Ex Parte Kuether et al

Patent Trial and Appeal Board

Jun 17, 2014

11931450 (P.T.A.B. Jun. 17, 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.
11/931,450 10/31/2007 David J. Kuether PD-207020 1200
20991 7590 06/17/2014
THE DIRECTV GROUP, INC.
PATENT DOCKET ADMINISTRATION
CA / LA1 / A109
2230 E. IMPERIAL HIGHWAY
EL SEGUNDO, CA 90245
EXAMINER
ALAM, MUSHFIKH I
ART UNIT PAPER NUMBER
2426
MAIL DATE DELIVERY MODE
06/17/2014 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 DAVID J. KUETHER and DANA J. GREER
___________

Appeal 2011-012055
Application 11/931,450
Technology Center 2400
____________

Before JOSEPH F. RUGGIERO, JASON V. MORGAN, and
DANIEL N. FISHMAN, Administrative Patent Judges.

FISHMAN, Administrative Patent Judge.

DECISION ON APPEAL1

1 Throughout this Decision, we refer to Appellants’ Appeal Brief (“App.
Br.” filed February 18, 2011), Appellants’ Reply Brief (“Reply Br.” filed
July 12, 2011), the original Specification (“Spec.” filed October 31, 2007),
and the Examiner’s Answer (“Ans.” mailed May 12, 2011) for the respective
positions of Appellants and the Examiner.
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2

This is an appeal under 35 U.S.C. § 134(a) of finally rejected claims
1-9, 11-15, 18-21, and 23-25. Claims 10, 16, 17, and 22 are cancelled. We
have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
STATEMENT OF THE CASE
THE INVENTION
Appellants’ invention relates to communicating lost content segments
of prior broadcast programs or content to a user device. Spec. ¶ 0001.
Claims 1 and 25, reproduced below, are illustrative:
1. A method comprising:
communicating content to a user device through a first
network;
storing content in a memory of the user device;
determining a lost content segment exists;
generating a request for the lost content segment at the
user device;
communicating the request for the lost content to a
service provider;
communicating the lost content segment to the user
device using a second network different than the first network;
receiving the lost content segment at the user device from
the service provider; and
storing the lost content segment in the memory of the
user device.

25. A system comprising:
a service provider comprising:
a capture system receiving a broadcast
transport stream corresponding to content, tagging
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the broadcasted transport stream and storing the
content in a storage system to form previously
broadcasted stored content; and
a program retrieval system for retrieving the
previously broadcasted stored content,
wherein the storage system comprises a short term
storage module and a long term storage module and a file
management system for moving files from the short term
storage module to the long term storage module.

THE REJECTIONS
Claims 1-4, 6-9, 11-15, and 18-21 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over Barsness (US 20008/0141309 A1) and
Brodersen (US 2008/0066135 A1).
Claims 5, 23, and 24 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Barsness, Brodersen, and Carlucci (US 2004/0244058
A1).2
Claim 25 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Barsness, Brodersen, Carlucci, and Raz (US 2005/0114568 A1).3

2 Claim 23 depends from independent claim 25 and claim 24 depends from
claim 23. The Examiner indicates claims 23 and 24 are rejected over the
combination of Barsness, Brodersen, and Carlucci (Ans. 7-9) but relies on
Barsness, Brodersen, Carlucci, and Raz in rejecting independent claim 25
from which claims 23 and 24 depend (directly and indirectly, respectively).
Ans. 9-10 (see also n.3 below). Appellants do not challenge this
discrepancy in the rejection of claim 23 and 24. We find this discrepancy to
be harmless error and review claims 23 and 24 as rejected over the
combination of Brasness, Brodersen, Carlucci, and Raz.
3 We note the Examiner failed to identify Raz in the summary of references
included in the combination applied to reject claim 25. Ans. 9. However,
the Examiner applied Raz in the body of the rejection and Appellants
responded to the rejection as including Raz in the combination. App. Br.
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Only those arguments actually made by Appellants have been
considered in this decision. Arguments that Appellants did not make in the
Briefs are deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(vii) (2010).
We have reviewed the Examiner's rejections in light of Appellants’
arguments that the Examiner has erred. App. Br. 6-11; Reply Br. 2-8. We
disagree with Appellants’ conclusions. We adopt as our own the findings
and reasons set forth by the Examiner in the action from which this appeal is
taken and as set forth by the Examiner in the Examiner’s Answer in response
to Appellants’ Appeal Brief (see Ans. 10-15). However, we highlight and
address specific arguments and findings for emphasis as follows.

CLAIMS 1-9, 11-15, 18-21, 23, AND 24
ISSUE 1
Appellants’ arguments raise the issue: Has the Examiner erred by
finding Barsness and Brodersen teach a lost content segment as recited in
claim 1?
ANALYSIS 1
Appellants more specifically argue the Examiner’s interpretation of a
lost content segment as recited in claim 1 is unreasonably broad in view of
Appellants’ Specification. Id. (citing Spec. ¶ 0065, ll. 6-12). Appellants
contend, “Thus, a lost content segment refers to a missing portion (or

9-10. Furthermore, the Examiner indicates Brodersen is a reference within
the combination relied upon in rejecting claim 25 but does not refer to the
teachings of Brodersen in the body of the rejection of claim 25. Id.
Appellants do not challenge the superfluous inclusion of Brodersen in
rejecting claim 25. Therefore, we find the exclusion of Raz and inclusion of
Brodersen in the summary of the rejection of claim 25 to be harmless error.
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segment) of originally transmitted content. As a lost content segment is a
missing segment of originally transmitted content, the lost content segment
includes data of the same type as the originally transmitted content.” App.
Br. 6.
We are not persuaded the Examiner’s interpretation is in error. The
Examiner explains that the broadest reasonable interpretation of lost content
segment is broader than exemplary embodiments disclosed in the
Specification. Ans. 12. We agree. “Though understanding the claim
language may be aided by the explanations contained in the written
description, it is important not to import into a claim limitations that are not
a part of the claim.” SuperGuide Corp. v. DirecTV Enters., Inc., 358 F.3d
870, 875 (Fed. Cir. 2004). “Although an inventor is indeed free to define the
specific terms used to describe [the] invention, this must be done with
reasonable clarity, deliberateness, and precision.” In re Paulsen, 30 F.3d
1475, 1480 (Fed. Cir. 1994). Appellants refer to Specification paragraph
0065 as defining a lost content segment. App. Br. 6. Paragraph 0065 reads
in pertinent part:
When receiving the content, lost segments may be formed in
the content. The lost segment corresponds to a portion or less
than the entire piece of content. In step 312, a lost content
segment or segments is determined. The lost content segments
may be determined in various ways, including looking for lost
signals such as audio, video or both upon receiving the content
signals, reviewing a discontinuity of content headers, or the
like.
We find no clear, deliberate, precise definition of a lost content segment in
this portion of the Specification but rather find permissive, non-exclusive
language discussing an exemplary embodiment that determines lost content
segments.
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Furthermore, even accepting, arguendo, Appellants’ paragraph 0065
as clearly defining a lost content segment, we agree with the Examiner (see,
e.g., Ans. 3) that Barsness paragraph 0064 teaches “determining a lost
content segment.” Specifically, Barsness paragraph 0064 discloses a user
interface that determines lost content in a saved program based on a message
indicating there is an interruption in the saved program.
In view of the above discussion, we are not persuaded the Examiner
erred in finding Barsness and Brodersen teach or reasonably suggest a lost
content segment as recited in claim 1.
ISSUE 2
Appellants’ arguments raise the issue: Has the Examiner erred in
finding the combination of Barsness and Brodersen teaches or suggests
“communicating content to a user device through a first network . . . [and]
communicating the lost content segment to the user device using a second
network different than the first network,” as recited in claim 1?
ANALYSIS 2
The Examiner relies on Brodersen paragraph 0069 for teaching the
recited use of a first and different second network. Ans. 4. Appellants argue
the Examiner erred because:
In paragraph [0069], Brodersen discloses a media processing
system that receives video data and metadata. The video data is
received over a first network. The metadata is received over a
second network. The metadata does not refer to a lost content
segment, but rather refers to programming information related
to the video data. The metadata is not data missing from the
video data.
App. Br. 8. We are not persuaded the Examiner erred. The Examiner relies
on Barsness for teaching communicating the content and the lost content
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segment over a single communication channel and relies on Brodersen
merely for showing it is known to use a first network for communicating one
type of data and to use a second network to communicate another type of
data (Ans. 13) and thus, the Examiner finds the combination meets the
limitations of claim 1 (see, e.g., Ans. 4). We agree. Appellants’ argument
improperly attacks the references separately while the rejection is based on
the combined teachings of the references. See, e.g., In re Keller, 642 F.2d
413, 426 (CCPA 1981); see also In re Merck & Co., 800 F.2d 1091, 1097
(Fed. Cir. 1986).
In view of the above discussion, we are not persuaded that the
Examiner erred in finding the combination of Barsness and Brodersen
teaches or suggests “communicating content to a user device through a first
network . . . [and] communicating the lost content segment to the user
device using a second network different than the first network,” as recited in
claim 1.
For the reasons above, we sustain the rejection of independent claim
1. Appellants do not separately argue independent claim 15 or dependent
claims 2-4, 6-9, 11-14, and 18-21, which therefore fall with claim 1. App
Br. 9.

CLAIM 25
ISSUE 3
Appellants’ arguments raise the issue: Has the Examiner erred by
finding that the combination of Brasness, Brodersen, Carlucci, and Raz fails
to disclose “a service provider comprising: a capture system,” as recited in
claim 25?
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ANALYSIS
Appellants argue the Examiner erred because memory 202 of
Barsness (Fig. 2 element 202; ¶¶ 0045, 0065) is part of computer 200 that
communicates with a content provider 195 and Appellants assert content
provider 195 is the recited “service provider” of claim 25. App. Br. 10. In
other words, Appellants contend memory 202 is part of computer 200, not
part of content provider 195, and thus conclude memory 202 is not the
recited service provider, which comprises the capture system. We disagree.
Initially we note there is no limiting definition of either “service provider” or
“capture system” in Appellants’ Specification. Rather, claim 25 merely
requires there is some component (a service provider) that comprises other
components (a capture system and a program retrieval system), each of
which, in turn, provides certain recited functions. Thus, the Examiner
explains computer 200 of Barsness discloses a service provider as claimed.
Ans. 14. We agree. We find computer 200 of Barsness comprises
components (e.g., memory 202 and controller 176 of Fig. 2) that provide the
recited functions of the capture system and the program retrieval system (as
described in ¶¶ 0045, 0064, 0065) and thus meets the limitations of the
recited service provider.
In view of the above discussion, we are not persuaded the Examiner
erred by finding that the combination discloses “a service provider
comprising: a capture system,” as recited in claim 25.
ISSUE 4
Appellants’ arguments raise the issue: Has the Examiner erred by
finding that the combination of Brasness, Brodersen, Carlucci, and Raz fails
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to disclose “tagging the broadcasted transport stream,” as recited in claim
25.
ANALYSIS
Appellants argue the references fail to disclose tagging a received
broadcast. App. Br. 11. We disagree. Appellants contend the Specification
discloses, “Tagging may refer to, for example, inserting data (e.g., program-
associated data) into a received bit stream. The data may be inserted into a
header of the received bit stream for identification of a specific program or
portions of the program.” Id. (citing Spec. ¶ 0040). As noted above,
disclosure of an exemplary embodiment does not provide a clear definition
that limits interpretation of these terms in the claim and thus the Examiner is
required to apply a broadest reasonable interpretation. See Ans. 14-15. The
Examiner finds Barsness’ teachings in paragraphs 0064 and 0065 regarding
a title and interruption indicator associated with a saved program meets the
limitation of tagging as recited in claim 25. Ans. 15. We agree.
In view of the above discussion, we are not persuaded that the
Examiner erred by finding that the combination of Brasness, Brodersen,
Carlucci, and Raz discloses “tagging the broadcasted transport stream,” as
recited in claim 25.
For the reasons above, we sustain the rejection of independent claim
25.

CLAIMS 5, 23, AND 24
Claim 5 depends from claim 1. Claim 23 depends from claim 25 and
claim 24 depends from claim 23. Appellants do not argue claims 5, 23, and
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24 separately with particularity (App. Br. 9-10) and thus, for the reasons
above, we sustain the rejection of claim 5, 23, and 24.

DECISION
For the reasons discussed above, the Examiner’s decision to reject
claims 1-9, 11-15, 18-21, and 23-25 under 35 U.S.C. § 103(a) 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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