Ex Parte Armstrong et al

Board of Patent Appeals and Interferences

Mar 2, 2007

09447472 (B.P.A.I. Mar. 2, 2007)

The opinion in support of the decision being entered today was not written
for publication and is not binding precedent of the Board.

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte JAMES B. ARMSTRONG and CHRISTOPHER W. B. GOODE
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Appeal 2007-0031
Application 09/447,472
Technology Center 2600
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Decided: March 2, 2007
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Before KENNETH W. HAIRSTON, JOSEPH F. RUGGIERO, and
JOSEPH L. DIXON, Administrative Patent Judges.
DIXON, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. §134 from the
Examiner's final rejection of claims 1-9, 19 and 21-24, which are all of the
claims pending in this application. Claims 10-18 and 20 have been
canceled.

We AFFIRM.
Appeal 2007-0031
Application 09/447,472

BACKGROUND
Appellants’ invention relates to a method and apparatus for hierarchical
distribution of video content for an interactive information distribution
system. An understanding of the invention can be derived from a reading of
exemplary claim 1, which is reproduced below.
1. In an interactive information distribution system
including a network of provider equipment and subscriber
equipment, apparatus comprising:
a plurality of servers coupled to respective subscriber
equipment, each of said servers having a primary storage
partition for storing frequently requested video assets, each of
said servers having a secondary storage partition for storing a
portion of infrequently requested video assets, said infrequently
requested video assets being divided and selectively distributed
amongst said secondary partitions of said plurality of servers;
and
a manager, coupled to each of said plurality of servers for
routing video assets between said servers in response to video
asset requests, and for migrating video assets between storage
partitions in response to a video asset request rate traversing a
threshold rate.

PRIOR ART
The prior art references of record relied upon by the Examiner in
rejecting the appealed claims are:
Ueno US 6,438,596 B1 Aug. 20, 2002
Kenner US 6,269,394 B1 Jul. 31, 2001
Kikinis US 6,163,795 Dec. 19, 2000
Hokanson US 6,094,680 Jul. 25, 2000
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REJECTIONS
Claims 1-6, 19, 22, and 23 stand rejected under 35 U.S.C. 103(a) as
being unpatentable over Ueno in view of Hokanson. Claims 7-9 and 24
stand rejected under 35 U.S.C. 103(a) as being unpatentable over Ueno and
Hokanson as applied to claims 6 and 23 above, and further in view of
Kikinis. Claim 21 stands rejected under 35 U.S.C. 103(a) as being
unpatentable over Ueno and Hokanson as applied to claim 19 above, and
further in view of Kenner.
Additionally we note that claims 21-24 are improper dependent claims
that depend from canceled claim 20. The Examiner should correct the
deficiency in any future prosecution. We will treat the claims as if they
depend directly from independent claim 19.
Rather than reiterate the conflicting viewpoints advanced by the
Examiner and Appellants regarding the above-noted rejections, we make
reference to the Examiner's Answer (mailed Apr. 17, 2006) for the reasoning
in support of the rejection, and to Appellants’ Brief (filed Jan. 10, 2006) and
Reply Brief (filed Jun. 16, 2006) for the arguments thereagainst.

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OPINION
In reaching our decision in this appeal, we have given careful
consideration to Appellants’ specification and claims, to the applied prior art
references, and to the respective positions articulated by Appellants and the
Examiner. As a consequence of our review, we make the determinations that
follow.
Appellants main arguments are that neither Ueno nor Hokanson
teaches or suggests “partitioning of [storage on] servers” and “said
infrequently requested video assets being divided and selectively distributed
amongst said secondary partitions of said plurality of servers” (Reply Br. 2).
Appellants additionally argue that even if the combination were to teach or
suggest the partitioning of (storage on) servers, the combination of Ueno and
Hokanson fails to teach or suggest “said infrequently requested video assets
being divided and selectively distributed amongst said secondary partitions
of said plurality of servers” (Reply Br. 3). We cannot agree with Appellants.
From our review of the teachings of Ueno and Hokanson, we find that
Hokanson alone teaches and suggests the invention in independent claim 1
as follows:
In an interactive information distribution system including a
network of provider equipment [24, 26, 28] and subscriber
equipment 42 [see Hokanson at Figure 1; col. 4, ll. 47-62],
apparatus comprising:
a plurality of servers [30, 34, 38] [see Hokanson at Figure
1; col. 2, ll. 62-67; col. 4, ll. 47-62] coupled to respective
subscriber equipment [42], each of said servers [30, 34, 38]
having a primary storage [32, 36, 40] [see Hokanson at Figure
1; col. 2, ll. 10-28, 62-67; col. 3, ll. 1-31; col. 4, ll. 47-62, col.
9, ll. 16-67] partition for storing frequently requested video
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assets, each of said servers having a secondary storage partition
[32, 36, 40] for storing a portion of infrequently requested
video assets, said infrequently requested video assets being
divided and selectively distributed amongst said secondary
partitions of said plurality of servers; and
a manager [70, 72], [see Hokanson at Figure 2; col. 2, ll.
10-28, 62-67; col. 3, ll. 16-31; col. 6, ll. 30-62, col. 9, ll. 16-67]
coupled to each of said plurality of servers for routing video
assets between said servers in response to video asset requests,
[col. 9, ll. 61-67] and for migrating video assets between
storage partitions [col. 9, ll. 61-67] in response to a video asset
request rate traversing a threshold rate [col. 9, ll. 43-47, defined
cost/availability balance].
We find that Hokanson teaches the hierarchical use of various
mediums for storage of the video assets where each of the video assets
are prioritized within a storage hierarchy. We find this hierarchical
structure to be a partitioning of the storage between primary and
secondary partitions. Furthermore, we find that it would have been
obvious to one skilled in the art at the time of the invention to
partition a single medium into multiple partitions which may have
varied access times for retrieval where the primary partition would
have been the one with the greatest accessibility.
Additionally, we find that the language of independent claim 1
merely requires that “said infrequently requested video assets being
divided and selectively distributed amongst said secondary partitions
of said plurality of servers” as a set distribution. We find that the
infrequently requested video assets in Hokanson are divided between
the various servers and sites and that the video assets had been
selectively distributed amongst said secondary partitions of said
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plurality of servers. We find no limitation in independent claim 1
which requires the manager to perform the selective management of
all of the secondary partitions in a dynamic manner.
Here, we find that the language of independent claim 1 merely
requires that the manager is coupled to the servers, which we find is
met here with the coupling through the network and routing the video
assets between servers. Hokanson also teaches that the individual
server would migrate video assets between at least its own storage
partitions. (Hokanson, col. 3, ll. 17-32.) Therefore, we find that
Hokanson teaches and fairly suggests the invention as recited in
independent claim 1.
As noted above, Hokanson does teach all the limitations of
claim 1. While this is, in effect, a holding that claim 1 is anticipated
under 35 U.S.C. § 102(b), affirmance of the 35 U.S.C. § 103 rejection
is appropriate, since it is well settled that a disclosure that anticipates
under 35 U.S.C. § 102 also renders the claim unpatentable under 35
U.S.C. § 103, for "anticipation is the epitome of obviousness." Jones
v. Hardy, 727 F.2d 1524, 1529, 220 USPQ 1021, 1025 (Fed. Cir.
1984). See also In re Fracalossi, 681 F.2d 792, 794, 215 USPQ 569,
571 (CCPA 1982); In re Pearson, 494 F.2d 1399, 1402, 181 USPQ
641, 644 (CCPA 1974). Thus, we sustain the Examiner's rejection of
appealed claim 1 under 35 U.S.C. § 103.

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Additionally, we find that it would have been obvious to one
skilled in the art at the time of the invention to have combined the
teachings of Ueno with respect to implementation of an interactive
information distribution system on a larger network of servers as
described in Ueno with those of Hokanson. Alternatively, if the
various teachings within Hokanson are viewed as different teachings
so as to require a motivation, we find that it would have been obvious
to one skilled in the art at the time of the invention to have combined
the teachings of the single server into those of the LAN as shown in
Figure 4 since this would have been the logical extension of the
smaller system into the larger system.
With this set forth above, we find that the Examiner has
established a prima facie of obviousness over the combination of
Ueno and Hokanson, and we will address Appellants arguments.
Appellants argue that Ueno is devoid of teachings with respect
to partitioning servers and dividing and selectively distributing
infrequently requested video assets (Br. 11). While we agree with
Appellants that Ueno is lacking in many of the teachings of the
express language of independent claim 1, Appellants' arguments are
not commensurate with that express language of independent claim 1.
Specifically, the language of independent claim 1 requires a
primary and a secondary “storage partition” rather than a partitioned
server and “said infrequently requested video assets being divided and
selectively distributed amongst said secondary partitions of said
plurality of servers” rather than an active step of “dividing” and
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“distributing” as argued by Appellants. The storage portion of the
claimed system is drafted as static and the manager portion of the
claimed system is dynamic as with “routing” and “migrating” of the
video assets. Therefore, we find that the Hokanson teaches these
respective static and dynamic claim limitations.
Appellants argue that Ueno is devoid of any teaching or
suggestion of any device partitioning much less partitioning of servers
into first second storage partitions (Br. 12-13). While we agree that
Ueno does not disclose a partitioned storage on a single server, we
find that Hokanson clearly teaches this limitation, and we find that
Ueno would have suggested a similar configuration partitioned
storage on individual servers rather than server to server partition.
Appellants argue that Hokanson teaches partitioning a network
rather than server partitioning. We disagree, as discussed above. We
find that Hokanson teaches and suggests partitioning via the use of the
varied storage media and do not find that these varied media require
different servers as Appellants contend for the network. Hokanson
discusses the database server at column 18 as cited by Appellants at
page 13 of the Brief. We find this to be a teaching of a partitioned or
hierarchical storage on a single server and this may also be replicated
on plural database servers throughout a network. Appellants contend
that the storage on different mediums for priority is not “partitioning
of servers” (Br. 14). We disagree, and find that Appellants have not
identified any specific definition of the term “partitioned” in the
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specification or in the relevant art. Therefore, Appellants' argument is
not persuasive.
Appellants argue that Hokanson fails to teach or suggest that
each of the plurality of servers has both primary and secondary
partitions and even if taught or suggested, then Hokanson does not
teach or suggest divided and selectively distributed video assets (Br.
14). Again, we disagree with Appellants, and find that Appellants
have not identified any specific definition of the term “divided and
selectively distributed” in the specification or in the relevant art.
Therefore, Appellants' argument is not persuasive in light of our
discussion above.
As to Appellants’ arguments to the combination of the
teachings and that the combination teaches only partitioning a
network rather than servers (Br. 15), we have addressed this above in
our discussion of Hokanson and Ueno. Therefore, Appellants'
argument is not persuasive, and we will sustain the rejection of claim
1.
With respect to dependent claim 2, Appellants rely upon the
base argument with respect to independent claim 1 and further argue
that the portion of Hokanson relied upon by the Examiner does not
teach or suggest that the manager allocates the video asset to at least
one of the server’s primary or secondary partitions. We disagree as
discussed above, and we find that the manager would migrate the
video asset up or down in the hierarchy which may entail replicating
or removing the asset or up or down-grading the asset to a higher
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storage medium. Here, we note that a single manager on a single
server may control only that server’s assets, but this sufficiently
teaches or suggests the invention, as claimed. Therefore, Appellants'
argument is not persuasive, and we will sustain the rejection of claims
2-6.
With respect to independent claim 19, Appellants generally
present the same arguments which were presented with respect to
independent claim 1 and dependent claim 2 which we did not find
persuasive. Similarly, we do not find these arguments persuasive with
respect to independent claim 19 and dependent claims 22 and 23
With respect to dependent claims 7-9 and 24, Appellants argue
that Kikinis does not teach or suggest each and every element of
Appellants’ invention (Br. 24). We do not find Appellants’ argument
persuasive. Appellants additionally rely upon the arguments made
with respect to independent claims 1 and 19 which we did not find
persuasive. Therefore, Appellants' argument is not persuasive, and we
will sustain the rejection of claims 7-9 and 24.
With respect to dependent claim 21, Appellants contend that
Kenner does not remedy the deficiency in the base combination of
Ueno and Hokanson (Br. 26-27). Since we do not find a deficiency in
the base combination, we will sustain the rejection of claim 21.
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CONCLUSION
To summarize, we have sustained the rejection of claims 1-9, 19 and 21-
24 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 CFR § 1.136(a).
AFFIRMED

pgc

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