Ex Parte Parker et al

Patent Trial and Appeal Board

Sep 6, 2013

11292345 (P.T.A.B. Sep. 6, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte ALISTAIR JOHN PARKER, JEFF FURLONG,
GINO LOUIS DION, and SEAN GORDON HIGGINS
____________________

Appeal 2011-004758
Application 11/292,345
Technology Center 2400
____________________

Before KRISTEN L. DROESCH, PATRICK M. BOUCHER, and
MATTHEW R. CLEMENTS, Administrative Patent Judges.

BOUCHER, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
Introduction
Appellants appeal under 35 U.S.C. § 134(a) from a rejection of claims
1–6, 9–11, 13–16, 18, and 20. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

Illustrative Claim
The claimed subject matter relates to multimedia delivery systems
with instant replay and time-shifted playback (Spec. ¶1).
Claim 1 is illustrative and is reproduced below:
1. A multimedia content delivery server that distributes
multimedia content streams to a plurality of subscriber premise
equipment (SPE) units, wherein the plurality of SPE units select
and join the multimedia content streams using interactive
program guide capabilities at said multimedia content delivery
server, said multimedia content delivery server comprising:
a time-shift unit that provides a time shift functionality to
the plurality of SPE units, said time-shift unit comprising:
a circular buffer that stores multimedia content
received in a live multimedia content stream,
a first sender that bypasses said circular buffer and
multicasts said live multimedia content stream directly to
said SPE units, and
a second sender that accesses said stored
multimedia content from a specific position in said
circular buffer and multicasts a time-shifted variant of
said live multimedia content stream to said SPE units,
wherein said specific position in said circular buffer
confers a predetermined time-shift for said time-shifted
variant of said live multimedia content stream with
respect to said live multimedia content stream; and
an instant replay unit that provides an instant replay
functionality to the plurality of SPE units, said instant replay
unit comprising:
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a plurality of replay buffers, each replay buffer storing T
seconds of said multimedia content, wherein T is different for
each replay buffer,
an instant replay controller that receives an instant replay
request from one of said SPE units and, responsive to said
instant replay request, takes a snapshot copy of T seconds of
said multimedia content from said circular buffer to one of said
replay buffers, wherein each replay buffer is sized for a
different, preset duration, and
a third sender associated with one of said replay buffers
that transmits said snapshot copy to said SPE unit from one of
said replay buffers.

References
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Menard US 6,061,056 May 9, 2000
Fritsch
Basso
Kaminski
Parry
Gardes
US 2002/0124258 A1
US 2002/0124262 A1
US 2002/0199185 A1
US 2005/0235112 A1
US 2006/0095946 A1
Sep. 5, 2002
Sep. 5, 2002
Dec. 26, 2002
Oct. 20, 2005
May 4, 2006

Rejections
The Examiner made the following rejections:
Claims 1–6, 9, 10, 13–16, and 18 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Fritsch, Gardes, Parry, and Kaminski (Ans. 3–
15).
Claims 11 and 20 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Fritsch, Gardes, Parry, Kaminski, and Basso (Ans. 16–
17).

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Appellants’ Contentions
Appellants contend:
1

1. the Examiner erred in rejecting claims 1 and 13 because the
combination of cited references fails to teach or suggest “a second sender
that accesses said stored multimedia content from a specific position in said
circular buffer and multicasts a time-shifted variant of said live multimedia
content stream to said SPE units,” as recited in claim 1 and as
commensurately recited in claim 13 (App. Br. 8–9);
2. the Examiner erred in rejecting claims 1 and 13 because the
combination of cited references fails to teach or suggest “wherein each
replay buffer is sized for a different, predetermined amount of information,”
as recited in claim 1 and as commensurately recited in claim 13 (App. Br. 9–
11; Reply Br. 4–5);
3. the Examiner erred in rejecting claims 1 and 13 because the
combination of cited references fails to teach or suggest “a third sender
associated with one of said replay buffers that transmits said snapshot copy
to said SPE unit from one of said replay buffers,” as recited in claim 1 and as
commensurately recited in claim 13 (App. Br. 11; Reply Br. 5–6);
4. the Examiner erred in rejecting claim 3 because the combination of
references fails to teach or suggest “additional senders that access said
multimedia content from different specific positions in said circular buffer to

1
Separate patentability is not argued for claims 2, 4–6, 9, 11, 14–16, 18, and
20 (references to claim 12 at page 14 of the Appeal Brief are believed to be
intended to refer to claim 20 since claim 12 has been canceled). For each of
these claims, Appellants merely reference the arguments presented for
claims 1 or 13 without presenting any additional arguments to establish
separate patentability. Except for our ultimate decision, these claims are not
discussed further herein.
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provide different predetermined time-shifts Dn,” as recited in claim 3 (App.
Br. 12; Reply Br. 6); and
5. the Examiner erred in rejecting claim 10 because the Examiner
improperly relies on Official Notice (App. Br. 13; Reply Br. 6–7).

ANALYSIS
We have reviewed Appellants’ arguments in the Appeal Brief and
Reply Brief, and have reviewed the Examiner’s response to Appellants’
arguments. Only those arguments actually made by Appellants have been
considered in this decision. Arguments that Appellant did not make in the
Briefs have not been considered and are deemed to be waived. See 37
C.F.R. § 41.37(c)(1)(vii).

First Contention
With respect to Appellants’ first contention, we are not persuaded that
the Examiner erred.
Fritsch is directed generally to “techniques for delivery of media
programs to subscribers over a network” (Fritsch ¶3), with the Examiner
specifically identifying element 316 of Fig. 3A as corresponding to the
“second sender” recited in claim 1 (Ans. 4–5). The Examiner also identifies
elements 614 and 616 in Fig. 20 of Parry as corresponding to the “second
sender” (Ans. 5). Appellants argue that each of these elements is a unicast
element while claims 1 and 13 require “multicast[ing]a time-shifted variant
of said live multimedia content stream” (App. Br. 8) (emphasis added) (see
App. Br. 8–9). We find these arguments unpersuasive because they attack
Fritsch and Parry individually for lack of a teaching where the Examiner has,
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in fact, relied on the combination of those references with Gardes’s teaching
of multicasting (Ans. 6, citing Gardes ¶¶ 27–29). The fact that neither
Fritsch nor Parry teach or suggest a multicasting second sender does not
rebut the obviousness conclusion reached by the Examiner based upon the
combination of their teachings with Gardes. The test for obviousness is
what the combined teachings of the prior art would have suggested to the
hypothetical person of ordinary skill in the art. In re Keller, 642 F.2d 413,
425 (CCPA 1981).
We also disagree with Appellants’ assertion that by disclosing a
unicast element, “Fritsch clearly teaches away from multicasting with a
second sender” (App. Br. 9). A prior-art reference does not teach away from
the claimed subject matter unless the prior-art reference also criticizes,
discredits, or otherwise discourages the solution claimed. See In re Fulton,
391 F.3d 1195, 1201 (Fed. Cir. 2004). Since Appellants have identified no
such criticism, we are unpersuaded that the Examiner has erred.
In addition, we disagree with Appellants’ assertion that “Gardes
would drastically change the principle of operation because any temporal
shifts are ‘proportional to one and the same elementary shift interval’” (App.
Br. 9, citing Gardes ¶15). The teaching value of Gardes is found in its
disclosure of multicasting delivery. What the Examiner has identified is
“the simple substitution of one known element for another” to obtain
predictable results, namely multicasting to multiple parties as taught by
Gardes in place of unicast delivery as used by Fritsch. See KSR Int’l Co. v.
Teleflex Inc., 550 U.S. 398, 417 (2007).

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Second Contention
With respect to Appellants’ second contention, we are not persuaded
that the Examiner erred.
The Examiner finds that Kaminski “discloses a general teaching on
why it would be useful to allow replay buffers … to have different preset
durations” (Ans. 6). Appellants contend that such an “application of
Kaminski’s teaching would drastically change a principle of operation of the
alleged combination of Fritsch, Gardes, and Parry” (App. Br. 10) because
Kaminski teaches buffers having capacities on the order of an hour (App. Br.
10–11; Reply Br. 4–5).
We find this argument unpersuasive because it is incommensurate
with the scope of claims 1 and 13, which recite “tak[ing] a snapshot copy of
T seconds of said multimedia content.” Appellants assert that “[a]ccording
to both the plain meaning of the claims and the definition set forth in the
specification, T would be much smaller than 3600 [seconds]” (Reply. Br. 5).
During patent examination, claims must be given their broadest reasonable
interpretation consistent with the specification. See Phillips v. AWH Corp.,
415 F.3d 1303, 1321 (Fed. Cir. 2005). “Though understanding the claim
language may be aided by explanations contained in the written description,
it is important not to import into a claim limitations that are not part of the
claim. For example, a particular embodiment appearing in the written
description may not be read into a claim when the claim language is broader
than the embodiment” SuperGuide Corp. v. DirecTV Enterprises, Inc., 358
F.3d 872, 875 (Fed. Cir. 2004).
The plain language of claims 1 and 13 imposes no constraint on buffer
capacity. While Appellants’ Specification includes examples of buffer
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capacities on the order of 10 seconds (see, e.g., Specification ¶33), we find a
reliance on these examples to be insufficiently deliberate and precise for us
to afford the claim limitation an interpretation narrower than its plain
meaning. See In re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994). In that
context, we are not persuaded that the Examiner erred in applying
Kaminski’s teaching of buffers having different capacities in combination
with the other cited art.

Third Contention
With respect to Appellants’ third contention, we are not persuaded
that the Examiner erred.
The Examiner identifies the remote computer identified as element 49
in Fig. 1 of Parry as corresponding to the “third sender” recited in claim 1
(Ans. 6). Appellants argue that the Examiner erred because “item 49 in
Parry is a ‘speaker 49 connected to a sound card 57 and printers’” (App. Br.
11, citing Parry ¶38; see Reply Br. 5). This argument is evidently based on
an ambiguity in Fig. 1 of Parry, which includes two instances of element
“49,” a first at the upper right of the drawing that identifies the “speaker”
referred to by Appellants and a second at the lower right of the drawing that
identifies the “remote computer” relied on by the Examiner. We otherwise
agree with the Examiner’s reasoning that Parry’s disclosure of such a remote
computer reasonably suggests the “third sender” recited in claim 1, even in
the absence of disclosure of a “first sender” (see Reply Br. 5).

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Fourth Contention
With respect to Appellants’ fourth contention, we are not persuaded
that the Examiner erred.
Appellants argue that “Gardes clearly does not provide ‘different’
predetermined time shifts because all of the time shifts in Gardes are
“proportional to one and the same elementary shift interval” (App. Br. 12,
citing Gardes ¶37; Reply Br. 6). We disagree. Even if the time shifts taught
by Gardes are “proportional” to an elementary shift interval, they are still
“different,” as recited in claim 3.

Fifth Contention
With respect to Appellants’ fifth contention, we are not persuaded that
the Examiner erred.
In determining claim 10 is unpatentable, the Examiner takes Official
Notice that “the use of dynamic buffer sizing is well known and [it] would
have been obvious to use such that resources are more efficiently used by
assigning buffer sizes pertinent to the replay request size” (Ans. 10).
Appellants contend that “Official Notice is improper because having a T
value of ‘tens of seconds’ is not capable of instant and unquestionable
demonstration” (App. Br. 13; Reply Br. 7).
We are not persuaded by this argument because Appellants did not
properly traverse what the Examiner regards as the knowledge that would
have been generally available to one of ordinary skill in the art at the time of
the invention. Our reviewing court has held that an adequate traversal to an
Examiner’s finding of Official Notice must “contain adequate information or
argument” to create on its face “a reasonable doubt regarding the
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circumstances justifying the … notice” of what is well known to an
ordinarily skilled artisan. In re Boon, 439 F.2d 724, 728 (CCPA 1971). “To
adequately traverse such a finding [of Official Notice], an applicant must
specifically point out the supposed errors in the [E]xaminer’s action, which
would include stating why the noticed fact is not considered to be common
knowledge or well-known in the art.” MPEP §2144.03(C).
We find that Appellants’ arguments do not constitute an adequate
traversal of the Official Notice because Appellants have not specifically
pointed out the supposed errors.

Conclusion
For the foregoing reasons, we (1) sustain the Examiner’s rejections of
claims 1–6, 9, 10, 13–16, and 18 under 35 U.S.C. § 103(a) as unpatentable
over Fritsch, Gardes, Parry, and Kaminski and (2) sustain the Examiner’s
rejections of claims 11 and 20 under 35 U.S.C. § 103(a) as unpatentable over
Fritsch, Gardes, Parry, Kaminski, and Basso.

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DECISION
The Examiner’s decision rejecting claims 1–6, 9–11, 13–16, 18, and
20 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

ELD