Ex Parte Shipley et al

Patent Trial and Appeal Board

Mar 27, 2017

14092406 (P.T.A.B. Mar. 27, 2017)

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.
14/092,406 11/27/2013 Trevor Daniel Shipley 9597 1048
7590 03/29/201728004
SPRINT
6391 SPRINT PARKWAY
KSOPHTO101-Z2100
OVERLAND PARK, KS 66251-2100
EXAMINER
YENKE, BRIAN P
ART UNIT PAPER NUMBER
2422
NOTIFICATION DATE DELIVERY MODE
03/29/2017 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):
6450patdocs @ sprint.com
steven.j.funk@sprint.com
sprint @ setterroche. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte TREVOR DANIEL SHIPLEY, BENJAMIN P. BLINN, and
JASON W. RINCKER
Appeal 2016-006967
Application 14/092,4061
Technology Center 2400
Before JOHN A. EVANS, JOHN P. PINKERTON, and
JOHN D. HAMANN, Administrative Patent Judges.
EVANS, Administrative Patent Judge.
DECISION ON APPEAL
Appellants seek our review under 35 U.S.C. § 134(a) of the
Examiner’s Final Rejection of Claims 1—20, all the claims in the application.
App. Br. 2. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.2
1 The Appeal Brief identifies Sprint Communications Company L.P. as the
real party in interest. App. Br. 2.
2 Rather than reiterate the arguments of Appellants and the Examiner, we
refer to the Appeal Brief (filed Jan. 15, 2016, “App. Br.”), the Examiner’s
Answer (mailed May 6, 2016, “Ans.”), the Final Action (mailed August 17,
2015, “Final Act.”), and the Specification (filed November 27, 2013,
“Spec.”) for their respective details.
Appeal 2016-006967
Application 14/092,406
STATEMENT OF THE CASE
The claims relate to a wireless communication device that displays an
identifier of video presentation quality for an identified video. See Abstract.
Claims 1 and 11 are independent. An understanding of the invention
can be derived from a reading of exemplary Claim 1, which is reproduced
below with some formatting added:
1. A method of operating a wireless communication device
that estimates video presentation quality comprising:
identifying a video;
processing wireless communication device configuration
data, which includes information about components in the
wireless communication device, and wireless network
performance data to estimate the video presentation quality of
the identified video;
displaying a video presentation activator that graphically
indicates presentation quality information prior to initializing a
download and display of the identified video, wherein the
presentation quality information comprises the wireless
communication device’s capacity to play the video, a wireless
communication network’s capacity to play the video, an
estimated picture resolution, and an estimated initial buffer
delay to play the video and wherein a user has an option to play
the video, select a next higher video quality, or select a next
faster buffering encoding; and
initiating the download and display of the identified
video based on the option selected by the user.
2
Appeal 2016-006967
Application 14/092,406
References and Rejection
The Examiner relies upon the prior art as follows:
US 2003/0002862 A1Rodriguez et al.
Sayko et al.
Glen
Raake et al.
Lipman et al.
US 2009/0063561 Al
US 2009/0153734 Al
US 2009/0244289 Al
US 2014/0365889 Al
Jan. 2, 2003
(“Rodriguez”)
Mar. 5, 2009
(“Sayko”)
June 18, 2009
Oct. 1, 2009
(“Raake”)
Priority Dec. 28, 2011
(“Lipman”)
The claims stand rejected as follows:
1. Claims 1, 3—11, and 13—20 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Sayko, Raake, and Lipman. Pinal Act. 2—3.
2. Claims 1—20 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Lipman and Rodriguez. Pinal Act. 3—12.
3. Claims 1, 3—11, and 13—20 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Sayko, Raake, Lipman, Rodriguez, and
Glen.3 Pinal Act. 12.
4. Claims 2 and 12 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Sayko, Raake, Lipman, and Rodriguez.4 Pinal Act.
12.
3 The Pinal Action does not set forth a narrative of the rejection. Rather, the
Action recites, inter alia, “[additional 103 rejections (refer to previous
rejection, Pinal 12/04/14, Preinterview First Office Action (06/30/14). It is
noted the previous rejections are being modified by Lipman as detailed in
the above rejection.” Final Act. 2.
4 See Note 3, supra.
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Appeal 2016-006967
Application 14/092,406
ANALYSIS
We have reviewed the rejection of Claims 1—20 in light of Appellants’
arguments that the Examiner erred. We have considered in this decision
only those arguments Appellants actually raised in the Briefs. Any other
arguments which Appellants could have made, but chose not to make in the
Briefs are deemed to be waived. See 37 C.F.R. § 41.37(c)(l)(iv). We are
not persuaded that Appellants identify reversible error. Upon consideration
of the arguments presented in the Appeal Brief and the Reply Brief, we
agree with the Examiner that all the pending claims are unpatentable. We
adopt as our own the findings and reasons set forth in the rejection from
which this appeal is taken and in the Examiner’s Answer, to the extent
consistent with our analysis below. We provide the following explanation to
highlight and address specific arguments and findings primarily for
emphasis. We consider Appellants’ arguments seriatim, as they are
presented in the Appeal Brief, pages 7—9.
Claims 1,3-11, and 13-20: Obviousness over
Sayko, Raake, and Lipman
Appellants present no arguments pertaining to this ground of
rejection. See App. Br. 7—9. Therefore, we summarily sustain the rejection
of Claims 1, 3—11, and 13—20. See MPEP § 1205.02, 8th ed., Rev. 8, July
2010 (“If a ground of rejection stated by the examiner is not addressed in the
appellant’s brief, that ground of rejection will be summarily sustained by the
Board.”).
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Appeal 2016-006967
Application 14/092,406
Claims 1-20: Obviousness over Lipman and Rodriguez
Appellants contend that neither Lipman, nor Rodriguez, teaches
graphically indicating presentation quality information prior to initializing a
download and display of the identified video, as claimed. App. Br. 7.
The Examiner finds Lipman provides a user the option to select a
program with the option to specify whether the quality will be “Low, Ok,
Good, Excellent, etc.” Ans. 17 (citing Lipman 122). The Examiner finds
Rodriguez provides a user the option of selecting a variable-quality program,
prior to initializing its download. Id. at 18. Thus, we agree with the
Examiner that the combination of Lipman and Rodriguez teaches or suggests
the disputed limitation.
Claims 1,3-11, and 13-20: Obviousness over Sayko, Raake,
Lipman, and Rodriguez
Claims 2 and 12: Obviousness over Sayko, Raake, Lipman,
Rodriguez, and Glen
The final Action does not set forth a narrative of these grounds of
rejection. Rather, the Action recites, inter alia, “[additional 103 rejections
(refer to previous rejection, final 12/04/14, Preinterview first Office Action
(06/30/14). It is noted the previous rejections are being modified by Lipman
as detailed in the above rejection.” Pinal Act. 2. Appellants do not respond
to these grounds of rejection. See App. Br. 7.
The PTO has the burden under section 103 to establish a prima facie
case of obviousness. See In re Piasecki, 745 P.2d 1468, 1471—72 (Led. Cir.
1984); In re Rijckaert, 9 F.3d 1531, 1532 (Led. Cir. 1993). It can satisfy this
burden only by showing some objective teaching in the prior art or that
knowledge generally available to one of ordinary skill in the art would lead
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Appeal 2016-006967
Application 14/092,406
that individual to combine the relevant teachings of the references. In re
Fine, 837 F.2d 1071, 1074 (Fed. Cir. 1988). In the absence of a narrative,
the Examiner fails to demonstrate the objective teachings of the art and fails
to demonstrate the knowledge that would lead a person of ordinary skill in
the art to combine the teachings of the references. If the examiner fails to
establish a prima facie case, the rejection is improper and will be overturned.
In re Fine, 837 F.2d at 1074. In the absence of a prima facie case, we
decline to sustain these grounds of rejection.5
DECISION
Ground 1: the rejection of Claims 1, 3—11, and 13—20 under
35 U.S.C. § 103 over Sayko, Raake, and Lipman is AFFIRMED.
Ground 2: the rejection of Claims 1—20 under 35 U.S.C. § 103 over
Lipman and Rodriguez is AFFIRMED.
Ground 3: the rejection of Claims 1, 3—11, and 13—20 under
35 U.S.C. § 103 over Sayko, Raake, Lipman, Rodriguez, and Glen is
REVERSED.
5 “A brief must make all arguments accessible to the judges, rather than ask
them to play archaeologist with the record.” DeSilva v. DiLeonardi, 181
F.3d 865, 866-7 (7th Cir. June 29, 1999); Corning Incorp. v. Dan ion s DSM
IP Assets B. V, Case No. IPR2013-00043, Paper No. 95 at 12 n. 3 (PTAB
May 1, 2014) (citing the 7th Circuit’s statement that “[a] brief must make all
arguments accessible to the judges, rather than ask them to play
archaeologist with the record.”); see also Cisco Sys., Inc. v. C-Cation Techs.,
LLC, Case No. IPR2014-00454, Paper No. 12 at 10 (PTAB Aug. 29, 2014)
(informative).
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Appeal 2016-006967
Application 14/092,406
Ground 4: the rejection of Claims 2 and 12 under 35 U.S.C. § 103
over Sayko, Raake, Lipman, and Rodriguez is REVERSED.
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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