Ex Parte XIAO et al

Patent Trial and Appeal Board

Feb 12, 2018

13688882 (P.T.A.B. Feb. 12, 2018)

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.
13/688,882 11/29/2012 Hong XIAO 20120658 2959
25537 7590
VERIZON
PATENT MANAGEMENT GROUP
1320 North Court House Road
9th Floor
ARLINGTON, VA 22201-2909
EXAMINER
HOANG, HIEU T
ART UNIT PAPER NUMBER
2452
NOTIFICATION DATE DELIVERY MODE
02/14/2018 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):
patents @ verizon.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte HONG XIAO, DONGCHEN WANG, FANG ZHU,
ANDRE R. TURNER, and AZIM NASIR
Appeal 2016-001373
Application 13/688,882
Technology Center 2400
Before CAROLYN D. THOMAS, DENISE M. POTHIER, and
NABEEL U. KHAN, Administrative Patent Judges.
POTHIER, Administrative Patent Judge.
DECISION ON APPEAL
Appeal 2016-001373
Application 13/688,882
STATEMENT OF THE CASE
Appellants1 appeal under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1—5, 7—15, and 17—22. App. Br. 4.2 Claims 6 and 16
have been canceled. Id. at 16, 18 (Claims App’x). We have jurisdiction
under 35 U.S.C. § 6(b). We affirm.
Invention
Appellants’ invention relates to enabling a user to adapt content usage
by an application running on a device, including video steaming, content
streaming, and social networking applications. Spec. 12; see also id. Ill,
11, 13—14. An adaption platform (e.g., 103) interacts with such devices and
enables a user to manage and adapt content usage for prolonged use. See id.
114, Fig. 1.
Claim 1 is reproduced below with emphases:
1. A method comprising:
determining usage of content by an application satisfies a
predetermined bandwidth threshold;
determining, based on the usage, a bandwidth
configuration setting specified by a device that is configured to
execute the application;
initiating an adaptation of the usage of the content by the
application based on the bandwidth configuration setting; and
determining a context condition to associate with the
bandwidth configuration setting, wherein the context condition
1 The real party in interest is listed as Verizon Communications Inc. App.
Br. 1.
2 Throughout this opinion, we refer to (1) the Final Action (Final Act.)
mailed January 29, 2015, (2) the Advisory Action (Adv. Act.) mailed April
7, 2015, (3) the Appeal Brief (App. Br.) filed June 29, 2015, (4) the
Examiner’s Answer (Ans.) mailed September 11, 2015, and (5) the Reply
Brief (Reply Br.) filed November 11, 2015.
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Application 13/688,882
includes a number of other devices associated with a user of the
device, a device type, a location, a time range, an identifier
value associated with the device or the number of other devices,
or a combination thereof.
The Examiner relies on the following as evidence of unpatentability:
Liu US 2013/0035059 A1 Feb. 7,2013
Taking notice that one skilled in the art would have known the amount of
bandwidth available to a user’s device is based on the data usage or
bandwidth of other devices covered by a shared plan (Rados, US
2012/0054661, Tflf 40, 43, 59, cited in Final Act. 7) (“Official Notice”).
The Rejections
Claims 1, 5, 7, 9-11, 15, 17, and 19—22 are rejected under 35 U.S.C.
§ 102(e) as anticipated by Liu. Final Act. 3—6.
Claims 2—4, 8, 12—14, and 18 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Liu and Official Notice. Final Act. 6—8.
THE ANTICIPATION REJECTION OVER LIU
Regarding representative claim l,3 the Examiner finds that Liu
discloses all its limitations, including “determining ... a bandwidth
configuration setting specified by a device” based on usage and
“determining a context condition to associate with the bandwidth
configuration setting,” where the context condition includes “a time range
[or] an identifier value associated with the device.” Final Act. 3^4 (citing
3 Despite Appellants’ groupings for the pending claims, Appellants have not
presented separate arguments for claims 1, 5, 7, 9-11, 15, 17, and 19-22.
See App. Br. 4, 11. We select independent claim 1 as representative. See 37
C.F.R. § 41.37(c)(l)(iv). We also group claims separately based on the
anticipation and obviousness rejections.
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Appeal 2016-001373
Application 13/688,882
Liu 11 15, 17, 18, 23, 24, 27); Ans. 3^1 (citing LiuH 15, 17, 20, 21, 23, 24,
28,30, 31, Fig. 2).
Appellants argue Liu’s monitoring of bandwidth use over a time
period “is not related to [the] claimed ‘bandwidth configuration setting[,]’”
and that any adjustments to bandwidth or bandwidth settings do not relate to
each other. App. Br. 9. As such, Appellants contend Liu fails to teach
“determining ... a bandwidth configuration setting” based on application
usage or “initiating an adaptation of the usage of the content by the
application based on the bandwidth configuration setting” as recited in
independent claim 1. Id. at 9—10. Appellants further assert that the context
condition in Liu is set by the user “with no regard to the usage of the
application” and thus further fails to teach “determining a context condition
to associate with the bandwidth configuration setting.” Id. at 9-10.
Moreover, Appellants contend Liu’s billing cycle does not relate to the
claimed “context condition,” which includes “a time range.” Id. at 10.
ISSUES
Under § 102, has the Examiner erred in rejecting claim 1 by finding
that Liu discloses
(I) “determining, based on the usage, a bandwidth configuration
setting specified by a device” and
(II) “determining a context condition to associate with the bandwidth
configuration setting, wherein the context condition includes a number of
other devices associated with a user of the device, a device type, a location, a
time range, an identifier value associated with the device or the number of
other devices, or a combination thereof’?
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Application 13/688,882
ANALYSIS
I.
Based on the record before us, we find no error in the Examiner’s
rejection of independent claim 1. Claim 1 separately recites both “a
predetermined bandwidth threshold” and “a bandwidth configuration
setting.” App. Br. 15 (Claims App’x). We disagree that Liu fails to teach
these recited features. See id. at 10; see also Reply Br. 5.
Turning to the disclosure, the Specification provides examples of a
threshold, which may represent “a percentage of the usage of content,
including a percentage of the rate or amount of data consumed.” Spec. 119.
The disclosure further indicates “the threshold may be specified” when the
user establishes profile 107 with adaptation platform 103. Id. 119, Fig. 1.
Liu similarly discloses examples of setting a bandwidth threshold by a user,
including the bandwidth adjustment’s first settings 216’ that includes
“THROTTLE (%)” setting (e.g., from zero to 100) that limits the bandwidth
used by application 208 (e.g., 50 % for “3G(Lmt)” email application in
Figure 2). Liu H 17, 22, 27, 31, Fig. 2. Thus, Liu sets “a predetermined
bandwidth threshold” related to an application’s usage as recited. Liu
further determines a current, total bandwidth being used 220 for an
application (e.g., 500K content usage for “3G(Lmt)” email application 208)
and whether the usage meets the throttle percentage (see Liu ]Hf 20-21, 31,
Fig. 2 (discussing agent 322 enforcing policies established by settings 216
through monitoring)), thus determining that an application’s content usage
“satisfies a predetermined bandwidth threshold” as recited. See id.
Distinct from this threshold determination (e.g., 216’ in Figure 2), Liu
further discusses bandwidth configuration settings 216” shown as
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Application 13/688,882
“CUTOFF.” Liu, Fig. 2. Liu explains user interface 212 allows a user to
input a setting that an application (e.g., YouTube in Figure 2) will not
operate above or “a ‘cutoff setting” that enables or disables application 208.
Id. 122—23; see also id. ]Hf 17—18, 27, Fig. 2 and Ans. 4 (discussing cutting
off YouTube application’s use). This is similar to the Specification, which
provides an example of a “bandwidth configuration setting . . . may include
a disabling and/or enabling of a video streaming feature of an application
104” or “specific applications” (Spec. 122).
Thus, contrary to Appellants’ assertions (App. Br. 9-10; Reply Br.
2—3), Liu’s bandwidth monitoring is related to a “bandwidth configuration
setting,” and Liu discloses both the recited “predetermined bandwidth
threshold” (e.g., a throttle percentage) and the recited “bandwidth
configuration setting” (e.g., cut off point for an application based on its use).
Also, despite Appellants’ arguments {id. at 9-10), Liu teaches adapting the
content usage of an application (e.g., cutting off YouTube application) based
on the bandwidth configuration setting as previously explained.
II.
Regarding the recitation “determining a context condition to associate
with the bandwidth configuration setting” in claim 1, Appellants argue the
context condition in Liu is set by the user “with no regard to the usage of the
application.” Id. Notably, claim 1 broadly recites “determining a context
condition to associate with the bandwidth configuration setting.” Id. at 15
(Claims App’x) (emphasis added). See also Ans. 3 (stating “the ‘context
condition’ is merely “a ‘time range’ associated with the bandwidth
configuration settings”). This recitation does not recite positively
associating the context condition with an application’s usage as argued
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Application 13/688,882
(App. Br. 9) but rather requires the ability to associate the context condition
with the bandwidth configuration setting, which in turn is based on the
content’s usage. Thus, Appellants’ argument does not specifically address
claim 1 ’s recitation.
Appellants also contend Liu’s billing cycle is not “an equivalent
teaching,” does not relate to the claimed “context condition,” which includes
“a time range,” and “is not the contextual aspect that actually results in a
throttling.” Id. at 10. Claim 1 does not require the context condition to
result in throttling. At best, as noted above, the recited “context condition”
has the ability to associate with “the bandwidth configuration setting.” Id. at
15 (Claims App’x).
As mapped by the Examiner, Liu discloses such an ability. The
Examiner explains Liu discloses the “period of time . . . monitored by the
monitoring agents . . . (for example, You[T]ube app used 300MB in the last
hour),” and this time period relates to the monitoring period. Ans. 4 (citing
Liu, Tig. 2, where the cutoff box is ticked for the YouTube application); see
also final Act. 4 (citing Liu 15, 17). As an example, Liu discusses “[t]he
total bandwidth used 220 may be for a single session (i.e. [,] a given time
period).'” Liu 117 (italics added). This given time period is “a time range”
as recited. Moreover, as addressed above, based on this total bandwidth
used for an application in this given time period, Liu discloses determining a
bandwidth configuration setting (e.g., cut off point for an application that is
associated with the given time period) and adapting its usage (e.g., cutting
off the application’s (e.g., YouTube) use).
The Examiner also finds Liu discloses “a context condition” that
includes “an identifier value associated with the device.” final Act. 4
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Application 13/688,882
(discussing “a subscriber ... is known to be associated with a device/user ID
or type”) (italics omitted). Appellants do not rebut this finding in the briefs.
We thus disagree Liu fails to disclose “determining a context condition to
associate with the bandwidth configuration setting . . . [that] includes ... a
time range [or] an identifier value associated with the device” as recited in
claim 1.
For the foregoing reasons, Appellants have not persuaded us of error
in the rejection of independent claim 1 and claims 5, 7, 9-11, 15, 17, and
19-22, which are not separately argued.
THE OBVIOUSNESS REJECTION OVER LIU AND OFFICIAL NOTICE
Claims 2-4, 8, 12—14, and 18 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Liu and Official Notice. Final Act. 6—8. For the rejection
of these claims, Appellants argue the Official Notice does not remedy the
alleged deficiencies of Liu. App. Br. 12. This argument is unavailing for
the above reasons concerning Liu.
Claim 3 depends from claim 2, and claim 13 depends from claim 12.
Appellants separately group claims 3 and 13 {id. at 12—13), which both
recite, in pertinent part, “determining context information associated with
the device or the other device.” Id. at 15. We select claim 3 as
representative. Appellants assert Liu and Official Notice “are silent as to a
description of the claimed ‘context information’ as described in the
Specification.” Id.
We are not persuaded. First, the Examiner need not define the recited
“context information” as argued. App. Br. 13. That is, “[t]here has never
been a requirement for an examiner to make an on-the-record claim
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Application 13/688,882
construction of every term in every rejected claim . . . In re Jung, 637
F.3d 1356, 1363 (Fed. Cir. 2011).
Second, to the extent Appellants contend Liu does not teach or
suggest the claimed “context information,” we disagree. Although the
Specification does not define “context information,” it does describe
“context information” as being “captured by sensors 105a-105n of respective
user devices 101” (Spec. 128) and as including “location information,
orientation information, temporal information or activity information
pertaining to a user” as well as “internet protocol (IP) address information,
application usage information, and other data” {id. 129). Similarly, the
Examiner maps this limitation to Liu’s teachings, which describe capturing a
variety of information using various sensors. See Final Act. 7 (citing Liu
17—18, 23—24, 27, Fig. 2). For example, Liu suggests a sensor is used to
capture time, so that Liu can determine the bandwidth used for “a given time
period” or “a single session.” See Liu 117, Fig. 2. As another example, Liu
further discusses capturing “network data plan information” (e.g., data bytes
remaining in a data plan, current billing period’s end time, and how much
time remains until a new billing cycle), which is used to implement an
application’s operations of applications (e.g., cutting off or throttling an
application’s use). Liu 128.
For the foregoing reasons, Appellants have not persuaded us of error
in the rejection of claims 2—4, 8, 12—14, and 18.
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DECISION
We affirm the Examiner’s rejection of (1) claims 1, 5, 7, 9-11, 15, 17,
and 19-22 under 35 U.S.C. § 102 and (2) claims 2-4, 8, 12—14, and 18 under
35 U.S.C. § 103(a).
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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