Ex Parte Sharkey

Patent Trial and Appeal Board

May 18, 2016

11828494 (P.T.A.B. May. 18, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
111828,494 07/26/2007
20991 7590 05/18/2016
THE DIRECTV GROUP, INC.
PA TENT DOCKET ADMINISTRATION
CA I LAI I Al09
2230 E. IMPERIAL HIGHWAY
EL SEGUNDO, CA 90245
FIRST NAMED INVENTOR
Jeffrey L. Sharkey
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.
PD-207046 9434
EXAMINER
VU,NGOCK
ART UNIT PAPER NUMBER
2421
MAILDATE DELIVERY MODE
05/18/2016 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 JEFFREY L. SHARKEY
Appeal2014-004642
Application 11/828,494
Technology Center 2400
Before CARLA M. KRIVAK, JEFFREY S. SMITH, and
JOHN F. HORVATH, Administrative Patent Judges.
KRIVAK, Administrative Patent Judge.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from a final rejection of
claims 1, 4--18, 20-32, 35, and 36. We have jurisdiction under 35 U.S.C.
§ 6(b ).
We affirm.
Appeal2014-004642
Application 11/828,494
STATEMENT OF THE CASE
Appellant's invention is directed to "a system for communicating
broadband content availability through a satellite" (Spec. i-f l ).
Independent claims 1 and 14, reproduced below, are exemplary of the
subject matter on appeal.
1. A method comprising:
generating broadband content availability data for
content available through a broadband network at a user device;
dividing the broadband content availability data into
broadband content availability packets;
communicating the broadband content availability
packets within program guide packets to the user device
through a satellite within a content stream;
selecting broadband content at the user device from the
broadband content availability packets to form a selection; and
communicating content corresponding to the selection to
the user device through the broadband network.
14. A method comprising:
generating metadata corresponding to broadband content
for content available through a broadband network at a user
device;
communicating the metadata comprising a network
descriptor to a user device through a satellite;
selecting a selection at the user device corresponding to a
first broadband content in response to the metadata;
communicating the selection to a content source; and
communicating the first broadband content to the user
device through a broadband communication network.
REFERENCES and REJECTIONS
The Examiner rejected claims 1 and 4--13 under 35 U.S.C. § 103(a)
based upon the teachings of Watson (US 2003/0121047 Al; published June
26, 2003) and Menand (US 5,548,532; issued Aug. 20, 1996).
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Application 11/828,494
The Examiner rejected claims 14--18, 20, 21, 24--32, 35, and 36 under
35 U.S.C. § 103(a) based upon the teachings of Watson and Lawler (US
5,907,323; issued May 25, 1999).
The Examiner rejected claims 22 and 23 under 35 U.S.C. § 103(a)
based upon the teachings of Watson, Lawler, and Ellis (US 6,357,043 Bl;
issued Mar. 12, 2002).
ANALYSIS
Appellant contends the Examiner erred because, as the Examiner
finds, Watson does not "disclose dividing broadband content availability
data into broadband content availability packets," therefore Watson cannot
disclose "communicating the broadband content availability packets within
other packets, such as program guide packets, to a user device through a
satellite within a content stream" (App. Br. 6). Appellant also argues the
Examiner erred in finding Menand discloses "dividing broadband content
availability data into broadband content availability packets" because
"broadband content availability data" is not equivalent to "program guide
data" (id.). Thus, Appellant contends, the combination of Watson and
Menand does not teach or suggest forming packets having certain data
associated with programming data available to a user device and then
incorporating the formed packets into program guide packets," as claimed
(Reply Br. 3). We do not agree.
We agree with and adopt the Examiner's findings as our own (Ans. 2-
5). Particularly, we note there is no definition of program guide packets and
broadband content availability in Appellant's Specification. The Examiner
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Application 11/828,494
relies on paragraph 63 of Appellant's Specification to show broadband
content availability data includes metadata. The metadata may include all or
some of various types of information, such as "a description of the content,
the originating network of the content, if applicable, the location of the
content, various broadband content graphics, a decryption key, a video
preview for the broadband content or a network descriptor" (Spec. i-f63). We
further note, paragraph 64 discloses the "broadband content availability
display 610 may be formed as part of a program guide or as a separate
display or program guide." Appellant only points to paragraph 3 8 and
argues the examples of program packet guides are not the same as
broadband content availability, but does not address paragraph 63. Further,
as the Examiner finds, Watson's paragraphs 19-23, discuss broadcast
content and its transmission. Thus, Watson, at a minimum, suggests
broadband content availability data within the meaning of claim 1.
Appellant contends the combination of Watson and Menard does not
teach "communicating broadband content availability packets within
program guide packets" as recited in claim 1. Reply Br. 3--4. In particular,
Appellant contends the A/V data packets transmitted in Menand, which can
teach "communicating the broadband content availability packets," does not
teach communicating the packets "within program guide packets." Reply
Br. 4. Appellant's contention is inconsistent with the Abstract of Menand,
which teaches sending audio, video, and module packets in transport
packets. Appellant has not persuasively distinguished "communicating the
broadband content availability packets within program guide packets" as
recited in claim 1 from communicating audio, video, and module packets in
transport packets as taught by Menand. Appellant has not presented
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Application 11/828,494
sufficient evidence or argument that "communicating the broadband content
availability packets within program guide packets" would have been
"uniquely challenging or difficult for one of ordinary skill in the art" in light
of the transmit audio, video, and module packets in transport packets taught
by Menand. Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157,
1162 (Fed. Cir. 2007) (citing KSR, 550 U.S. at 418-19). 1 We also agree
with the Examiner that Menand's column 2, at a minimum, suggests one
packet within another (Ans. 4; Menand col. 1, 11. 5-8; col. 2, 11. 32--45; Fig.
1 ). Additionally, the method of claim 1 is not affected by the program guide
packets; that is, the program guide packets do not change the steps of
generating, dividing, communicating, and selecting, they are merely
descriptive of a type of data, and are thus non-functional. 2
Therefore, we sustain the Examiner's rejection of independent claim
1, and claims 4--13 dependent therefrom and not separately argued (App. Br.
8).
1 In the event of any further prosecution we note there is no support
anywhere in Appellant's Specification for Appellant's argument and claim
limitation that the broadband availability packets are within the program
guide packets.
2 See MPEP § 2111.05(III) ("where the claim as a whole is directed [to]
conveying a message or meaning to a human reader independent of the
intended computer system, and/or the computer-readable medium merely
serves as a support for information or data, no functional relationship exists.
For example, a claim to a memory stick containing tables of batting
averages, or tracks of recorded music, utilizes the intended computer system
merely as a support for the information. Such claims are directed toward
conveying meaning to the human reader rather than towards establishing a
functional relationship between recorded data and the computer.")
(Emphasis added)).
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With respect to independent claim 14, Appellant contends the
Examiner has failed to show the references disclose "the limitations of
generating metadata corresponding to broadband content availability data"
and "communicating the metadata including a network descriptor," and
neither Watson nor Lawler, alone or in combination, teach or suggest a
satellite being in the same network as the broadband communication
network" (App. Br. 9). That is, the satellite is a first network and the
broadband communication network is a second network (App. Br. 10). We
do not agree.
The Examiner finds Lawler discloses the network descriptor, as
recited in claim 14, "is a part of metadata" (Ans. 4). Appellant's paragraph
27 of the Specification recites "metadata may include various types of
information including a description of the content, the originating network of
the content, if applicable, the location of the content, various broadband
content graphics, a decryption key, a video preview for the broadband
content or a network descriptor" and paragraph 63 recites the "metadata and
the broadband availability data may be one and the same." Thus, the
Examiner correctly finds the network descriptor "may be associated with
information related to the network. The claim does not preclude the
interpretation of information from EPG tables ... , including network and
affiliation information as disclosed by Lawler. See col. 7, line 53 to col. 8,
line 14" (id.).
With respect to Appellant's contention that the satellite and broadband
communication network are two separate networks, the Examiner finds
Watson discloses the "broadcast network 123 is a satellite provider. See
0018-0020. This indicates that Watson teaches providing information about
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movies or television programs from the content information server 120a to
the viewer device via the satellite" (Ans. 4). We agree. This portion of the
Specification merely recites "the broadband availability data and/or the
metadata is communicated to the user device or devices through the satellite .
. . . the broadband content availability data and/or the metadata are stored in
the user device." Appellant's contention that the satellite in their invention
is in a different network than the broadband communication network is thus
not supported by the Specification (App. Br. 9; App. Br. 3 citing paragraph
65, lines 7-9 as support). We further find this limitation is not in claim 14.
Thus, we sustain the Examiner's rejection of claim 14 and claims 15-
18, 20, 21-32, 35, and 36, dependent therefrom, over the combination of
Watson and Lawler.
DECISION
The Examiner's decision rejecting claims 1, 4--18, 20-32, 35, and 36
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)(l )(iv).
AFFIRMED
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