Ex Parte Mallika

Patent Trial and Appeal Board

Feb 28, 2017

14295977 (P.T.A.B. Feb. 28, 2017)

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.
14/295,977 06/04/2014 N. Naga Mallika P2010-07-14.1290110.515C1 4383
70336 7590 02/28/2017
Seed IP Law Group LLP/EchoStar (290110)
701 FIFTH AVENUE
SUITE 5400
SEATTLE, WA 98104
EXAMINER
FOGG, CYNTHIA M
ART UNIT PAPER NUMBER
2427
MAIL DATE DELIVERY MODE
02/28/2017 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 N. NAGA MALLIKA
Appeal 2016-006313
Application 14/295,977
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
STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s Final
Rejection of claims 1—4, 8—11, and 15—20. Claims 5—7 and 12—14 are
cancelled.1 We have jurisdiction under 35 U.S.C. § 6(b).
We Affirm-in-Part.
1 Both the Final “Office Action Summary” and the “Notice of Panel
Decision from Pre-Appeal Brief Review” incorrectly indicate claims 1—20
were rejected. However, as pointed out by Appellant (App. Br. 2, 14),
claims 5—7 and 12—14 were canceled by the amendment entered on April 16,
2015, before the Final Action.
Appeal 2016-006313
Application 14/295,977
The Invention
The disclosed and claimed invention on appeal relates to handling of
disruptions that occur in content streams received at a player device from a
content retransmitter. Spec. p. 1.
Representative Claim
1. A method for handling disruption in content streams
received at a player device from a content retransmitter, the
method comprising:
a player device monitoring bandwidth of a
communication connection utilized to receive the first portion
of content at the player device from the content retransmitter
wherein the first portion of content is encoded at a first
resolution level;
the player device signaling the content retransmitter to
encode a second portion of the content at a second resolution
level when the player device determines that the bandwidth of
the communication connection has decreased below a threshold
value;
the player device locating substitute content that is
related to the first portion of the content; and
the player device obtaining the substitute content to
present instead of the second portion of the content when the
second resolution level is below a minimum threshold
resolution level.
(Contested limitation emphasized).
Rejections
Rl. Claims 1—4, 9-11, and 15—20 are rejected under 35
U.S.C. §103(a) as being unpatentable over the combined teachings and
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Application 14/295,977
suggestions of Radford et al. (US 2002/0144276 Al, published Oct. 3,
2002), and Plotkin et al. (WO 01/86456 Al, published Nov. 15, 2001).
R2. Claim 8 is rejected under 35 U.S.C. §103(a) as being
unpatentable over the combined teachings and suggestions of Radford,
Plotkin, and Unger (US 2006/0109915 Al, published May 25, 2006).
Grouping of Claims
Based upon Appellant’s arguments, we decide the appeal of Rejection
R1 of claims 1, 2, 4, 9-11, and 15—20 on the basis of representative claim 1.
See 37 C.F.R. § 41.37(c)(l)(iv). We address Rejection R1 of separately
argued dependent claim 3, infra. We decide the appeal of Rejection R2 of
separately argued dependent claim 8, infra.
ANALYSIS
We have considered all of Appellant’s arguments and any evidence
presented. Arguments not made are waived. 37 C.F.R. § 41.37(c)(l)(iv).
Rejection R1 of Representative Claim 1
Issue: Under 35 U.S.C. § 103, did the Examiner err by finding the
cited combination of Radford and Plotkin would have taught or suggested
the contested limitation:
the player device signaling the content retransmitter to
encode a second portion of the content at a second resolution
level when the player device determines that the bandwidth of
the communication connection has decreased below a threshold
value;
within the meaning of representative claim 1? 2
2 We give the contested claim limitations the broadest reasonable
interpretation consistent with the Specification. See In re Morris, 111 F.3d
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Application 14/295,977
Contested Limitation
Regarding the contested limitation of claim 1, Appellant contends:
This adjustment in quality by the user in Radford is not the result
of the player device determining that the bandwidth of the
communication connection has decreased below a specific
threshold value, but is instead in response to a specific user
request (see the portion of paragraph 33 of Radford above).
The user making this determination in Radford instead of the
player device clearly does not teach the player device making the
determination.
(App. Br. 10).
We observe Appellant’s argument narrowly focuses on a specific
embodiment in Radford (133) where the user requests a quality level of
content.
However, our reviewing court guides: “[I]n a section 103 inquiry,
‘the fact that a specific [embodiment] is taught to be preferred is not
controlling, since all disclosures of the prior art, including unpreferred
embodiments, must be considered.’ ” Merck & Co., Inc. v. Biocraft Labs.,
Inc., 874 F.2d 804, 807 (Fed. Cir. 1989) (quoting In re Lamberti, 545 F.2d
747, 750 (CCPA 1976)). Moreover, “[cjombining two embodiments
disclosed adjacent to each other in a prior art patent does not require a leap
1048, 1054 (Fed. Cir. 1997). Cf. Spec. 14,11. 23-29 (“While the present
disclosure has been described with reference to various embodiments, it will
be understood that these embodiments are illustrative and that the scope of
the disclosure is not limited to them. Many variations, modifications,
additions, and improvements are possible.”) (Emphasis added).
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Application 14/295,977
of inventiveness.” Boston Scientific Scimed, Inc. v. Cordis Corp., 554 F.3d
982, 991 (Fed. Cir. 2009).
This reasoning is applicable here. The Examiner also cites to
embodiments in paragraphs 21 and 25, inter alia, of Radford. (Final Act. 5).
We are not persuaded by Appellant’s arguments because, in reviewing the
evidence, we find Radford’s computer program (121), which determines the
connection speed of the client device and is installed on the client device,
teaches or at least suggests the disputed “player device.” (Final Act. 4—5,
Ans. 3, Radford, par. 21). Radford additionally teaches (125) when the
connection speed is less than a threshold “q”, the data is delivered as an
audio file, instead of a high-quality streaming video file. (Final Act., 5,
Ans. 3, Radford,! 25). We find this substitution in Radford of an audio file
when the connection speed is less than a threshold teaches or at least
suggests the disputed limitation, “the player device signaling the content
retransmitter to encode a second portion of the content at a second resolution
level when the player device determines that the bandwidth of the
communication connection has decreased below a threshold value,” as
recited in claim 1.
Given the aforementioned evidence, we find the combination of
Radford and Plotkin would have taught or suggested the contested
limitation, within the meaning of claim l.3 For the aforementioned reasons,
3 “[T]he question under 35 U.S.C. § 103 is not merely what the references
expressly teach but what they would have suggested to one of ordinary skill
in the art at the time the invention was made.” Merck & Co., Inc. v. Biocraft
Laboratories, Inc., 874 F. 2d 804, 807—808 (Fed. Cir. 1989) (citation
omitted); see also MPEP § 2123.
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Application 14/295,977
and based upon a preponderance of the evidence, we find Appellant’s
arguments regarding the contested limitation of claim 1 are not persuasive.
Because Appellant has not persuaded us the Examiner erred, we sustain
§103 rejection R1 of representative independent claim 1, and the rejection
of the associated grouped claims, which fall with claim 1. See Grouping of
Claims, supra.
Rejection R1 of Dependent Claim 3
Claim 3 recites:
The method of claim 2, further comprising receiving a user input
specifying to present the substitute content instead of the
second portion of the content. (Emphasis added).
Appellant contends:
Dependent claim 3 recites "receiving a user input specifying to
present the substitute content instead of the second portion of
the content". . . Radford does not disclose this feature.
App. Br. 12. (Emphasis added).
Appellant further contends:
The "slide show" and "soundtrack" of Radford is not substitute
content, but the same content at a lower quality level. . .
Therefore, there is no content being substituted, but instead
content being removed to lower the quality level (i.e., some
frames being removed resulting in the slide show or all frames
being removed resulting in just the soundtrack or audio only).
(Id.)
As an initial matter of claim construction, we look to Appellant’s
Specification for context. We conclude the Examiner’s broad but reasonable
interpretation of “substitute content” (Ans. 5) to include the slide show
having a limited number of images, or a soundtrack, as described by Radford
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(11 8, 28), is consistent with Appellant’s Specification, which does not
provide a limiting definition for “substitute content.” (Claim 3).
Although the Specification (8) provides several examples of what
“substitute content” may include, these non-limiting, exemplary descriptions
do not preclude the Examiner’s broad but reasonable interpretation. In
particular, the Specification describes: “the player application may locate
and obtain substitute content which is not identical to the received content,
but is related to the received content.” (Spec. 7, emphasis added).
Given this context {id.), we agree with the Examiner’s finding (Final
Act. 7) that Radford’s descriptions (H 8, 9, 28, 29) of delivering lower
quality content, or only audio content, teaches or at least suggests “substitute
content” within the meaning of claim 3. We agree with the Examiner’s
finding because lower quality content, or audio-only content, is not identical
but is “substitute content that is related to the first portion of the content,” as
recited in claim 1, from which claim 3 indirectly depends.
Therefore, on this record, we are not persuaded the Examiner’s
construction of the contested claim term “substitute content” is overly broad
or unreasonable.4 Ans. 4—5; Claim 3.
Accordingly, Appellant has not provided sufficient evidence or
argument to persuade us of any reversible error in the Examiner's reading of
the contested limitation on the cited prior art. Therefore, we sustain the
Examiner's obviousness rejection R1 of dependent claim 3.
4 Because “applicants may amend claims to narrow their scope, a broad
construction during prosecution creates no unfairness to the applicant or
patentee.” In re ICON Health and Fitness, Inc., 496 F.3d 1374, 1379 (Fed.
Cir. 2007) (citation omitted).
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Rejection R2 of Dependent Claim 8
Claim 8 recites:
The method of claim 1, wherein the player device determines that
the bandwidth of the communication connection has decreased
below the threshold value by measuring a number of frames of
the first portion of the content dropped by the player device
during at least one of decoding the first portion of the content or
rendering the first portion of the content. (Emphasis added).
Appellant contends “paragraph 65 of Unger mentions nothing about
measuring a number of dropped frames.” (App. Br. 13).
We do not find a teaching of the disputed claim 8 limitation, “by
measuring a number of frames of the first portion of the content dropped
by the player device” in the cited sections of Unger. (Emphasis added). (See
Final Act. 18; Ans. 5). Therefore, for essentially the same reasons argued by
Appellant (App. Br. 13), we reverse the Examiner’s rejection R2 of
dependent claim 8.
DECISION
We reverse the Examiner's decision rejecting claim 8 under 35 U.S.C.
§ 103(a).
We affirm the Examiner's decision rejecting claims 1—4, 9—11, and
15-20 under 35 U.S.C. § 103(a).
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). See 37 C.F.R.
§ 41.50(f).
AFFIRMED-IN-PART
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