Apple Inc.

Patent Trials and Appeals Board

Jun 11, 2020

2019002448 (P.T.A.B. Jun. 11, 2020)

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.
14/290,227 05/29/2014 James O. Normile 082438.029350 6318
139020 7590 06/11/2020
BakerHostetler / Apple Inc.
Washington Square, Suite 1100,
1050 Connecticut Ave, NW
WASHINGTON, DC 20036-5304
EXAMINER
BANTAMOI, ANTHONY
ART UNIT PAPER NUMBER
2423
NOTIFICATION DATE DELIVERY MODE
06/11/2020 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):
eofficemonitor@bakerlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JAMES O. NORMILE, HSI-JUNG WU, XIAOSONG ZHOU,
CHRIS Y. CHUNG, KE ZHANG, and YEPING SU
Appeal 2019-002448
Application 14/290,227
Technology Center 2400

Before JEAN R. HOMERE, MICHAEL J. STRAUSS, and
DAVID J. CUTITTA II, Administrative Patent Judges.

CUTITTA, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–13, 15–19, 34, and 38–44, all of the
pending claims.2 We have jurisdiction under 35 U.S.C. § 6(b). A hearing
was scheduled but Appellant waived oral arguments on April 2, 2020.
We AFFIRM.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a). Appellant identifies the real party in interest as Apple Inc.
Appeal Br. 2.
2 Claims 14, 20–33, and 35–37 are canceled. Appeal Br. 26, 27.
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CLAIMED SUBJECT MATTER
Appellant’s claimed subject matter relates to “distribut[ing] video
content among a plurality of associated devices by identifying segments
associated with the video content.” Spec. ¶ 9.3 Appellant explains that
“[f]or each identified segment, if it is determined that the segment is stored
by one of the associated devices, other associated devices requesting the
segment may retrieve the segment from the device storing the segment.
Otherwise, the segment may be delivered directly to the device requesting
the video content.” Id.
Claims 1, 6, and 34 are independent. Claim 1, reproduced below with
limitations at issue italicized, exemplifies the claimed subject matter:
1. A video player, comprising:
a communication transceiver;
a subscription log that includes identifiers of video
content associated with a user of the video player and a media
server from which the video content is available;
a neighbor log that stores an index of segments of video
content stored by other player devices that are assigned to a
same user account as the video player, wherein the neighbor
log is updated over time to reflect storage of segments by the
other player devices; and
a processor that, responsive to a request to play selected
video content, searches the neighbor log at the time of the
request for identification of another player device that, prior to

3 Throughout this Decision we refer to: (1) Appellant’s Specification filed
May 29, 2014 (“Spec.”); (2) the Final Office Action mailed April 20, 2018
(“Final Act.”); (3) the Appeal Brief filed September 20, 2018 (“Appeal
Br.”); (4) the Examiner’s Answer mailed December 14, 2018 (“Ans.”); and
(5) the Reply Brief filed February 1, 2019 (“Reply Br.”).
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the request, stores a segment associated with the selected video
content,
when a matching player device is found, causes the
transceiver to transmit a request to the matching player device
for video segments identified on the neighbor log, and
for segments for which no matching player device is
found, causes the transceiver to transmit a request to the media
server for such segments.
Appeal Br. 24 (Claims Appendix).
REFERENCES AND REJECTIONS
The Examiner rejects claims 1, 3, 4, 6–8, 13, 15, 16, 18, 19, 34, and
38–44 under 35 U.S.C. § 103 as unpatentable over the combined teachings
of Gaude (US 2013/0111513 A1, published May 2, 2013) and Alsina et al.
(US 2014/0074783 A1, published Mar. 13, 2014) (“Alsina”). Final Act. 3–
11.
The Examiner rejects claims 2, 9, 10, and 38 under 35 U.S.C. § 103 as
unpatentable over the combined teachings of Gaude, Alsina, and Altberg et
al. (US 2009/0010408 A1, published Jan. 8, 2009) (“Altberg”). Final
Act. 11–13.
The Examiner rejects claim 5 under 35 U.S.C. § 103 as unpatentable
over the combined teachings of Gaude, Alsina, and Roberts et al. (US
2012/0304233 A1, published Nov. 29, 2012) (“Roberts”). Final Act. 13–14.
The Examiner rejects claims 11 and 12 under 35 U.S.C. § 103 as
unpatentable over the combined teachings of Gaude, Alsina, and Akkurt et
al. (US 2014/0172971 A1, published June 19, 2014) (“Akkurt”). Final
Act. 14–15.
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The Examiner rejects claim 17 under 35 U.S.C. § 103 as unpatentable
over the combined teachings of Gaude, Alsina, Altberg, and Akkurt. Final
Act. 15–17.

OPINION
We review the appealed rejections for error based upon the issues
identified by Appellant and in light of Appellant’s arguments and evidence.
Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential).
Arguments not made are waived. See 37 C.F.R. § 41.37(c)(1)(iv) (2017).
We disagree with Appellant that the Examiner erred and adopt as our own
the findings and reasons set forth by the Examiner. We add the following
primarily for emphasis.
Obviousness Rejection of Claim 1
The Examiner relies on the combination of Gaude and Alsina to teach
or suggest “a neighbor log that stores an index of segments of video content
stored by other player devices that are assigned to a same user account as the
video player,” as recited in claim 1. Final Act. 3–4. Of particular relevance,
the Examiner finds that Gaude teaches or suggests “a neighbor log that
stores an index of segments of video content stored by other player devices”
and that Alsina teaches or suggests “player devices that are assigned to a
same user account as the video player.” Id. The Examiner determines that
sufficient motivation existed to combine the teachings of the references. Id.
Appellant argues that Gaude’s “peer devices 130 are not ‘assigned to
a same user account as the video player’ that receives ‘a request to play
selected video content.’” Appeal Br. 14.
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The Examiner responds that it is “Alsina [that] discloses a local list
that is stored on user devices belonging to a same user account.” Ans. 4
(emphasis omitted) (citing Alsina ¶¶ 35, 36, 38–41, Fig. 2). Accordingly,
Appellant’s argument based on Gaude is unpersuasive because the Examiner
relies on Alsina to teach devices that are assigned to a same user account and
therefore the argument is not responsive to the rejection. See Nat’l Steel
Car, Ltd. v. Canadian Pac. Ry., Ltd., 357 F.3d 1319, 1336–37 (Fed. Cir.
2004) (rejecting argument directed at the wrong reference).
Next, Appellant argues that in Alsina, “[n]one of the devices store a
‘neighbor log’ indicating which other devices associated with the user
account have which purchased items stored.” Appeal Br. 14.
This argument is not responsive to the rejection because the Examiner
relies on the combined teachings of Gaude and Alsina, rather than Alsina
alone, to teach or suggests a neighbor log as recited in claim 1. Final Act. 3–
4.
Third, Appellant argues that the Examiner has not articulated a
sufficient motivation to combine the teachings of Gaude and Alsina.
Specifically, Appellant argues that
Alsina’s teaching of metatdata exchanges to identify media items
that a user has purchased from individual devices would not
cause a skilled worker to create neighbor logs in Gaude’s system
that “store an index of segments of video content stored by other
player devices that are assigned to a same user account.”
Gaude’s system simply is architected differently.
Appeal Br. 15.
This argument is unpersuasive because the Examiner articulated a
reason to combine the teachings of Gaude and Alsina that is rational on its
face and supported by evidence drawn from the record (Final Act. 4 (citing
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Alsina ¶ 6); Ans. 10–11) and Appellant’s argument does not address the
reason identified by the Examiner.
In summary, Appellant’s first three arguments are not responsive to
the rejection because Appellant fails to persuasively address the Examiner’s
findings that (1) Gaude teaches “a neighbor log that stores an index of
segments of video content stored by other player devices,” (2) Alsina
teaches “player devices that are assigned to a same user account as the video
player,” and the Examiner’s conclusion (3) that it would have been obvious
to one of skill in the art to modify the neighbor log of Gaude to include
“player devices that are assigned to a same user account as the video player
as taught by Alsina in order to in order to efficiently keep track of all user
purchased items.” Final Act. 3, 4.
Claim 1 further recites “a processor that, responsive to a request to
play selected video content, searches the neighbor log at the time of the
request for identification of another player device.” Appeal Br. 24.
Appellant argues Gaude “does not describe a device that ‘searches [a]
neighbor log at the time of request’ to play selected video content” because
“Gaude’s player device (the content requesting node 102 of FIG. 1), must
first receive a content request, then send its own content request to the media
tracker to obtain requested media data.”
In response, the Examiner finds that
the list which locates and identifies chunks is (looked through)
or searched by the requesting node that receives it from the media
tracker so as to be able to retrieve what is needed. The list is
received upon request for a content from the media tracker, so it
is received, at the time of request for the content (Para. 80 (In
stage 10, the content requesting node receives the list of a
plurality of peers having recorded chunks of the media content
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item from the media tracker, including their locations and
identifiers of the chunks)).
Ans. 7 (emphasis added).
Appellant’s argument is not commensurate with the scope of claim 1.
Although the claim recites that the processor searches the neighbor log
responsive to a request to play selected video content, the claim does not
require that the processor must receive the request to play the video content,
e.g., from a user. That is, Appellant fails to show error in the Examiner’s
interpretation of the claim as encompassing submitting of the content request
by the processor, such as by Gaude’s content requesting node 102
submitting a content request to media tracker 118. In addition, we agree
with the Examiner’s finding that Gaude’s content requesting node 102
submits a request for a media content item to the media tracker and the
content requesting node receives and searches the [neighbor] list at the time
of the request, and that these steps teach or suggest the disputed limitation in
view of the Examiner’s broad but reasonable interpretation of the claim.
Ans. 7; see Gaude ¶¶ 78, 80.
Appellant further argues “the cited art does not describe finding
devices storing media segments from two different data sources, the
‘neighbor log’ and a ‘subscription log.’” Appeal Br. 15. Appellant
continues that “the Examiner agrees that Gaude does not describe a
subscription log” and “Alsina does not describe a neighbor log.” Id.
Appellant’s arguments do not address the actual reasoning of the
Examiner’s rejection. Instead Appellant attacks the references singly for
lacking teachings that the Examiner relied on a combination of references to
show. It is well established that one cannot show non-obviousness by
attacking references individually where the rejections are based on
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combinations of references. In re Merck & Co., 800 F.2d 1091, 1097 (Fed.
Cir. 1986). Appellant’s arguments that “‘Alsina does not describe a
neighbor log’” and that “‘Gaude does not describe a subscription log’” fail
to address the Examiner’s finding that the combined teachings of Gaude and
Alsina teach the logs as claimed. Final Act. 3–4.
For the reasons discussed, Appellant has not persuaded us of error in
the Examiner’s obviousness rejection of independent claim 1. Accordingly,
we sustain the Examiner’s rejection of that claim, as well as the rejection of
independent claims 6 and 34, and dependent claims 2–5, 7, 9–13, 15–19, and
38–44, which Appellant does not argue separately with particularity. Appeal
Br. 18–22.
Obviousness Rejection of Claim 8
Dependent claim 8 recites, in part, “wherein the identifying comprises
searching a manifest file downloaded from the media server to the first
device that identifies neighboring client device(s) that store segments of the
selected content.” Appeal Br. 25.
The Examiner finds Gaude in view of Alsina teaches or suggests this
limitation because in Gaude, a “requesting interface has a search engine for
browsing for contents stored on the peer to peer network-list 142 is the
neighbor log.” Final Act. 7 (citing Gaude ¶¶ 62–63).
Appellant argues that Gaude’s
requesting interface is a component of the content requesting
node, and the search engine merely displays available content to
a user using the content requesting node. Gaude, ¶ 62. The
search engine does not “identify neighboring client device(s) that
store segments of the selected content,” as recited in claim 8.
Instead, a user makes a request for content using the search
engine, and then “[o]nce a request for a particular content unit
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has been made, media tracker 118 then . . . determine[s] the
location of the content at a media peer 130.” Gaude, ¶ 63. Unlike
the claimed manifest file, the search engine does not both
identify available content and devices where that content is
stored.
Appeal Br. 21.
The Examiner responds that “the Gaude list that identifies chunks and
where they are located on the peers distribution network (Para. 63, 77, 81–
83, 112, 130) satisfies a manifest file” as claimed. Ans. 20 (emphasis
omitted).
Appellant’s argument that Gaude’s content requesting interface 110
“does not ‘identify neighboring client device(s) that store segments of the
selected content,’ as recited in claim 8” (Appeal Br. 21), is not responsive to
the Examiner’s finding that Gaude’s peer-to-peer network list 142 “identifies
[content] chunks and where they are located on the peers distribution
network.” Ans. 20. In addition, Appellant fails to address all of the
Examiner’s findings from Gaude. See, e.g., Gaude ¶ 77 (“the location of
each chunk of the media content item is determined at each peer by the
media tracker, optionally to prepare the above described list” 142); see also
Gaude ¶¶ 81–83, 112, 130. Accordingly, we sustain the Examiner’s
rejection of claim 8.

CONCLUSION
We affirm the Examiner’s decision to reject claims 1–13, 15–19, 34,
and 38–44 under 35 U.S.C. § 103.

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DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 3, 4, 6–
8, 13, 15,
16, 18, 19,
34, 38–44
103 Guade, Alsina 1, 3, 4, 6–8,
13, 15, 16,
18, 19, 34,
38–44

2, 9, 10, 38 103 Gaude, Alsina,
Altberg
2, 9, 10, 38
5 103 Gaude, Alsina,
Roberts
5
11, 12 103 Gaude, Alsina,
Akkurt
11, 12
17 103 Gaude, Alsina,
Altberg, Akkurt
17
Overall
Outcome
1–13, 15–
19, 34, 38–
44

TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED