Ex Parte KISEL et al

Patent Trials and Appeals Board

Dec 3, 2014

11958367 - (D) (P.T.A.B. Dec. 3, 2014)

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.
11/958,367 12/17/2007 Andrey KISEL LUTZ 200791 1004
48116 7590 12/03/2014
FAY SHARPE/LUCENT
1228 Euclid Avenue, 5th Floor
The Halle Building
Cleveland, OH 44115-1843
EXAMINER
SALL, EL HADJI MALICK
ART UNIT PAPER NUMBER
2457
MAIL DATE DELIVERY MODE
12/03/2014 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 ANDREY KISEL and DAVID ROBINSON
____________________

Appeal 2012-007491
Application 11/958,367
Technology Center 2400
____________________

Before ROBERT E. NAPPI, BRUCE R. WINSOR, and
JEFFREY A. STEPHENS, Administrative Patent Judges.

STEPHENS, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellants seek our review under 35 U.S.C. § 134(a) from the
Examiner’s rejection of claims 1–11. We have jurisdiction under 35 U.S.C.
§ 6(b).
We affirm.

Claimed Subject Matter
The invention generally relates to distributing non-real-time media
over a communication network. Abstract. Claim 1, reproduced below, is
illustrative:
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1. A method for distributing non real-time media in a non
real-time media distribution system, said non real-time media
distribution system comprising a non-real time media server
and a non-real time media client, said non-real time media
server and said media client being coupled over a
communications network, said method comprising the steps of:
a. distributing said non-real time media to said non real-
time media client, over said communications network coupling
said media server to said media client, and
b. sending a real-time control message from a second
control protocol agent at said non-real time media client to a
first control protocol agent at said media server for controlling
said distributing non real-time media, wherein said step of
distributing said non real-time media from said non real time
server to said media client is based on said real-time
distribution control message.

Rejections
Claims 1 and 3–11 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Weinberger (US 6,938,258 B1, issued Aug. 30, 2005) and
Kwon (US 2007/0168489 A1, published July 19, 2007). Ans. 4–11.1
Claim 2 stands rejected under 35 U.S.C. § 103(a) as unpatentable over
Weinberger, Kwon, and Gross (US 2007/0015508 A1, published Jan. 18,
2007). Ans. 12–13.

1 The Examiner includes claim 2 in the group of claims rejected as
unpatentable over Weinberger and Kwon, but no substantive explanation of
the rejection is provided. Ans. 4.
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ANALYSIS
Claim 1
Appellants argue the combination of Weinberger and Kwon does not
teach distribution of non-real-time media from a server to a client based on a
real-time control message, as recited in claim 1. The Examiner finds
Weinberger does not explicitly teach this limitation, and finds that Kwon
“teaches sending a real-time control message (control message) from a
second control protocol agent (graphical user interface module) at said non-
real time media client (client) to a first control protocol agent (local area
control module) at said media server (server) for controlling said distributing
non real-time media.” Ans. 5–6 (citing Kwon ¶ 15). Appellants contend
Kwon does not distinguish between a real-time message and a non-real-time
message, that Kwon explicitly teaches that both messages are the same type
of message, and that Kwon does not disclose a real-time control message.
Appeal Br. 11–12.
We are not persuaded that the Examiner erred in finding Kwon
teaches a real-time control message. The Examiner refers (see Ans. 6) to
paragraph 15 of Kwon, which teaches “a client having a graphical user
interface through which a user inputs a control message for controlling a
device and recognizes a response message to the input control message.”
Kwon need not distinguish between real-time messages and non-real-time
messages in order to teach a real-time control message. The Examiner’s
implicit interpretation of “real-time control message” encompasses control
messages not indicated to be acted upon at a time other than when received.
See generally Ans. 13–15. In the absence of a contrary definition in the
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Specification, this interpretation is reasonable and consistent with the
Specification.
Appellants argue that the control and response messages in Kwon are
generated in eXtensible Markup Language (XML) and that this language is
known to be a rule-based language. Appeal Br. 12. Appellants have not,
however, presented persuasive evidence or argument that an XML message
cannot be a “real-time control message” under the broadest reasonable
interpretation of that term relied on by the Examiner, or that XML dictates
that a message is either real-time or non-real-time. Moreover, the
Examiner’s finding that the response messages in Kwon are non-real-time
(Ans. 14) is not necessary to the rejection. The Examiner articulates
reasoning for including Kwon’s real-time control message to control
distribution of media in Weinberger. See Ans. 5–6. The Examiner also
finds that the media distributed in Weinberger includes non-real-time media,
such as audio and video on demand. Ans. 13, 14 (citing Weinberger
Abstract (“The system is configured and operated using software to provide
passenger entertainment services including audio and video on-demand . . .
.”)). Under the combined teachings of Weinberger and Kwon, distribution
of non-real-time media is based on a real-time control message.
We also do not agree with Appellants that the reasoning provided by
the Examiner supporting the conclusion of obviousness is insufficient. The
Examiner reasons:
It would have been obvious to one of ordinary skill in the
art at the time the invention was made to modify the on demand
video distribution of Weinberger in view of the teaching of the
control message of Kwon . . . in order to provide a client having
a graphical user interface through which a user controls a
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device and recognizes a response message to the input control
message.
Ans. 6.
Appellants argue the Examiner has not identified a motivation “to
replace the control message of Kwon with a real time control message and
have the response messages be non real time control messages.” Appeal Br.
14. Appellants’ argument is unpersuasive. As discussed above, we agree
with the Examiner’s finding that Kwon’s control message is a real-time
control message as claimed. Further, Kwon’s response messages need not
be “non real time” messages because the teaching of the control message in
Kwon is applied by the Examiner to Weinberger’s teaching of distribution of
non-real-time media such as on demand video or audio, as recited in claim 1.
See Ans. 5–6.
Appellants also argue that the Examiner’s reasoning is conclusory and
does not point out how the modifications to Weinberger are to be made. Id.
The Examiner’s rejection, however, identifies the modification one of skill
in the art would have been motivated to make, see Ans. 6, and Appellants do
not present persuasive evidence or reasoning that the technical aspects of the
modification would have been beyond the level of one of ordinary skill in
the art. We agree with the Examiner that one of ordinary skill in the art
would be motivated to use control messages taught in Kwon for the same
purpose they are used in Kwon—to control devices. In other words, the
control messages in Kwon would be recognized as providing the control that
is necessary and desirable to accomplish the results sought in Weinberger.
In addition, Appellants argue that because Weinberger already has a
user interface, there is no reason why one of ordinary skill in the art would
look to Kwon to provide a graphical user interface (GUI) for controlling the
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devices in Weinberger. Appeal Br. 14 (citing Wenberger col. 8, ll. 49–65).
Appellants also recognize that Weinberger teaches control of the equipment
used in media distribution. Id. at 13 (quoting Weinberger col. 9, ll. 61–63).
Similarities in structure and function need not detract from the reasons one
of ordinary skill in the art would have to incorporate additional teachings,
and in fact may enhance the motivation to do so. To the extent Appellants
argue that Kwon’s disclosure adds nothing to the user interface and/or
control already taught in Weinberger, we are not persuaded that potentially
cumulative teachings in Kwon diminish the apparent reasons for combining
the references. For emphasis only, we note that the combination of
Weinberger and Kwon articulated by the Examiner is merely a combination
of familiar elements according to known methods that does no more than
yield predictable results, see KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398,
416 (2007); in other words, a predictable variation that a person of ordinary
skill can implement, id. at 417. Accordingly, we sustain the rejection of
claim 1 under 35 U.S.C. § 103(a) as unpatentable over Weinberger and
Kwon. No separate arguments are presented with respect to claims 3–11,
and we sustain the rejection of these claims for the same reasons.

Claim 2
Claim 2 depends from claim 1 and provides that the method “further
comprises the step of determining a type of said real-time control message
and a content of said real-time control message based on at least one
condition.” Appellants argue that Gross, the additional reference relied on
by the Examiner, does not disclose how type and content of a control
message are determined. Appeal Br. 16–17. The Examiner finds that Gross
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teaches determining type and content of a control message based on at least
one of the message type and content. Ans. 12. The Examiner refers to claim
1 of Gross, which includes steps of “determining by a network unit of the
mobile communication system a message type of a control message
transmitted to a mobile unit” and “determining message content of the
control message.” The broadest reasonable interpretation of “based on at
least one condition” in the context of claim 2 includes the message type and
content on which the determinations taught in Gross are based. The
Specification does not appear to provide a narrower definition, or even an
example that would suggest the type and content of the control message
must be determined based on some other condition. The cited portion of
Gross thus teaches “how” the type and content of the control messages are
determined to a similar extent as described in Appellants’ Specification. We
are not persuaded that the Examiner’s findings with respect to this limitation
are in error.
Appellants also argue that Gross does not specify that its control
messages are real-time messages. Appeal Br. 17. The Examiner finds,
however, that Kwon teaches real-time control messages, as discussed above.
See Ans. 5–6. Gross is not relied on for this aspect of the claim. As found
by the Examiner, the combined teachings of the references teach all
limitations of claim 2. See Ans. 12–13. For emphasis, Gross also does not
indicate that its control message is non-real-time, and thus teaches “real-time
control message” under the broadest reasonable interpretation of the term
discussed above with respect to claim 1.
Accordingly, we sustain the rejection of claim 2 under 35 U.S.C.
§ 103(a) as unpatentable over Weinberger, Kwon, and Gross.
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DECISION
The Examiner’s decision to reject claims 1–11 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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