Ex Parte Bazata

Patent Trial and Appeal Board

Nov 13, 2017

14145494 (P.T.A.B. Nov. 13, 2017)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O.Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
14/145,494 12/31/2013 Michael Bazata P2013-10-05(01258-0013) 1005
113273 7590
Bejin Bieneman PLC
300 River Place
Suite 1650
Detroit, MI 48207
11/15/2017 EXAMINER
RABOVIANSKI, JIVKA A
ART UNIT PAPER NUMBER
2426
NOTIFICATION DATE DELIVERY MODE
11/15/2017 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
docket @ b2iplaw .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MICHAEL BAZATA
(Applicant: ECHOSTAR TECHNOLOGIES LLC)
Appeal 2017-001629
Application 14/145,494
Technology Center 2400
Before BRADLEY W. BAUMEISTER, JOSEPH P. LENTIVECH, and
AMBER L. HAGY, Administrative Patent Judges.
HAGY, Administrative Patent Judge.
DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 1—8, 10-17, 19, and 20, which are all of the
pending claims.2 We have jurisdiction over these claims under 35 U.S.C.
§ 6(b).
We affirm.
1 Appellant identifies the real party in interest as EchoStar Technologies
LLC. (App. Br. 2.)
2 Claims 9 and 18 have been canceled in an Amendment dated August 26,
2015. (See also Final Act. 2.)
Appeal 2017-001629
Application 14/145,494
STATEMENT OF THE CASE
Introduction
According to Appellant, the claimed invention allows a user to “view
a lower resolution version of. . . requested media content. . . while a higher
resolution version is temporarily unavailable.” (Spec. 1 5.) Further
according to Appellant, the invention includes a set-top box with two tuners,
wherein each tuner receives a signal representing media content at a
different resolution, and “[a] processing device is configured to monitor the
second tuner to determine if the second tuner is receiving the second signal.”
(Id.)
Exemplary Claim
Claims 1,11, and 20 are independent. Claim 1, reproduced below
with the disputed limitation italicized, is exemplary of the claimed subject
matter:
1. A set top box comprising:
a first tuner configured to receive a first signal
representing media content transmitted at a first resolution;
a second tuner configured to receive a second signal
representing the media content transmitted at a second resolution
higher than the first resolution; and
a processing device configured to receive a user input
requesting the media content, select the first tuner to temporarily
output the requested media content at the first resolution in
response to the user input, and monitor the second tuner to
determine if the second tuner is receiving the second signal,
wherein the user input requests the media content at the second
resolution.
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Application 14/145,494
References
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Komar et al. (“Komar”) US 6,766,100 B1 July 20, 2004
Radloff et al. (“Radloff”) US 2008/0141317 Al June 12, 2008
Elkins et al. (“Elkins”) US 2013/0156130 Al June 20, 2013
Rejections3
Claims 1—6, 10-15, 19, and 20 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Radloff and Komar. (Final Act. 2—6.)
Claims 7, 8, 16, and 17 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Radloff, Komar, and Elkins. (Final Act. 6—7.)
ISSUES
(1) Whether the Examiner erred in finding the combination of
Radloff and Komar teaches or suggests
a processing device configured to receive a user input requesting
the media content, select the first tuner to temporarily output the
requested media content at the first resolution in response to the
user input, and monitor the second tuner to determine if the
second tuner is receiving the second signal, wherein the user
input requests the media content at the second resolution^]
as recited in independent claim 1 and commensurately recited in
independent claims 11 and 20.
(2) Whether the Examiner erred in finding the combination of
Radloff and Komar teaches or suggests “wherein monitoring the second
tuner includes monitoring a signal strength of the second signal received at
3 All rejections are under the provisions of 35 U.S.C. in effect prior to the
effective date of the Leahy-Smith America Invents Act of 2011.
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Application 14/145,494
the second tuner or contents of a channel mapping table,” as recited in
dependent claim 15.
ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellant’s
arguments the Examiner has erred. We disagree with Appellant’s
conclusions and we adopt as our own: (1) the findings and reasons set forth
by the Examiner in the action from which this appeal is taken (Final Act. 2—
7) and (2) the reasons set forth by the Examiner in the Examiner’s Answer in
response to Appellant’s Appeal Brief. (Ans. 2—4.) We concur with the
conclusions reached by the Examiner, and we highlight the following for
emphasis.4
The Examiner finds Radloff teaches or suggests the “first tuner” and
“second tuner” limitations and relies on Komar as teaching the “processing
device” limitation, as recited in claim 1. (Final Act. 2-4.) With regard to
the Komar reference in particular, the Examiner finds:
Komar includes a set top box with two tuners wherein both tuners
can receive different or the same channel with different quality.
The common controller connected to both tuners commonly
controls the first tuner 12 based on a selectable first capture
quality and the second tuner 14 at an independent selectable
capture quality setting. Both tuners can receive different
channels with different quality or both tuners receive the same
channel with different quality. The common controller 16
determines a current channel of each tuner and controls both
tuners to receive the same channel. Therefore, the common
controller monitors the second tuner [to determine] if the second
4 Only those arguments made by Appellant have been considered in this
decision. Arguments Appellant did not make have not been considered and
are deemed to be waived. See 37 C.F.R. § 41.37(c)(l)(iv).
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Application 14/145,494
tuner receives the second signal (different or the same as the first
signal).
(Ans. 2 (citations omitted) (citing Komar 4:8—11, 5:14—17); see also Final
Act. 3^4 (citing Komar 8:1—22, 9:7—50).) Thus, the Examiner finds Komar
teaches or suggests the limitation “monitor the second tuner to determine if
the second tuner is receiving the second signal” by teaching a common
controller connected to first and second tuners to control the quality status of
both tuners. {E.g., Ans. 2 (citing Komar at Fig. 1/ controller/processor).)
Appellant argues the Examiner’s findings are in error because
“Komar’s set top box . . . does not ‘monitor the second tuner to determine if
the second tuner is receiving the second signal.’” (App. Br. 7.) In particular,
Appellant asserts Komar does not teach “monitor[ing],” as claimed, because
Komar “will attempt to record whatever signal, if any, is received, even if
that signal is too weak to sufficiently present some or all of the media
content.” {Id. (emphasis added); see also Reply Br. 2.) In other words,
Appellant reads “monitor,” as recited in claim 1, as requiring that the
processing device determine not only that the second tuner “receive[s]” the
second signal, but also that the second tuner receives “a sufficient signal to
properly record” the content. (See App. Br. 8 (emphasis added).)
Appellant’s argument is not persuasive because it is premised, in part,
on an overly narrow construction of the claimed invention. Although
limitations are to be given their broadest reasonable interpretation in light of
the specification, we do not read limitations into the claims from the
specification. See, e.g., In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir.
1993). As the Examiner notes, and we agree, Appellant’s claims require
determining whether the second tuner receives the second signal; Appellant’s
claims do not, as Appellant contends, additionally require qualitatively
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Application 14/145,494
assessing the signal—that is, also determining whether the second signal is
“sufficient” for recording. (See Ans. 3; cf. App. Br. 7—8.)
Appellant also argues the Examiner’s findings regarding Komar are in
error because, according to Appellant, the Examiner attributes “the
‘monitoring’ of the claimed ‘processing device’ to actions taken by Komar’s
viewer.” (App. Br. 8; see also Reply Br. 3 4.) Appellant’s argument is not
persuasive of Examiner error because it mischaracterizes the Examiner’s
findings. Although the Examiner recognizes that a viewer in Komar may
make a selection of which content to watch (such as choosing a higher
resolution over a lower resolution) (Adv. Act. 2), the Examiner relies on
Komar’s disclosure of a common controller, not a human viewer, as teaching
the claimed “processing device configured to . . . monitor the second tuner.”
(Ans. 2—3 (citing Komar 4:8—11, 5:14—17); see also Final Act. 3^4 (citing
Komar 8:1—22, 9:7—50).) The Examiner finds, in particular, that Komar’s
common controller monitors first and second signals on first and second
tuners, respectively, and, accordingly, determines if the second tuner is
receiving the second signal, as claimed. (Id.)
We agree the Examiner’s findings are supported by Komar’s
teachings. As the Examiner finds, and we agree, Komar teaches a “common
controller” that “controls digital capturing by obtaining status and other
information on the first and second tuners to record from a same or different
channel.” (Komar 5:29-31.) For example, to allow a viewer to replay a
portion of a live video, the common controller
determines a current channel of each tuner and controls both
tuners to receive the same channel in response to a replay
activation signal .... [T]he common controller monitors the
channels prior to this time on the first and second tuners and
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Application 14/145,494
programs the other tuner to receive the same channel as the first
tuner so that the replay of the currently live program is readily
obtained at a different capture quality as determined by the
capture quality factors ....
{Id. at 5:14—48; see also Ans. 2.) We further note that Komar’s claims,
which are part of Komar’s disclosure, also support the Examiner’s findings
by reciting a “processing device” that controls a “first tuner to receive first
incoming signals at a first capture quality” on a first channel and controls a
“second tuner to receive second incoming signals” associated with the first
channel or a second channel. (E.g., id. at 9:13—20 (claim 6).)
In short, we are not persuaded of error in the Examiner’s finding that
Komar teaches or suggests the “processing device configured to . . . monitor
the second tuner to determine if the second tuner is receiving the second
signal,” as recited in independent claim 1 and commensurately recited in
independent claims 11 and 20. We, therefore, sustain the Examiner’s
35 U.S.C. § 103(a) rejection over Radloff in combination with Komar of
independent claims 1,11, and 20, which are argued collectively along with
dependent claims 2—6, 10, 12—14, 19, and 20 on the same basis.
Appellant presents limited argument separately for dependent
claim 15, which depends from claim 11 and recites “wherein monitoring the
second tuner includes monitoring a signal strength of the second signal
received at the second tuner.” (App. Br. 9; id. at 13 (Claims App’x).)
Specifically, Appellant argues:
As discussed above, the Office’s interpretation of Komar is that
the viewer selects high resolution content for playback, which
says nothing about Komar’s set top box being able to verily that
the high resolution tuner is actually receiving the high resolution
signal at all, let alone based on “signal strength” or “a channel
mapping table.”
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(App. Br. 9 (emphasis added).)
This argument is not persuasive because it does not address the
Examiner’s findings regarding claim 15, wherein the Examiner relies on
Radloff, not Komar, as teaching a determination of signal strength. (Final
Act. 5—6 (citing Radloff, Fig. 3 and Tflf 49, 69, 70).)
In that regard, we also note Appellant’s contention that “[t]he
Examiner’s Answer did not present any arguments rebutting Appellant’s
arguments for the patentability of dependent claim 15” (Reply Br. 4) is
misplaced because Appellant did not address the Examiner’s specific
findings for dependent claim 15. Appellant’s argument regarding claim 15 is
also not persuasive for the reasons noted above regarding independent
claim 11 (argued collectively with claim 1)—namely, Appellant incorrectly
characterizes the Examiner’s findings as premised on a viewer, rather than
Komar’s common controller, performing the “monitoring” function recited
in the independent claims. In short, Appellant has not persuasively rebutted
the Examiner’s findings regarding claim 15, and we, therefore, sustain the
Examiner’s 35 U.S.C. § 103(a) rejection of claim 15 over the combination of
Radloff and Komar.
We likewise sustain the Examiner’s obviousness rejection of
dependent claims 7, 8, 16, and 17 over the additionally cited prior art listed
above (Elkins). Appellant has not particularly pointed out errors in the
Examiner’s reasoning regarding the additional teachings of Elkins, but
merely asserts patentability based upon these claims’ dependency from
independent claims 1 and 11. (App. Br. 9.)
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DECISION
For the above reasons, the Examiner’s rejections of claims 1—8, 10—
17, 19, and 20 are affirmed.
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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