Ex Parte Proidl

Board of Patent Appeals and Interferences

Sep 14, 2010

09954654 (B.P.A.I. Sep. 14, 2010)

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.
09/954,654 09/18/2001 Adolf Proidl AT 000053 7510
24737 7590 09/15/2010
PHILIPS INTELLECTUAL PROPERTY & STANDARDS
P.O. BOX 3001
BRIARCLIFF MANOR, NY 10510
EXAMINER
TANG, KAREN C
ART UNIT PAPER NUMBER
2451
MAIL DATE DELIVERY MODE
09/15/2010 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte ADOLF PROIDL
____________________

Appeal 2009-007647
Application 09/954,6541
Technology Center 2400

____________________

Before ROBERT E. NAPPI, KENNETH W. HAIRSTON,
and MARC S. HOFF, Administrative Patent Judges.

HOFF, Administrative Patent Judge.

DECISION ON APPEAL2

1 The real party in interest is Koninklijke Philips Electronics N.V.
2 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or filing a request for rehearing, as
recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE” (paper
delivery mode) or the “NOTIFICATION DATE” (electronic delivery mode)
shown on the PTOL-90A cover letter attached to this decision.
Appeal 2009-007647
Application 09/954,654

STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from a Final Rejection of
claims 1-20. We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.
Appellant’s invention relates to an internet receiving apparatus (i.e.
internet radio receiver or internet television or internet reader) that stores
address information (ASI) of information servers which broadcast data over
the internet. A quality test means, included within the internet receiving
apparatus, tests whether the received data has satisfactory quality. When the
detected quality value of the received data is below a quality threshold value,
the quality test means sends an activation information signal to the address
retrieval means to retrieve from the address server an updated ASI (Abstract;
Spec. 6:27-7:10).
Claim 1 is exemplary:
1. An internet receiving arrangement for receiving information data
stored in information servers connected to the internet, the arrangement
having address retrieval means which, when activation information is
present, are adapted to retrieve collective address information from an
address server operatively connected to the address retrieval means of the
internet, the collective address information identifying those information
servers from which information data processable by the internet receiving
arrangement can be retrieved, and having information retrieval means for
retrieving the processable information data from an information server
identified by the retrieved collective address information, and having quality
test means for testing the information data retrieved and received by the
information retrieval means and for supplying the activation information to
the address retrieval means when the quality of the received information data
is below a quality threshold value.

2
Appeal 2009-007647
Application 09/954,654

The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Proidl US 2002/0049849 A1 Apr. 25, 2002
Kiraly US 2002/0059592 A1 May 16, 2002
Madhavapeddi US 2005/0271071 A1 Dec. 8, 2005
AAPA, Kerbango Radio (Kerbango), pp. 1-3

Claims 1, 2, 4, 6-12, 14, and 16-20 stand rejected under 35 U.S.C.
§ 102(e) as being anticipated by Kiraly.
Claims 3 and 13 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Kiraly in view of Kerbango.
Claims 5 and 15 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Kiraly in view of Madhavapeddi.
Rather than repeat the arguments of Appellant or the Examiner, we
make reference to the Appeal Brief (filed October 2, 2007), the Reply Brief
(filed June 16, 2008), and the Examiner’s Answer (mailed April 15, 2008),
for their respective details.

ISSUE
Appellant contends that Kiraly does not disclose the required claim
limitation of a “[q]uality test means for supplying the activation information
to the address retrieval means when the quality of the received information
data is below a quality threshold value” (App. Br. 11; Reply Br. 3).
Specifically, Appellant asserts that Kiraly merely monitors packet rates and
the buffer content level or number of packets stored in buffers (App. Br. 10).
Appellant argues further that Kiraly is not concerned with quality of
3
Appeal 2009-007647
Application 09/954,654

reception, but rather is concerned with the quantity of reception (App. Br.
12). Finally, Appellant contends that the word "quality" does not appear in
Kiraly (App. Br. 12).
Appellant’s contentions present us with the following dispositive
issue:
Does Kiraly disclose an internet receiving apparatus that includes a
“quality test means for testing the information data retrieved and received by
the information retrieval means and for supplying the activation information
to the address retrieval means when the quality of the received information
data is below a quality threshold value”?

FINDINGS OF FACT
The following Findings of Fact (FF) are shown by a preponderance of
the evidence.
The Invention
1. The quality testing means measures the quality of the incoming
data comparing it to a quality threshold value which may be a given jitter
value or a given packet failure rate. The package failure rate is “a
percentage of the data packets expected in the continuous data stream of
received audio data AD, which is allowed to be missing before processing of
the received audio data AD becomes substantially impossible. . . . The jitter
value indicates how strongly the data transfer rate . . . of the received
continuous data stream is allowed to fluctuate so as to guarantee a
continuous audio reproduction.” (Spec. 6:27-7:10).
4
Appeal 2009-007647
Application 09/954,654

Kiraly
2. Kiraly discloses that each information receiver and
retransmitter (IRRT) monitors the number of unrendered data packets stored
within its own transmission buffers. When the number of unrendered data
packets falls below a threshold level, the IRRT signals its near-empty
condition to the Chaincast manager (CCM) such that a different upstream
IRRT can be assigned to it. Specifically, transmission buffer 1000 of an
IRRT 1001 receiving and storing time-stamped data packets from a
chaincast source. Buffer 1000 is partitioned by a rendering pointer 1030 into
two portions: a buffer forward (TBF) 1010 for storing the information to be
rendered and buffer past (TBP) 1020 for storing the information that has
already been rendered. Rendering pointer 1030 is pointing to the specific
data packet(s) that is currently rendered. If the number of data packets falls
below the "buffer low" pointer 1050, IRRT 1001 will signal its chaincast
source to send more data packets. If the number of data packets falls below
the "near empty" pointer 1040, IRRT 1001 will signal the CCM to assign
another chaincast source for the IRRT 1001. As a result, the transmission
buffer 1000 is maintained at full level, wherein fluctuations in data packet
rate are minimized. (Fig. 10, ¶¶ [0073] and [0074]).

PRINCIPLES OF LAW
Anticipation
Anticipation pursuant to 35 U.S.C § 102 is established when a single
prior art reference discloses expressly or under the principles of inherency
each and every limitation of the claimed invention. Atlas Powder Co. v.
5
Appeal 2009-007647
Application 09/954,654

IRECO Inc., 190 F.3d 1342, 1347 (Fed. Cir. 1999); In re Paulsen, 30 F.3d
1475, 1478-79 (Fed. Cir. 1994).
Obviousness
On the issue of obviousness, the Supreme Court has stated that “the
obviousness analysis cannot be confined by a formalistic conception of the
words teaching, suggestion, and motivation.” KSR Int’l Co. v. Teleflex Inc.,
550 U.S. 398, 419 (2007). Further, the Court stated “[t]he combination of
familiar elements according to known methods is likely to be obvious when
it does no more than yield predictable results.” Id. at 416.

ANALYSIS
Rejection of claims 1, 2, 4, 6-12, 14, and 16-20 under 35 U.S.C. § 102(e)
Independent claim 1 recites “quality test means for testing the
information data retrieved and received by the information retrieval means
and for supplying the activation information to the address retrieval means
when the quality of the received information data is below a quality
threshold value.” Independent claim 11 recites a claim limitation similar in
scope.
We consider Appellant’s arguments to be persuasive to show
Examiner error. Specifically, we agree with Appellant that Kiraly does not
disclose testing the quality of the data received; rather, Kiraly discloses
testing the quantity of the data received (App. Br. 11-12). Kiraly discloses
that each IRRT monitors the number of unrendered data packets stored
within its own transmission buffers (FF 2). When the number of unrendered
data packets falls below a first threshold level, “buffer low,” the IRRT
requests that the source send more data packets (FF 2). When the number of
6
Appeal 2009-007647
Application 09/954,654

unrendered data packets falls below a second threshold level, “near empty,”
the IRRT signals its near-empty condition to the Chaincast manager (CCM)
to command it to assign a different upstream IRRT or information source
(FF 2). Kiraly is silent as to testing the quality of the data. Even if the data
transmitted has poor quality, the system of Kiraly would merely detect the
number of data packets that are stored in the buffer (FF 2). The system of
Kiraly would not detect the poor quality and request a different source.
Thus, within the system of Kiraly, transmission of data having poor quality
would go undetected.
Therefore, we find that Kiraly does not disclose an internet radio that
includes “quality test means for testing the information data retrieved and
received by the information retrieval means and for supplying the activation
information to the address retrieval means when the quality of the received
information data is below a quality threshold value.” As a result, we will not
sustain the Examiner’s § 102 rejection of independent claims 1 and 11 and
that of dependent claims 2, 4, 6-10, 12, 14, and 16-20.
Rejection of claims 3, 5, 13, and 15 under 35 U.S.C. § 103(a)
As noted supra, we reversed the rejection of claims 1 and 11 from
which claims 3, 5, 13, and 15 respectively depend. We therefore reverse the
Examiner’s rejections of claims 3, 5, 13, and 15 under 35 U.S.C. § 103, for
the same reasons expressed with respect to the rejection of parent claims 1
and 11, supra, and for the additional reason that the references to Kerbango
and Madhavapeddi fail to cure the noted shortcoming in the teachings of
Kiraly.

7
Appeal 2009-007647
Application 09/954,654

CONCLUSION
The references do not disclose an internet receiving apparatus that
includes a “quality test means for testing the information data retrieved and
received by the information retrieval means and for supplying the activation
information to the address retrieval means when the quality of the received
information data is below a quality threshold value.”

ORDER
The Examiner’s rejection of claims 1-20 is reversed.

8
Appeal 2009-007647
Application 09/954,654

REVERSED

ELD

PHILIPS INTELLECTUAL PROPERTY & STANDARDS
P.O. BOX 3001
BRIARCLIFF MANOR, NY 10510
9