Ex Parte Noldus et al

Patent Trial and Appeal Board

Feb 28, 2019

14366437 (P.T.A.B. Feb. 28, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/366,437 10/09/2014
102721 7590 03/04/2019
Murphy, Bilak & Homiller/Ericsson
1255 Crescent Green
Suite 200
Cary, NC 27518
FIRST NAMED INVENTOR
Rogier August Caspar Joseph Noldus
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
1009-0994 / P33545 US 1 6126
EXAMINER
SHAO,HONG
ART UNIT PAPER NUMBER
2461
NOTIFICATION DATE DELIVERY MODE
03/04/2019 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
official@mbhiplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ROGIER AUGUST CASPAR JOSEPH NOLDUS
and JOS DEN HARTOG
Appeal 2018-004692
Application 14/366,437
Technology Center 2400
Before JOHN A. EV ANS, SCOTT E. BAIN, and JASON M. REPKO,
Administrative Patent Judges.
REPKO, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants 1 appeal under 35 U.S.C. § 134(a) from the Examiner's
rejection of claims 16-32. App. Br. 2. 2 Claims 1-15 were canceled. We
have jurisdiction under 35 U.S.C. § 6(b ). We affirm-in-part.
1 According to Appellants, the real party in interest is Telefonaktiebolaget
LM Ericsson (publ), a Swedish company. App. Br. 2.
2 Throughout this opinion, we refer to the Final Rejection ("Final Act."),
mailed July 5, 2017; the Appeal Brief ("App. Br."), filed November 29,
2017; the Examiner's Answer ("Ans."), mailed February 2, 2018; and the
Reply Brief ("Reply Br."), filed March 29, 2018.
Appeal 2018-004692
Application 14/366,437
THE INVENTION
Appellants' invention switches from forwarding one media stream to
another in a Voice over Internet Protocol (VoIP) network. Spec. 1 :2-5.
Applications for this switching include personal-greeting services and mid-
call announcements. Id. at 1: 16-17. When switching, the media streams
may overlap in time. Id. at 1 :21-23. During this time, a mixer mixes, e.g.,
fades in or out, the two streams. Id. Current methods have several
drawbacks. Id. at 2:10. For example, synchronization issues may cause an
audible disturbance in the streaming media during switching. Id. at 2: 10-15.
Also the mixer may suddenly increase latency, which leads to buffering
issues. Id. at 2:16-28.
According to the Specification, the invention allows for smooth, ad
hoc, and disturbance-free insertion and removal of a media-mixer device in a
media-stream path. Id. at 3:8-9. To accomplish this, the invention uses two
memories to synchronize different media streams. Id. at 4: 10-16.
Claims 16 and 25 are independent. Claim 16 is reproduced below
with our emphasis:
16. A method for switching from forwarding a first media
stream to forwarding a second media stream to a recipient in a
Voice over Internet Protocol (VoIP) based communications
network, the second media stream having a different originating
source than the first media stream, the method comprising:
while receiving the first media stream, prior to forwarding
the data of the first media stream, storing a first amount of data
of the first media stream in a first memory;
retrieving the first media stream from the first memory,
introducing a first latency in the first media stream, and
forwarding the first media stream to the recipient;
detecting either that reception of the second media stream
is expected by receiving a message indicating that the second
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Application 14/366,437
media stream is forthcoming, or that the start of the second
media stream has been received;
subsequent to receiving the message indicating that a
second media stream is forthcoming, or coincident with the
detecting that the start of the second media stream has been
received, and while forwarding the data of the first media stream
to the recipient, receiving the second media stream and storing a
second amount of data of the second media stream in a second
memory;
responsive to said detecting, stepwise increasing the
latency in the first media stream by stepwise increasing the
amount of data of the first media stream stored in the first
memory, until the first memory stores a third amount of data of
the first media stream, so as to introduce a third latency in the
first media stream, wherein stepwise increasing the amount of
data of the first media stream stored in the first memory
comprises increasing the amount of data from the first amount to
the third amount in multiple steps;
ceasing receiving of the first media stream, and continuing
to forward data of the first media stream contained in the first
memory to the recipient; and
retrieving data of the second media stream from the second
memory and forwarding the second media stream to the
recipient.
App. Br. 17-18.
THE EVIDENCE
The Examiner relies on the following as evidence:
Johansson et al.
Nix
Gupta et al.
Han et al.
WO 2008/069722 A2
US 2009/0285175 Al
US 2011/0167104 Al
US 2011/0185021 Al
3
June 12, 2008
Nov. 19, 2009
July 7, 2011
July 28, 2011
Appeal 2018-004692
Application 14/366,437
THE REJECTIONS
Claims 16-18, 21, 24--26 and 29-32 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Johansson and Nix. Final Act. 5-15.
Claims 19, 20, 22, 27, and 28 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over Johansson, Nix, and Gupta. Final Act. 16-19.
Claim 23 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Johansson, Nix, and Han. Final Act. 20.
THE OBVIOUSNESS REJECTION OVER JOHANSSON AND NIX
The Examiner's Findings
In the § 103 rejection, the Examiner finds that Johansson teaches
every limitation recited in representative3 claim 16 except for, in response to
detecting a change in the media stream, stepwise increasing the buffer
occupancy as recited. Final Act. 5-8. The Examiner finds that Nix teaches
this feature. Id.
Appellants ' Contentions
Appellants argue that claim 16 requires media streams with different
sources. App. Br. 11-12. Appellants argue that Nix lacks a second stream
with a different source. Id. at 9-11. According to Appellants, Nix's streams
contain the same content on different physical communication links.
Id. at 10 (citing Nix ,r 108, Fig. 8a).
3 Appellants argue claims 16 and 25 as a group. See, e.g., App. Br. 13
("Claim 25 includes similar limitations, and its rejection should be reversed
for similar reasons."). We select independent claim 16 as representative of
claims 16 and 25. See 37 C.F.R. § 4I.37(c)(l)(iv).
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Application 14/366,437
Appellants argue that Johansson resets a decoder after detecting a
change of media source. App. Br. 11; Reply Br. 2-3. In Appellants' view,
one of ordinary skill would not have found it obvious to combine Nix's
buffer handling for a handover with Johansson's reset technique.
App. Br. 11; Reply Br. 2-3.
In summary, Appellants argue the Johansson-Nix combination does
not teach or suggest a stepwise increase in data stored from an originating
source in response to detecting data received from a different originating
source, as required by claim 16. App. Br. 9-13; Reply Br. 2--4.
Analysis
Although Appellants' arguments (id.) focus on Nix's lack of a second
stream with a different source, the Examiner's rejection is premised on
Johansson teaching this limitation. See Final Act. 8; Ans. 3. Here, the
Examiner proposes using Nix's buffering technique in Johansson.
Final Act. 8; Ans. 6. Notably, both Nix and Johansson handle media streams
in a VoIP communications session but manage the buffer in different ways.
Ans. 6. For the reasons discussed below, we agree with the Examiner that it
would have been obvious to modify Johansson with Nix's teachings to
perform the recited stepwise increasing required by claim 16. Final Act. 8.
Specifically, Johansson teaches a receiver in a VoIP system that
includes several buffers. Johansson 12, cited in Final Act. 6. Johansson's
jitter buffer stores incoming data packets before decoding. Id. Packet
arrival times may vary, i.e., jitter, from network congestion, timing drift, or
route changes. Id. Johansson uses a jitter buffer to equalize delay variations
so that the user experiences a clear connection. Id. According to the
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Examiner, Johansson does not teach stepwise increasing the buffer's
occupancy. Final Act. 8.
Nix teaches a "step function" that increases a jitter buffer's size.
Nix ,r 189, cited in Final Act. 8. Like Johansson, Nix teaches that a jitter
buffer addresses "unevenly spaced" packet-arrival times. Id. ,r 185. Nix,
though, teaches a gradual lengthening to accommodate the delay
characteristics of the media stream. Id. ,r 189. The Examiner proposes using
Nix's stepwise function in Johansson's system to accommodate the
particular changes in the media's delay profile. Final Act. 8.
We are unpersuaded by Appellants' argument that replacing
Johansson's decoder reset with Nix's stepwise increase would cause
distortion. Reply Br. 3--4. Here, Appellants' argument assumes the
Examiner's proposed combination requires a particular modification to the
prior art. Appellants essentially argue that the Nix's teachings cannot be
bodily incorporated in Johansson. But "[t]he test for obviousness is not
whether the features of a secondary reference may be bodily incorporated
into the structure of the primary reference." In re Keller, 642 F.2d 413, 425
(C.C.P.A. 1981).
On balance, we are unconvinced that the differences in how Nix and
Johansson use jitter buffers would have discouraged skilled artisans from
combining the references. See App. Br. 9--13; Reply Br. 2--4. Appellants
have not shown, for example, that applying Nix's step function to
Johansson's buffers and media streams would have been uniquely
challenging or otherwise beyond the level of ordinarily skilled artisans. See
Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir.
2007). Nor have Appellants shown that using jitter buffers for media with a
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different source would render them unsuitable for their intended purpose to
teach away from such an approach. See In re Gordon, 733 F .2d 900, 902
(Fed. Cir. 1984).
To the contrary, the Examiner shows how Johansson's and Nix's
buffers have similar roles in their respective applications. See Ans. 4---6.
Specifically, like Johansson, Nix uses jitter buffers to handle changes in the
media stream. Compare Nix ,r 185, with Johansson 9: 1--4. The Examiner
explains how Nix's stepwise function would have been used in Johansson-
i.e., to accommodate particular changes in the media's delay profile.
Final Act. 8. In this way, the proposed enhancement uses prior art elements
predictably according to their established functions, which is an obvious
improvement. See KSR Int 'l Co. v. Teleflex, Inc., 550 U.S. 398, 417 (2007).
Thus, we sustain the rejection of claim 16. We also sustain the
rejection of independent claim 25, which is not separately argued. Seen. 3,
supra.
Appellants do not argue claims 17, 21, 24, 26 and 30-32 separately,
which depend from claims 16 and 25 and are rejected under the same
combination. Thus, we also sustain the rejections of these claims.
Claims 18 and 29
Claim 18 recites, in part, "providing a media mixer device in the first
and second media streams and mixing the first and second media streams in
the period between starting forwarding the data of the second media stream
from the second memory and forwarding the last data of the first memory
from the first memory." Claim 29 recites similar limitations.
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In the Johansson-Nix combination, the Examiner finds that Johansson
teaches (1) a mixer and (2) fading-out media from encoder A while fading-in
an announcement from encoder X. Final Act. 9 (citing Johansson 7, 16, Fig.
2 in claim 18's rejection); Final Act. 15 (rejecting claim 29).
Appellants argue that Johansson does not describe how the mixer in
Figure 2 relates to the media-stream buffering. App. Br. 15, 18. According
to Appellants, Johansson does not disclose the particular way that the media
is mixed in the claims or the recited timing requirements. Id. Appellants
argue that, after Johansson resets the decoder, no media frames are available.
Id. at 15 (citing Johansson 7).
We agree that the Examiner has not addressed the memories recited in
claims 18 and 29. In particular, claim 18 requires that the mixing occur in
the period between forwarding the second media stream's data and
forwarding the last of the first memory's data. Thus, claim 18 does not
merely require a mixer with memory. Instead, the claim requires storing
different media streams in two memories at a particular time. 4
To be sure, Johansson fades-in one media stream and fades-out
another. See, e.g., Johansson Fig. 9. Yet the Examiner has not shown that
this is accomplished using the mixer in Figure 2, or that Figure 2 's mixer has
the claimed assignment of data streams to the memories.
Rather, Johansson uses Figure 2 to illustrate a problem in a
communication session between sender/encoder A and receiver/decoder B
4 Although the Examiner finds that claim 18 does not require the mixer with
both memories (Ans. 7), we note that claim 29 expressly requires this
limitation by reciting "the first memory and the second memory are part of a
media mixer device."
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when sender/encoder Xis added as a new source. Id. at 7. That is, Figure 2
is an example arrangement that Johansson uses to illustrate a problem in the
art. See id.
At most, the Examiner has shown that mixers inherently use some
memory to store the streams to be mixed. Ans. 8. But the Examiner has not
shown that it would have been inherent to do so within the recited period
and with the particular assignment to the recited memories in Johansson's
embodiment shown in Figure 9. Id.
Considering the weight of the evidence, we are constrained by this
record to find that the Examiner erred in rejecting claims 18 and 29. For
similar reasons, we also do not sustain the rejection of claim 19, which
depends from claim 18.
THE REMAINING OBVIOUSNESS REJECTIONS
Claims 20, 22, 23, 27, and 28 depend from claims 16 and 25. The
Examiner rejected claim 23 under 35 U.S.C. § 103(a) as unpatentable over
Johansson, Nix, and Han, and claims 20, 22, 27, and 28 as unpatentable over
Johansson, Nix, and Gupta. Final Act. 16-20. Appellants do not argue
these rejections separately. See App. Br.; Reply Br. Thus, for the reasons
discussed in connection with claims 16 and 25, we also sustain the rejections
of claims 20, 22, 23, 27, and 28.
CONCLUSIONS
We sustain the rejections of claims 16, 17, 20-28, and 30-32 under
§ 103, but we do not sustain the rejections of claims 18, 19 and 29 under
§ 103.
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DECISION
We affirm-in-part the Examiner's decision to reject claims 16-32.
No time period for taking any subsequent action in connection with
this appeal maybe extended under 37 C.F.R. § 1.136(a)(l)(iv). See 37
C.F.R. § 4I.50(f).
AFFIRMED-IN-PART
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