Ex Parte 6115074 et al

Board of Patent Appeals and Interferences

Oct 29, 2010

90010075 (B.P.A.I. Oct. 29, 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.
90/010,075 12/27/2007 6115074 230.1-US-RX 1819
20872 7590 10/29/2010
MORRISON & FOERSTER LLP
425 MARKET STREET
SAN FRANCISCO, CA 94105-2482
EXAMINER
FERRIS III, FRED O
ART UNIT PAPER NUMBER
3992
MAIL DATE DELIVERY MODE
10/29/2010 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
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.
90/008,828 08/31/2007 6115074 4671-4672-001 2830
20872 7590 10/29/2010
MORRISON & FOERSTER LLP
425 MARKET STREET
SAN FRANCISCO, CA 94105-2482
EXAMINER
FERRIS III, FRED O
ART UNIT PAPER NUMBER
3992
MAIL DATE DELIVERY MODE
10/29/2010 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 FUNAI ELECTRIC CO., LTD.
____________

Appeal 2010-007834
Reexamination Control 90/010,075 & 90/008,828
United States Patent 6,115,074
Technology Center 3900
____________

Before SALLY C. MEDLEY, KARL D. EASTHOM, and KEVIN F.
TURNER, Administrative Patent Judges.

EASTHOM, Administrative Patent Judge.

DECISION ON APPEAL1

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
shown on the PTOL-90A cover letter attached to this decision.

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Reexamination Control 90/010,075 & 90/008,828
Patent 6,115,074

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Patent owner (Appellant) appeals under 35 U.S.C. §§ 134(b) and 306
from a final rejection of claims 1-24.2 Claims 25-44 have been confirmed.
(See App. Br. 4.) We have jurisdiction under 35 U.S.C. §§ 134(b) and 306.
We affirm.

STATEMENT OF THE CASE
This proceeding arose from two separate third party requests for ex
parte reexamination of U.S. 6,115,074. The Office granted and merged the
two proceedings (i.e., Reexamination Control 90/010,075 & 90/008,828).
Appellant’s Brief describes five related litigations and investigations
involving the ‘074 patent. Three separate litigation actions in the Central
District Court of California were stayed pending the resolution of a separate
investigation by The International Trade Commission which also instituted
an enforcement proceeding. Pursuant to the investigation, an Administrative
Law Judge at the ITC conducted a hearing and rendered an Initial
Determination finding that claims 1, 5, and 23 of the ‘074 patent were
infringed, and not invalid based on a combination of U.S. Patent 5,982,411
to Eyer and the ATSC (Advanced Television Systems Committee) A/55, and
A/56 standards.3 The Commission declined to review the ALJ’s findings,
except some aspects with respect to the infringement of claim 23, on

2 Patent owner, Appellant, Funai Electric Co. Ltd., is the real party in
interest for this appeal and assignee of record of U.S. Patent 6,115,074
“System for Forming and Processing Program Map Information Suitable For
Terrestrial, Cable or Satellite Broadcast” (issued Sept. 5, 2000 with listed
inventors Mehmet Kemal Ozkan, Chia-Yuan Teng, and Edwin Arturo
Heredia).
3 This combination is also involved here with the prior art reference and
standards more particularly identified below.
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February 11, 2009. Respondents in the ITC investigation have appealed to
the Federal Circuit Court of Appeals. Appellant states that the ‘074 patent
and EPO Patent Application No. 98931718 claim priority to the same U.S.
patent application that issued as the ‘074 patent. On January 29, 2001, the
EPO Board of Appeals affirmed the rejection of the ‘718 application. (See
App. Br. 2-3.)
An oral hearing before the USPTO panel listed above involving the
‘074 patent and another patent assigned to the same assignee, US 5,329,369
(Appeal 2010-003274), was conducted at the USPTO on August 18, 2010.
The ‘074 Patent4
The ‘074 patent describes a channel stream decoder for identifying
channel map information encoded in an MPEG (Moving Pictures Expert
Group) packetized data stream. The map information includes four separate
items of information replicating the same four items of information
transmitted in another portion of, or maps within, a normal MPEG data
stream. The replicated map information associates a broadcast channel with
packet identifiers used to identify packetized data streams that constitute a
program transmitted on said broadcast channel. (See Col. 2, ll. 6-16; Fig. 4.)
The Exemplary Claim, References, and Rejection
Exemplary claim 1 on appeal reads as follows:
Claim 1: Apparatus for decoding a datastream of MPEG compatible
packetized program information containing program map information to
provide decoded program data, comprising:

4 The ensuing description constitutes findings of fact referenced herein as
“D1”.
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means for identifying channel map information conveyed within said
packetized program information; and

means for assembling said identified information to form a channel
map for identifying said individual packetized datastreams
constituting said program, wherein

said channel map information replicates information conveyed in said
MPEG compatible program map information and said
replicated information associates a broadcast channel with
packet identifiers used to identify individual packetized
datastreams that constitute a program transmitted on said
broadcast channel.

(App. Br. Claims App’x.)

The Examiner listed and employed the following prior art references:
Eyer US 5,982,411 Nov. 9, 1999
Advanced Television Systems Committee, Program Guide for Digital
Television, ATSC Standard, Document A/55 (Jan. 3, 1996) [hereinafter the
A/55 standard].

Advanced Television Systems Committee, System Information for Digital
Television, ATSC Standard, Document A/56 (Jan. 3, 1996) [hereinafter the
A/56 standard].

International Organisation for Standardisation, Information Technology –
Generic Coding of Moving Pictures and Associated Audio: Systems,
Recommendation H.222.0, ISO/IEC 13818-1 (Nov. 13, 1994) [hereinafter
the MPEG standard].
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Claims 1-24 are rejected under 35 U.S.C. § 103 (a) as being
unpatentable based on the combination of Eyer, the A/55 standard, the A/56
standard, and the MPEG standard.5, 6
Issue
Appellant’s arguments and the Examiner’s responses primarily
present the issue of whether the Examiner erred in finding and determining
that it would have been obvious, based on a combination of Eyer, the A/55,
the A/56, and the MPEG standards, to transfer a program map replicating
map information already replicated in MPEG streams? Appellant’s
arguments present further additional issues as addressed below.
Eyer
E 1. Eyer discloses a virtual channel map which allows a viewer to
easily navigate channels grouped according to a common service provider.
(Col. 12, ll. 1-6.) “Table 2 . . . is a virtual table map since it relates a virtual
channel designator such as a channel number with a particular programming
service provider’s signal.” (Col. 10, ll. 54-56.) The system allows a viewer
to “immediately switch from channel 10 in the 192-198 MHz band to
channel ABC-1 in the 506-512 MHz band.” (Col. 9, ll. 47-49.) Eyer teaches

5 The Examiner lists and relies on the A/56 and MPEG standards in the
statement of rejection though not in the rejection heading. (See e.g., Ans. 3-
5, 12, 13.) Additionally, the A/56 standard is incorporated into and used in
the system of Eyer (col. 10, ll. 59-63), while the MPEG standard is
prominently referenced in opening remarks of the A/55 and A/56 standards
(A/55 § 1; A/56 § 1.1 (citing the use of bit or transport streams constructed
according to ISO/IEC 13818-1)).
6 The Examiner withdrew a rejection of claims 1-5, 11-19, 23, and 24 under
35 U.S.C. § 102(e) based on Eyer “in the interest of simplifying issues
before the Board of Appeals.” (Ans. 3.)
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that a channel group can be maintained even if a particular affiliate changes
its number because a channel number designation in Eyer’s system is
“virtual” and does not necessarily correspond to an FCC designation. (Col.
10, ll. 8-15.)
E 2. Eyer’s method employs a syntax for a virtual channel record as
defined in a table map. (Col. 10, ll. 52-58.) “The syntax is compatible with
standards of the Advanced Television Systems Committee (ATSC)
described in ‘System Information for Digital Television – ATSC Standard,’
Document A/56, Jan. 3, 1996, Advanced Television Systems Committee.”
(Col. 10, ll. 59-63.)
The MPEG Standard
MP 1. A transport stream consists of one or more programs.
Transport streams begin with a 4 byte prefix, which contains a 13 bit Packet
ID (PID). The PID identifies, via Program Specific Information (PSI) tables
also carried in the transport stream, the contents of the data contained in the
transport stream packet. The transport stream carries the following four PSI
tables: Program Association Table (PAT), Program Map Table (PMT),
Conditional Access Table, and Network Information Table. The tables
contain the necessary and sufficient information to demultiplex and present
programs. (The Conditional Access Table is present if scrambling is
employed and the Network Information Table is optional.) (§ 2.4.1.)
MP 2. The PMT specifies, inter alia, “which PIDs, and therefore
which elementary streams are associated to form each program. This table
also indicates the PID of the Transport Stream packets which carry the PCR
for each program.” Id. The program elements of a particular program
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typically share a common PCR (program clock reference) and program
number. The PCR PID designates the location of the PCR. (Annex C.5,
C.6.)
“The Program Map Table [(PMT)] provides the mapping between a
program number and the program elements that comprise it.” (Annex
C.8.2.)
MP 3. “ITU-T Rec. H.222.0│ISO/IEC 13818-1 requires a minimum
of program information: program number, PCR PID, stream types and
program elements PIDs.” (Id.)
MP 4. The PSI tables are repeatedly transmitted at various
frequencies. “This frequency will be a key determinant of the component of
signal acquisition time due to PSI structures.” (Annex C.9 at p. 104.)
“Higher transmission rates (than 25Hz) for the PSI data may be used to
decrease the impact on channel acquisition time with only modest bitrate
demand increases.” (Annex C.9 at p. 105.) Coordinating PAT and PMT
packets can reduce acquisition time. (Id. at 104-105.)
“Any implementation of [the standard] must make reasonable
bandwidth demands for PSI information and, in applications where random
access is a consideration, should promote fast signal acquisition.” (Annex
C.9 at p. 103.)
MP 5. “The packet-based nature of the Transport Stream allows for
the interspersing of PSI information . . . . [which] provides significant
flexibility in the construction and transmission of PSI.” (Id.)

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The A/55 Standard
A/55 1. The A/55 standard describes a “Program Guide for Digital
Television ATSC Standard.” (Title.) The standard “specifies a compact,
easily acquired, and easily updated program guide data base” in “a
standardized format for transmitting data about current and future programs .
. . . This data can be acquired and processed by suitably equipped receivers
to provide the user with an interactive program guide.” (§ 1.)
“This Program Guide consists of all the data necessary to tune
channels and display available program information. The Program Guide
data is conveyed using the . . . [MPEG standard] system level transport.” (§
4.) The Program Guide consists of a Master Program Guide (MPG) and
several other guides. (Id.) The MPG “is defined in four major tables:
Master Guide Table (MGT), Additional Guide Data Table (AGDT), Channel
Information Table (CIT); and Event Information Table (EIT).” (§ 5.)
For a closed network, “a common master program guide is provided on all
physical transmission channels, and it contains the program guide map that
directs the receivers to the physical transmission channels and packet
identifiers (PIDs) that carry additional program guide information.” (§ 1.)
A/55 2. “The MPG CIT shall contain the information needed to
determine the video, audio, and data PIDs, physical transmission channel
number, and channel information of all available channels within the time
span of the MPG.” (§5.3 at p. 18.)
A/55 3. The Program Guides “make data acquisition . . . easy [by
employing] the concept of Channel Groupings.” (§5.1 at p. 6.) The
different MPG tables employ this channel grouping by mapping such groups
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to the CIT. (§5.3, Fig. 6.) In general, “[t]he data structures and
transmission requirements of the Program Guide . . . are specified to
optimize both the transmission bandwidth requirements, as well as the
complexity of implementation at the receiver.” (§4 at p. 3.)
Analysis
Claims 1, 3, 4, 10, 11, 13, 14, 16, 18, 22-24
Appellant argues that “claim 1 is exemplary of the limitations of
independent claims 11, 13, 14, 16, 23, and 24.” (App. Br. 53.) Appellant
also argues that claims 3, 4, 10, 18, and 22 are allowable based on their
dependency on one of the aforementioned independent claims. (App. Br.
63.) Accordingly, claim 1 is selected to represent claims 1, 3, 4, 10, 11, 13,
14, 16, 18, and 22-24.
After initial disagreement over the scope of the independent claims,
the Examiner now agrees with Appellant and Appellant’s expert, Dr. Bove,
such that “in order to ‘constitute a program’ from an MPEG-2 [i.e.,
according to the MPEG standard] data stream as claimed, a minimally
required amount of information consisting of at least [1)] MPEG program
number, [2)] PCR PID, [3)] elementary PIDs and [4)] stream type
information is required in order to identify individual packetized datastreams
that form a program transmitted on a broadcast channel.” (Ans. 41 (citing
Bove Decl. at ¶¶ 48-53).)7 In other words, claim 1 requires at least the four
items of information listed.

7 Declaration of Dr. V. Michael Bove under 37 C.F.R. §1.132 in Support of
Response to Final Office Action (filed May 11, 2009) (attached as Exhibit
G, App. Br. App’x).
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In making this determination, the Examiner found that the MPEG
standard defines the same four types of necessary and sufficient information
as required by claim 1 to identify a program – i.e., the program number,
PCR PID, elementary PIDs, and stream type. (Ans. 41; accord MP 3.) The
Examiner noted that the “Patent owner has not argued that the requirements
of the claimed channel map information goes beyond anything other than the
standard formats required by [the MPEG standard].” (Ans. 47.) The
Examiner further noted that Dr. Bove’s declaration and Appellant’s
arguments make it clear that skilled artisans understood at the time of the
invention, that according to the then-current MPEG scheme, the four listed
types of information were necessary to acquire a program. (Ans. 51 (citing
App. Br. at 31, and Bove Decl. at ¶ 35 and generally at ¶¶ 31-40).)
Appellant defines the Examiner’s position as follows:
· Eyer teaches replication of some information from the
MPEG PMT, i.e., program number, in a different table.
· A/55 also teaches replication of some information from
the MPEG PMT, i.e., elementary PIDs and data stream type, in
a different table.
· The MPEG standard, as interpreted by the skilled
artisan, requires four items of information to acquire a program.
From these, the Examiner concludes that it would have
been obvious to make the technological leap to replicating all
four items of necessary program map information in redundant
channel map information, which would produce the benefit of
avoiding the latency due to obtaining that information from the
MPEG PMT.
(Reply. Br. 19.)
In response to the Examiner’s position as just outlined, Appellant
argues that the Examiner fails to provide evidence that a skilled artisan
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recognized “the advantage of replicating all the minimally required program
map information in a channel map or even the resulting benefit of obviating
the need to reference the MPEG PMT to acquire a program.” Id.
On one hand, Appellant argues that the idea of replicating redundant
program map information went against conventional wisdom and was
counterintuitive, and as such, the Examiner’s finding that skilled artisans
would have recognized a reduction in latency by transmitting redundant
tables is not supported. (Reply Br. 20-21, 25.) On the other hand,
Appellant acknowledges that “the only information that Eyer suggests to
replicate is the program number.” (Reply Br. 20 (relying on Bove Decl. at
¶82).) Appellant further explains that “[t]he ‘redundant table’ suggested in
each of A/55 and the Eyer reference would not have reduced latency, since
neither cited table included all of the necessary information from the MPEG
PMT to ‘constitute a program,’ as recited in the claims of the ‘074 patent.”
(Reply Br. 18.)
The Examiner explains that “[a]t the heart of the claimed invention . .
. is the inclusion of ‘replicated information’ from the MPEG Program Map
Table within channel map information.” The Examiner found that “it was
already well known in the art of digital television broadcasts to replicate
information from the MPEG Program Map Table in a different table also
carried within the MPEG transport stream.” (Ans. 6.)
For example, the Examiner found that “[t]he A/55 standard defines a
Channel Information Table (CIT) that ‘contain[s] the information needed to
determine the video, audio, and data PIDs, physical transmission number,
and channel information of all available channels.” (Ans. 7; accord A/55 2.)
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The Examiner reasoned in part that “‘[m]otivation to combine the A/55
standard and the Eyer patent is reflected in the Eyer patent itself.’” (Ans. 56
(quoting the Request for Ex Parte Reexaminaton at 43 (Reexam. Cont.
90/010075).) The Examiner explains that Eyer points to a similar standard,
the A/56 standard, for a more complete understanding of possible virtual
channel tables. The Examiner also explains that the A/55 and A/56
standards define the requirements for digital television and that both define
channel information tables. (Ans. 4, 5, 56; accord supra note 5; A/55 1.)
The Examiner also points to the A/55 standard as describing optimization for
faster program acquisition and using a CIT. (Ans. 9 (citing inter alia A/55
§5.3).)
The Examiner further explains that the known minimally required
information transmitted in the MPEG program stream and necessary for
decoding is “transmitted repeatedly to avoid latencies at the receiver” and
that it was therefore “known that the receiver would switch faster between
programs if certain data was present at the receiver.” (Ans. 48, citing MPEG
standard at § .1-.4, 2.4.4.8.)8 The Examiner then set forth a conclusion of
obviousness, which Appellant quotes and responds to as follows:

8 Despite the Examiner’s citation to these particular MPEG standard
sections, certain portions of the Examiner’s rationale appear to be derived
partly from rationale found in the Decision of the Technical Board of
Appeals 7 ¶ 4, Case No. T 1050/02-3.51 (European Patent Office March 8,
2006) (Exhibit U, App. Br. App’x) (reasoning in part that the MPEG
standard requires that “important data . . . are transmitted repeatedly to avoid
latencies at the receiver” and holding that supplying redundant data with
bandwidth as a trade-off is not inventive). It would seem that this repeated
transmission of the same data (i.e., apparent repeated transmission of the
same MPEG PMT) would satisfy the disputed claim elements. However,
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The Examiner refers to MPEG at .1-.4, 2.4.4.8 to find it
obvious that “providing the same information in a redundant
table (as suggested by A/55 and Eyer), would avoid further
latencies at the receiver and provide faster switching between
programs by simply accepting some loss of bandwidth.” Based
upon a reading of those sections, however, Patent Owner sees
no support for this proposition.
(Reply Br. 18 (quoting Ans. 48).)
While Appellant appears to be correct in that the MPEG standard
sections cited by the Examiner do not appear to provide sole support for the
factual premises concerning latency (slow acquisition) upon which the
Examiner relies, in addition to Eyer and the A/55 standard as discussed
further below, other sections of the MPEG standard do support the
Examiner. (See MP 4 (showing repeated transmissions (i.e., at higher
frequencies) to reduce latency (time of acquisition), “promot[ing] fast signal
acquisition,” and also showing bandwidth/acquisition (which includes bit-
rate) trade-offs).) And of course, a minimum of four data types must be
present to allow program acquisition as the Examiner found. (MP 1- MP 3.)
This support and similar findings by another tribunal (see supra note 8)
suggests that the Examiner’s citations amount to a typographical error or
similar harmless oversight.9

Appellant argues that the claimed invention creates a replicated map from
the PMT and thus cannot be the PMT (App. Br. 34). As noted supra, the
Examiner agreed with Appellant’s claim construction after protracted
disagreement.
9 The Examiner further explains that the first and second office actions relied
in part on the MPEG standards by incorporation of the third party request for
reexamination. (See Ans. 56 (discussing motivation including “look[ing] to
the most prominent standards (e.g. MPEG-2).”) The Examiner appears to
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Moreover, apart from at most a general denial and an assertion related
to (what appears to be) a faulty cite, Appellant does not challenge
persuasively the Examiner’s underlying factual premise that skilled artisans
knew that, in general, redundant tables reduce latency. Rather, Appellant
appears to focus on the Examiner’s conclusion that it would have been
obvious to employ a table having all the minimally required information to
reduce latency in a program map. (See Reply Br. 21-22.) For example, as
noted supra, Appellant explains that the cited sections of the MPEG
standard do not support the conceptual leap to using redundant tables and
even if they did, latencies would not have been reduced since the cited tables
(in A/55 and Eyer) lack all the requisite information. (Reply Br. 18.) This
last explanation amounts to an unpersuasive attack on the references
individually.
As the Examiner explains, the evidence shows that skilled artisans
were aware of redundant tables as shown in Eyer, the A/55 standard, and the
A/56 standard. In Eyer, the replication of the program number allows a user
to “immediately switch” from one desired channel to another. (E 1.) Eyer’s
redundant channel table implements the A/56 standard. (E.2; supra note 5.)

have relied more heavily on suggestions from the MPEG standards after
considering Dr. Bove’s declaration and other evidence (i.e., the EPO
decision, etc.) (See e.g. Ans. 40-42, 56-57.) In any event, Appellant does
not object to the Examiner’s reliance on the MPEG standard and employs
the standard to support Appellant’s claim interpretation as discussed above
(see also, e.g., Bove Decl. ¶¶ 26, 35), thereby waiving any arguments
against such reliance. It is further noted that Dr. Bove’s declaration does not
address the Examiner’s reliance on the MPEG standard as providing part of
the suggestion or motivation for including the required information in
redundant tables. (See Bove Decl. ¶¶ 95-100.)
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The A/55 standard provides a redundant table which provides a viewer with
an interactive electronic program guide (while optimizing transmission
bandwidth and receiver complexity). (A/55 1.) The tables transfer the “data
necessary to tune channels and display available program information”
(A/55 1) and “make data acquisition . . . easy” (A/55 3). Such easy
acquisition and tuning by the transfer of necessary redundant map data for
interaction at least suggests reduced latency in these redundant maps,
because, for example, delayed interaction implies latency. Optimization of
bandwidth suggests a tradeoff. (Accord MP 4.)
In any event, these known redundant tables suggest some benefit in
their use. One apparent reason for the tables as identified by the Examiner is
to reduce latency (i.e., provide a faster response). Certain minimal
information is required at the receiver to process a desired command, e.g., a
command for a grouped channel according to Eyer and the A/56 standard, a
command for an electronic program guide according to the A/55 standard,
and a command for a program according to the MPEG standard. The record
also shows that this information can be obtained from replicated tables (or
maps) in the MPEG stream, such as the MPEG PMT. Replicating
information from MPEG tables which are themselves replicated as repeated
transmissions, constitutes a mere rearrangement or reduction of data in the
replicated table. Moreover, replicating only the minimal amount of data
required to process a desired command (i.e., for particular programs), while
not required by claim 1 (because claim 1 does not preclude extra data in
addition to the minimally required program data), would have been a matter
of common sense to skilled artisans because such a command requires no
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other data to process that command – i.e., any extra data amounts to
unneeded information as it relates to such a specific command.
In addition and under an alternative claim interpretation and rationale,
not transmitting the normal MPEG stream after forming the replicated map
does not increase the bandwidth contrary to Appellant’s arguments alleging
teaching away (see Reply Br. 23-24 and further discussion below).
Apparatus claim 1 reads on such a mere means for forming a program map
(i.e., perhaps for later transmission thereof).
On balance, the known benefit for using known tables, even if not
explicit, appears to have been fast acquisition, because otherwise, the
receiver would have to wait for the required information as it is transported
in the standard tables of the MPEG stream. Eyer’s teaching of the ability to
immediately switch channels at least suggests this benefit while the A/55
standard and the MPEG standard suggest faster acquisition as a trade-off of
bandwidth.
It is not disputed that the minimal amount of information required to
obtain a program was also known. According to Appellant, this minimal
information includes one additional piece of information not found in the
combination of Eyer and the A/55 standard, i.e., the PCR PID (timing
information). (See Reply Br. 16.) As discussed supra, the Examiner found
and Appellant’s expert agrees (see Bove Decl. ¶¶ 95-97) that the MPEG
standard makes it clear that the PCR PID information is one of the four
items of information needed to acquire a program. (Ans. 40-41.) Since
tables were known for providing information redundant to that transmitted in
the MPEG PMT, and based on the foregoing discussion, it would have been
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obvious to put whatever desired information is required into a similar table
in order to obtain the desired result quickly, in this case a particular program.
Appellant also asserts teaching away, lack of reasonable expectation
of success (Reply Br. 22-23), and as indicated supra, “that the inventors’
idea to replicate redundant program map information in channel map
information went against conventional wisdom.” (Reply Br. 25.) Appellant
points to Dr. Bove’s declaration and the prosecution history to support these
related assertions. (Id.) However, the assertions and evidence pointed to by
Appellant are not persuasive and do not outweigh the teachings of the prior
art for the reasons discussed above and further below; i.e., Eyer, the A/55
standard, the A/56 standard, and the MPEG standard, each employ
redundant/replicating table maps evidencing a reasonable expectation of
success suggesting a similar such table map for program acquisition.
Secondary Considerations
Appellant argues that “[o]f all the possible solutions to the channel
latency problem, the world’s leading experts, the ATSC group, adopted
precisely one: the ‘074 Patent inventor’s proposal to include information
replicated from the MPEG Program Map Table in a separate table.” (Reply
Br. 26.) Appellant asserts that A/55 and A/56 were in many ways competing
and incompatible standards that were both rejected in favor of the
subsequent A/65 standard (which corresponds to the ‘074 patent invention).
(Id.) According to Appellant, the ATSC issued an IPSI Proposal which
served as the basis for the A/65 standard and states: “‘Although these
protocols (the A/55 and A/56 standards) were individually efficient and
accomplished their purpose, their mutual implementation was difficult due
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to their structural differences and their overlapping definitions. IPSI solves
this problem.’” (Reply Br. 26-27 (citation omitted).)10 Appellant maintains
that this evidence shows that “the ATSC committee rejected the prior art
methods of A/55 and A/56 as unworkable separately or, even more so, in
combination.” (Reply Br. 27.)
Apparently the inventors were involved in the IPSI Proposal as
discussed further below. But even if they were not, Appellant’s argument
implies that a known latency problem existed at the time of the invention.
This supports the Examiner’s findings supra showing that skilled artisans
recognized latency problems associated with the known methods outlined in
the MPEG, A/55, and A/56 standards. “Under the correct analysis, any need
or problem known in the field of endeavor at the time of invention and
addressed by the patent can provide a reason for combining the elements in
the manner claimed.” KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 421
(2007).
In addition, Appellant’s argument shows that there was a known
“difficult” problem in using two separate standards. The inventors solved
the problem, in part, by combining different aspects of the two known
standards. At most, Appellant’s evidence establishes that it was “difficult”
to mutually implement the two standards, but notwithstanding the difficulty,
this “mutual implementation” of the two standards occurred or was at least
envisioned. As an example (aside from Appellant’s argument), Eyer, the

10 Advanced Television Systems Committee, An Overview of the IPSI
Protocol for Terrestrial Broadcast with Application Examples, Document
T3/S8-192 (July 9, 1997) (attached as Ex. R, App. Br. App’x) (also referred
to as “IPSI Proposal” as indicated supra, see Reply Br. 27)
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A/55 standard, and the A/56 standard each employ the concept of channel
grouping in a table map. (E 1-2; A/55 3.) Further, the A/55 and A/56
standards are based on the MPEG standards and in particular on information
packets transmitted in one or more PSI tables. (MP 1-4; supra note 8.) The
MPEG standard shows that MPEG streams in general “provide[] significant
flexibility in the construction and transmission of the PSI.” (MP 4.) Hence,
even if combining some aspects of the A/55 and A/56 standards may have
been difficult, this “significant flexibility” provides a mechanism for
overcoming that difficulty.
Appellant buttresses the assertion of difficulty by stating that “[t]he
ATSC adopted the ‘074 Patent inventor’s suggestion despite criticism from
some that the idea was ‘risky’.” (Reply Br. 26.) The asserted basis for this
risk stems for testimony before the ITC as follows:
Q. What were the criticisms, as you understood it, that
were made to this idea when you presented it.
A. Ones that I remember are replicating information, for
example, has a risk, because it is possible that the information
no longer matches, and receivers can get confused about that.
And I also remember that some people from the cable industry
argued that because they already had deployed enough
equipment in cable systems, that it would actually hard [sic] for
them to follow those, to do replication.”
(Heredia Tr. at 174:4-15.)11
In other words, the testimony shows that the industry criticism
involved a risk of stale information resulting in “confused” receivers and

11 Partial Transcript of Testimony of Edwin A. Heredia in International
Trade Commission Investigation No. 337-TA-617 (Aug. 11-22, 2008)
(attached as Exhibit Q, App. Br. App’x). (See also App. Br. 75-77 (listing
the attachments to the Brief).)
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market based risk presumably involving the required alteration of older
equipment that cable companies had previously inserted. Entirely missing
from this asserted criticism is the notion that any skilled artisan considered
the invention to involve anything more than routine skill to overcome known
receiver problems – or more simply, to modify existing receivers to
accommodate the invention.
While acceptance by the industry is indicative of unobviousness, in
the case at hand, based on the testimony supra, and Appellant’s arguments,
one named inventor (Heredia) was involved in convincing the ATSC
industry standard group to adopt the invention as (at least part of) a new
ATSC standard while according to the third party requestor, another named
inventor (Ozkan) was a member of the “ATSC T3/S8” specialist group and
the T3/S8 ad hoc group that was responsible for drafting these standards –
i.e., the A/65 proposal. (Third Party Request for Reexamination 22
(Reexam. Cont. 90/010075); see also Reply Br. 26-27 (briefly describing the
ATSC T3/S8 subcommittee and A/65 proposal).) Appellant’s attorney
verified that at least some of the inventors were on the ATSC panel. (BPAI
Hearing Tr. 12 (“Same inventors were filing - - the same people on our
patent and the ATSCs.”).)12
Under these circumstances, adoption by ATSC is only minimally
probative of unobviousness. For example, the inventors may have
influenced other ATSC committee members not solely because the invention

12 Appellant’s statement at the oral hearing came in response to a question
by Judge Easthom about whether the ATSC standard committee published
the IPSI Proposal (i.e., the T3/S8 - 192 document) describing the invention
prior to the effective filing date of the ‘074 patent. (See id. at 11.)
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was unobvious but because a solution (requiring minimal additional effort)
was readily available. Appellant’s Briefs do not point to evidence detailing
the decision making process and in particular what influence the inventors
may have had over the adoption of the ATSC A/65 standard. The totality of
evidence presented, including evidence related to acceptance by the industry,
alleged skepticism, teaching away, and other factors of record, does not
outweigh the findings of record highlighted supra supporting obviousness.
While Appellant also asserts that the combination does not suggest the
means and step of identifying and assembling the channel map information,
the arguments presented essentially reduce to the same arguments discussed
supra. That is, Appellant maintains that the combination does not teach or
suggest identifying or assembling all four pieces of information required to
obtain a program. (See App. Br. 58-59.) To the contrary, as discussed
supra, the combination does suggest all four pieces of required program
acquisition data, and, based on the arguments presented and the Examiner’s
findings (Ans. 17-19) and responses (Ans. 53-55), the means and step of
identifying and assembling such information.
Based on the foregoing discussion, the Examiner did not err in finding
and concluding that Eyer and the known A/55, A/56, and MPEG industry
standards, render obvious independent claims 1, 11, 13, 14, 16, 23, and 24
and dependent claims 3, 4, 10, 18, and 22.13

13 Although Appellant asserts that certain of these claims (e.g., 3, 11, 14,
and 18) are not anticipated (App. Br. 46-49), Appellant does not present
separate patentability arguments against the Examiner’s obviousness
rejection of claims 3, 4, 10, 18, 22 (Ans. 24-26, 29-30). Rather, Appellant
relies on arguments presented against the obviousness of claim 1. (See App.
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Dependent claims 2, 12, 15, and 17
Appellant’s arguments focus on claim 2 (App. Br. 45-46), hereby
selected as representative of claims 2, 12, 15, and 17. See 37 C.F.R.
§ 41.37(c)(1)(vii). Claim 2 follows: “Apparatus according to claim 1,
wherein said channel map information further associates an individual
program with a corresponding program clock reference (PCR) value.”
Appellant argues that the PCR (i.e., “program clock reference”) value itself
does not appear in the normal MPEG PMT stream, but rather only the PCR
PID, which points to the PCR value, appears therein. As such, Appellant
concludes that a skilled artisan would not have replicated something (the
PCR value) which is not in the MPEG PMT. (Reply Br. 32.)
This argument is not commensurate in scope with claim 2, which does
not require a replication of the PCR value. Claim 2 is broad enough to read
on the PCR PID normally included in the MPEG PMT and replicated in a
channel map according to the obviousness findings described supra with
respect to claim 1. A pointer in a channel map to the PCR value “associates
an individual program” as set forth in claim 2. As such, the Examiner did
not err in finding and concluding that the applied combination renders
claims 2, 12, 15, and 17 obvious.

Br. 63; Reply Br. 31.) Therefore, Appellant has not presented a sufficient
argument, if any, to disturb the Examiner’s obviousness analysis and
conclusion. See Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010)
(precedential) (“If an appellant fails to present arguments on a particular
issue — or, more broadly, on a particular rejection — the Board will not, as
a general matter, unilaterally review those uncontested aspects of the
rejection.”).
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Dependent claim 5
While Appellant nominally (at most) indicates that claim 5 is
separately patentable from claim 1, the arguments track those presented for
patentability of claim 1. (App. Br. 65.) Accordingly, the Examiner did not
err in finding that the applied art renders claim 5 obvious.
Dependent claims 6, 7, and 19
Appellant argues that claims 6 and 19 require “two ‘identification
numbers used in conjunction to identify said broadcast channel’” (App. Br.
66.) Appellant explains that in the prior art, users employed only one
channel number to identify a single digital channel. According to Appellant,
users would enter, for example, “2” for a CBS channel in NY City, but
according to the invention, users will enter for example, a “2-1.” (App. Br.
66.) The Examiner explained that Eyer specifically discloses that ABC-1,
ABC-2, and ABC-3 are designated respectively as 10.1, 10.2, and 10.3, or
10-A, 10-B, etc. to reinforce channel groupings under a primary channel.
(Ans. 61 (quoting and citing Eyer at col. 9, l. 58 to col. 10, l. 7).) The
Examiner also found that Eyer discloses a four character designator in the
channel information table. (Ans. 62.) The Examiner reasoned that it would
have been obvious to place a two part identification number in a channel
designator to reinforce the concept of channel groupings. (Id.)
Appellant argues that these two part channel designators only appear
on Eyer’s television screen and that Eyer discloses a unique channel number
in the range from 1 to 999. (App. Br. 68.) With respect to claim 7,
Appellant further argues that a user in Eyer does not enter two numbers and
that Eyer’s system only transmits one number. (App. Br. 70.) Appellant
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also argues that sending two numbers would have been counterintuitive and
wasteful of bit resources.
Appellant’s arguments are unconvincing. Since Eyer employs up to
three digits to designate channels, it is not clear how bit resources would be
any greater in the sending of two numbers, assuming for the sake of
argument that there is a distinction between a digit and a number as set forth
in the claim. Similar remarks apply to Eyer’s use of four characters.
As such, substituting a user entry of a two part number and/or
transmission of same in place of Eyer’s digits (ranging from 1 to 999) or in
place of Eyer’s four characters amounts to a mere substitution (of numbers
or characters) and would have been obvious for the purpose of advancing
Eyer’s desire to reinforce the concept of a channel grouping as the Examiner
reasoned. Eyer notes that a channel group can be maintained no matter
what the channel number because a channel designation is “virtual” (E 1) –
thereby suggesting other such virtual designations such as 10.1, 10.2, etc. as
transmissions, inputs, or otherwise. Alternatively, as the claims do not
require the numbers to be in more than one packet, any distinction in
transmission of Eyer’s three digit number or four character designator over
the claimed two (side-by-side) numbers constitutes a non-functionally
descriptive distinction. Based on the foregoing discussion, the Examiner did
not err in finding that the applied combination renders claims 6, 7, and 19
obvious.

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Claims 8, 9, 20, and 21
Appellant argues that these claims are not obvious based on reasons
presented for patentability of claim 1 and because the prior art does not
suggest conveying broadcast channel associating information in a descriptor
section of said channel map information. (App. Br. 70-72.) Based on the
arguments presented, claim 8 is selected as representative of claims 8, 9, 20,
and 21. See 37 C.F.R. § 41.37(c)(1)(vii).
The Examiner found that it was well known in the art to convey
information in descriptor sections in a map. (Ans. 32-33 (citing the MPEG
and the A/55 standards).) Appellant does not contest this finding. The
Examiner also found that the A/55 discloses PID information in a descriptor
list in a Master Guide Table (citing “at least Figure 5.7” and also “A/55 at
[§] 5.1,”) thereby rendering obvious using descriptors in another table,
including the CIT table. (Ans. 62-63). The Examiner also reasoned that the
MPEG Program Map Table (another channel information table) contains
descriptors and that the reasoning for replicating information as required by
claim 1 supports also replicating descriptors in the CIT table. (Ans. 62.)
The Examiner also reasoned that “[a] person skilled in the art considering
the A/55 standard would naturally consider the alternative of moving the
PID information into a descriptor section for purposes of making the data
layout of the A/55 Channel Information Table less cluttered.” (Ans. 33.)
Appellant argues that this latter “conclusion” amounts to “hindsight
reconstruction” and that “no disclosure in any prior art reference includes an
express or inherent teaching that the required information should be carried
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in a descriptor within the ‘channel map information.’” (App. Br. 72 (citing
Bove Decl. at ¶ 93).)
Appellant’s argument and Dr. Bove’s opinion about what the
references disclose is only partially helpful in determining what the
references suggest. Based on the evidence and arguments presented,
descriptors in mapping tables were known mechanisms for transmitting
information. As such, placing replicated map information in or with such
descriptors would have been obvious as a change to another known format
for the predicable purpose of transmitting information in a recognizable
format. While Appellant challenges the Examiner’s conclusion as based on
hindsight, Appellant does not specifically state or point to evidence showing
that skilled artisans would not have understood that descriptors in maps, or
descriptors in general, involved known programming techniques or
descriptive material for transmitting information or known techniques for
simplifying the information presentation. Based on the foregoing
discussion, the Examiner did not err in finding that the applied combination
renders claims 8, 9, 20, and 21 obvious.
Conclusion
The Examiner did not err in finding and determining that it would
have been obvious, based on a combination of Eyer, the A/55, the A/56, and
the MPEG standards, to transfer a program map replicating map information
already replicated in MPEG streams.

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DECISION
The Examiner’s decision to reject appealed claims 1-24 is affirmed.
Requests for extensions of time in this ex parte reexamination
proceeding are governed by 37 C.F.R. § 1.550(c). See 37 C.F.R. § 41.50(f).
AFFIRMED

KMF

Counsel for Patent Owner:
Robert A. Saltzberg
Morrison & Foerster, LLP
425 Market Street
San Francisco, California 94105-2482

Counsel for Third Party Requesters:
Jason S. Feldmar
Gates & Cooper LLP
Howard Hughes Center
6701 Center Drive West, Suite 1050
Los Angeles, CA 90045

Jennifer C. Bailey
Hovey Williams LLP
10801 Mastin Boulevard, Suite 1000
84 Corporate Woods
Overland Park, KS 66210