Ex Parte Pazos et al

Patent Trial and Appeal Board

Apr 27, 2018

13741367 (P.T.A.B. Apr. 27, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/741,367 01/14/2013
15142 7590 05/01/2018
Arent Fox, LLP and Qualcomm, Incorporated
1717 K Street, NW
Washington, DC 20006-5344
FIRST NAMED INVENTOR
Carlos M.D. Pazos
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.
030284.12020/120932 8178
EXAMINER
ONAMUTI, GBEMILEKE J
ART UNIT PAPER NUMBER
2463
NOTIFICATION DATE DELIVERY MODE
05/01/2018 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):
ocpat_uspto@qualcomm.com
patentdocket@arentfox.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CARLOS M.D. PAZOS, THOMAS STOCKHAMMER, GEORGE
CHERIAN, RALPH AKRAM GHOLMIEH, NAGARAm NAIK,
mN WANG, and CHARLES NUNG LO
Appeal2017-006701
Application 13/741,367
Technology Center 2400
Before MAHSHID D. SAADAT, MARC S. HOFF, 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 20-24 and 32-35. Reply Br. 2. 2 Claims 1-19 and 23-31
were canceled. Id. We have jurisdiction under 35 U.S.C. § 6(b). We
affirm.
1 Appellants identify the real party in interest as Qualcomm Incorporated of
San Diego, California. App. Br. 4.
2 Throughout this opinion, we refer to the Final Rejection ("Final Act.")
mailed April 4, 2016; the Appeal Brief ("App. Br.") filed September 2,
2016; the Examiner's Answer ("Ans.") mailed January 23, 2017; and the
Reply Brief ("Reply Br.") filed March 15, 2017.
Appeal2017-006701
Application 13/741,367
THE INVENTION
Appellants' invention manages a Dynamic Adaptive Streaming
over HTTP (DASH) service. Spec. ,r 2. DASH enables services that
deliver streaming media over HTTP, which is a unicast-transport
protocol. Id. ,r 6. According to the Specification, there exists a need
for parameters supporting broadcast delivery without impacting
DASH's core unicast features. Id. Appellants disclose parameters
that indicate whether data segments are available via broadcast
transmission, unicast transmission, or a combination of both.
Id. ,r 205. One embodiment determines the appropriate transport
protocol to receive the data based on these parameters. Id. ,r,r 199-
200.
Claim 20 is reproduced below with our emphasis:
20. A method operable by a mobile entity in a wireless
system, the method comprising:
receiving a Dynamic Adaptive Streaming over HTTP
(DASH) media presentation description (MPD) that describes
media content, and parameters outside of the MPD that indicate
an availability of data segments corresponding to multiple
representations of the media content via at least one of broadcast
transmission, unicast transmission, or a combination thereof;
determining an appropriate transport protocol for
reception of the data segments from at least one of the broadcast
transmission or the unicast transmission based on the parameters;
selecting one representation from the multiple
representations of the media content based on the parameters and
a criteria of the mobile entity; and
receiving the data segments for the one representation
selected from the multiple representations according to the
appropriate transport protocol.
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Application 13/741,367
THE EVIDENCE
The Examiner relies on the following as evidence:
Gillies et al.
Kondrad et al.
US 2012/0259994 Al
US 2013/0111028 Al
THE REJECTIONS
Oct. 11, 2012
May 2, 2013
Claims 20-24 and 32-35 stand rejected under 35 U.S.C. § I03(a) as
unpatentable over Kondrad and Gillies. Final Act. 2-10.
THE EXAMINER'S FINDINGS
The Examiner finds that Kondrad teaches every limitation recited in
representative3 claim 20 except for the recited parameters outside of an
MPD. Final Act. 2---6. The Examiner concludes that it would have been
obvious to modify Kondrad to receive parameters that indicate data
availability outside the MPD as taught by Gillies, instead of inside the MPD.
Id. at 5-6.
APPELLANTS' CONTENTIONS
In Appellants' view, Kondrad requires that the MPD identify the
multiple access methods. App. Br. 10. Appellants argue that, because
Kondrad requires such an MPD, the Examiner's proposed modification
changes Kondrad' s principle of operation. Id. at 9-11 ( citing MPEP
3 Appellants argue that independent claims 22-24 recite features similar to
the features in independent claim 20, and claims 22-24 are "allowable for
similar reasons" as claim 20. App. Br.16; see also Reply Br. 11. We,
therefore, select independent claim 20 as representative of claims 22-24.
See 37 C.F.R. § 4I.37(c)(l)(iv).
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Application 13/741,367
§ 2143.01 VI (9th ed. Rev. 08.2017, Jan. 2018); In re Ratti, 270 F.2d 810,
813 (CCPA 1959)); Reply Br. 5-7. For similar reasons, Appellants contend
that Kondrad teaches away from receiving the recited parameters outside the
MPD. App. Br. 11-12; Reply Br. 7.
Appellants further argue that Gillies also lacks the recited receiving
step. App. Br. 12-15; Reply Br. 8-9. According to Appellants, Gillies's
MPD-not parameters outside the MPD-identifies an availability.
App. Br. 14. Furthermore, Appellants contend that Gillies's MPD describes
the ultimate output, which would obviate the second recited receiving step in
claim 20. Id. at 12-13.
Lastly, Appellants contend that, because neither Kondrad nor Gillies
teaches or suggests the recited receiving step, the Examiner must have
exercised impermissible hindsight in arriving at the obviousness conclusion.
Id. at 15-16; Reply Br. 9-11.
ANALYSIS
Claim 1 recites, in part,
receiving a Dynamic Adaptive Streaming over HTTP
(DASH) media presentation description (MPD) that describes
media content, and parameters outside of the MP D that indicate
an availability of data segments corresponding to multiple
representations of the media content via at least one of
broadcast transmission, unicast transmission, or a combination
thereof
( emphasis added).
We disagree with Appellants' argument that Kondrad teaches away
from receiving the recited parameters outside the MPD. App. Br. 11-12;
Reply Br. 7. A reference does not teach away "if it merely expresses a
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Application 13/741,367
general preference for an alternative invention but does not 'criticize,
discredit, or otherwise discourage' investigation into the invention claimed."
DePuy Spine, Inc. v. Medtronic Sofamor Danek, Inc., 567 F.3d 1314, 1327
(Fed. Cir. 2009) (quoting In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir.
2004)). Nevertheless, "even if a reference is not found to teach away, its
statements regarding preferences are relevant to a finding regarding whether
a skilled artisan would be motivated to combine that reference with another
reference." Polaris Indus. v. Arctic Cat, Inc., 882 F.3d 1056, 1069 (Fed. Cir.
2018) ( citing Apple Inc. v. Samsung Elecs. Co., 839 F .3d 1034, 1051 n.15
(Fed. Cir. 2016) (en bane)).
Here, Appellants have not pointed to any criticism from Kondrad. See
App. Br. 11-12; Reply Br. 7. At most, Appellants have identified Kondrad's
preference for an MPD that identifies available access methods. App. Br. 10
(citing Kondrad ,r,r 1, 7, 8, 52). Although Kondrad's preferences are
relevant to our obviousness inquiry, we are unpersuaded that the cited
teachings from Kondrad weigh against the Examiner's proposed
combination.
Specifically, Kondrad explains that using a single MPD is a way to
identify available access methods to a DASH client. See, e.g., Kondrad ,r 7.
Kondrad, however, explains that "the MPD may indicate whether the media
presentation is available via one or more unicast, multicast, and/or broadcast
access methods, such as PSS, DVB-H, MBMS, and/or the like." Id. ,r 52
(emphasis added). Kondrad's statement "the MPD may indicate" (id.)
would not have discouraged investigation into MPDs lacking such an
indication. Nor do we read this statement as a requirement, as Appellants do
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(see, e.g., App. Br. 10). Rather, it suggests that other MPDs can be used in
the invention. See id.
In this regard, Kondrad' s teachings are similar to those of Gillies. For
example, Gillies also teaches that an MPD may include uniform resource
locators (URLs) for accessing data via unicast. Gillies ,r 105. But Gillies
expressly teaches an alternative. Id. ,r 112. In particular, Gillies teaches
header data 112 describing characteristics of data segments outside the
MPD. Id. These characteristics include uniform resource locators (URLs)
that indicate the data segments are hosted by a unicast server. See
id. ,r,r 105, 112. That is, although Gillies does teach including the parameter
in the MPD, we agree with the Examiner that Gillies teaches an alternative
embodiment having parameters outside the MPD, as recited. Final Act. 5.
We are unpersuaded by Appellants' argument that Gillies' s MPD
would obviate the second recited receiving step in claim 20. App. Br. 12-
13. First, the Examiner finds that Kondrad, not Gillies, teaches the second
receiving step. See Final Act. 4--5. The Examiner then proposes
incorporating Gillies' s outside parameters in Kondrad' s data. See id. at 5-6.
In this way, Appellants argue against Gillies individually for features that
Gillies was not relied upon to teach. See App. Br. 12-13. Second, Gillies
uses the URL parameter to retrieve the data segments hosted by a unicast
server. See Gillies ,r,r 105, 112. Because the URL parameter can be used for
retrieval, not merely for description (App. Br. 12-13), we are not convinced
that the incorporation of Gillies' s parameter in Kondrad would obviate the
second receiving step.
For at least the reasons discussed above, we disagree that the
Examiner exercised impermissible hindsight in arriving at the obviousness
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conclusion. Id. at 15-16; Reply Br. 9-11. Rather, the Examiner has
supported the obviousness conclusion with articulated reasoning with some
rational underpinning. See Final Act. 6. Specifically, the Examiner explains
that using Gillies' s parameters in Kondrad would have provided the benefits
of Gillies' s file-delivery service. Id. ( citing Gillies ,r 11 ). In the cited
paragraph, Gillies explains that a client can receive some data using a
unicast protocol until the reception of a switch point. Gillies ,r 11. Gillies
can then receive other data via broadcast or multicast. Id. These objectives
are consistent with Kondrad's principle of operation: accessing a media
representation by various transmission methods. See, e.g., Kondrad ,r 8.
The Examiner is merely proposing substituting Gillies's outside parameter
into Kondrad to indicate that the data is available via unicast transmission.
See Final Act. 5-6. On this record, the Examiner's proposed enhancement
uses prior art elements predictably according to their established functions-
an obvious improvement. See KSR Int'! Co. v. Teleflex, Inc., 550 U.S. 398,
417 (2007).
On this record, we sustain the Examiner's rejection of representative
claim 20 as well as claims 22-24, which are not separately argued
(App. Br. 16; Reply Br. 11 ).
Claims 21 and 32-35 depend from one of claims 20 and 22-24. In
arguing for the patentability of claims 21 and 32-35, Appellants refer to the
arguments presented for claims 20 and 22-24. App. Br. 16-17;
Reply Br. 11-12. Thus, for the reasons discussed in connection with claims
20 and 22-24, we also sustain the rejections of claims 21 and 32-35.
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DECISION
We affirm the Examiner's rejection of claims 20-24 and 32-35.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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