 41.37(c)(1)(vii).
We are not persuaded by Appellants’ arguments, summarized supra,
that the Examiner erred in rejecting representative claim 94.
Appellants’ first argument that, as acknowledged in the final rejection,
Chen fails to teach the claimed “continuous user interaction,” is not relevant
to a determination of Examiner error. The Examiner relies on Hsu, rather
than Chen, to teach the claimed feature (Ans. 4).
Appellants assert, in support of their second argument, that Chen
discloses that “any such modifications [sic] is performed by the server
system 16 which is very different from the animation authoring system 12
which generates the display elements” (App. Br. 11). This argument is not
germane to the claimed invention, which recites a compressed video stream
representing a display at a server. Appellants have not shown how Chen
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fails to teach “modifying … [an] unmodified object … independently of said
executed computer program,” as claim 94 recites.
Last, we find Appellants’ argument that “[n]owhere does Chen teach
or suggest that the modifying of an unmodified object be performed at the
server where the current program (which generates the display objects)
executes” (App. Br. 11), to be contradictory in view of Appellants’
argument, noted supra, that Chen teaches modifications being performed by
server system 16 (id.).
Accordingly, we conclude that the Examiner did not err in rejecting
claim 94 under § 103. We further conclude that the Examiner did not err in
rejecting claims 95-111, 132, and 134-138, argued together with claim 94,
under § 103. We will sustain the Examiner’s rejections.
CLAIMS 128-131, 133, AND 139
We are persuaded by Appellants’ argument that Chen in view of
Hsu and Catlow does not teach or fairly suggest inserting changes into
the compressed video stream at a higher frame rate than compressed data
that does not include image changes (App. Br. 13-14). We do not agree
with the Examiner’s finding that Catlow teaches this feature. We have
reviewed Catlow and find no mention of inserting image changes at a
higher rate than data that does not include image changes. The Examiner
also concludes that a higher frame rate for image changes “would have
been obvious” from the teachings of Chen (Ans. 10), but the Examiner
provides no evidentiary support for the conclusion.
We therefore conclude that the Examiner erred in rejecting claims
128, as well as claims 129-131, 133, and 139 dependent therefrom, under
§ 103. We will not sustain the rejection.
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CONCLUSION
1. The combination of Chen and Hsu teaches continuous user
interaction.
2. The combination of Chen and Hsu teaches modifying an
unmodified object at the server.
3. The combination of Chen, Hsu, and Catlow does not teach or fairly
suggest inserting image changes into a compressed video stream at an update
frame rate that is faster than that of data without image changes.
ORDER
The Examiner’s rejection of claims 94-111, 132, and 134-138 is
affirmed.
The Examiner’s rejection of claims 128-131, 133, and 139 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)(iv).
AFFIRMED-IN-PART

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