Ex Parte Blanchard et alDownload PDFPatent Trial and Appeal BoardFeb 8, 201611847232 (P.T.A.B. Feb. 8, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 111847,232 08/29/2007 37123 7590 02/08/2016 FITCH EVEN TABIN & FLANNERY, LLP 120 SOUTH LASALLE STREET SUITE 1600 CHICAGO, IL 60603-3406 FIRST NAMED INVENTOR Robert Blanchard 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 ATTORNEY DOCKET NO. CONFIRMATION NO. 7114-104047-US 1793 EXAMINER CHIN, RICKY ART UNIT PAPER NUMBER 2423 MAILDATE DELIVERY MODE 02/08/2016 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 PATENT TRIAL AND APPEAL BOARD Ex parte ROBERT BLANCHARD and MARK EYER Appeal2014-000104 Application 11/847,232 Technology Center 2400 Before JOSEPH L. DIXON, JOHN P. PINKERTON, and SHARON PENICK, Administrative Patent Judges. DIXON, Administrative Patent Judge. DECISION ON APPEAL Appeal2014-000104 Application 11/847,232 STATEMENT OF CASE Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 1- 39. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. The claims are directed to a method and apparatus for encoding metadata into a digital program stream. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A method for encoding user data into a digital program stream, the method comprising: receiving the digital program stream including a pre- allocated closed caption data channel having a pre-defined bandwidth; receiving the user data; determining an unused portion of the bandwidth; and encoding the user data into the unused portion, the user data comprising styles for closed caption text including at least one of text color, background color, text size, and text font, wherein the encoded user data controls the display of the closed caption text. REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Kikuchi et al. James et al. Connelly Eyer et al. Sra et al. Shrivastava et al. US 6,301,302 Bl US 2002/0019987 Al US 2002/0194607 Al US 2006/0184994 Al US 2007 /0030966 Al US 2007/0157251 Al 2 Oct. 9, 2001 Feb. 14,2002 Dec. 19, 2002 Aug. 17, 2006 Feb. 8,2007 July 5, 2007 Appeal2014-000104 Application 11/847,232 Park US 2011/0149154 Al REJECTIONS June 23, 2011 The Examiner made the following rejections: Claims 1--4, 6-12, 14--20, and 22-24 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Connelly in view of Shrivastava in further view of Eyer. Claims 5, 13, 21, 25, 27, 29, 31, 33 and 35 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Connelly in view of Shrivastava in further view of Eyer, in further view of Sra. Claims 26, 30, and 34 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Connelly in view of Shrivastava in view of Eyer in further view of Sra in further view of James. Claims 28, 32, and 36 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Connelly in view of Shrivastava in further view of Eyer in further view of Sra in further view of Park. Claims 37-39 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Connelly in view of Shrivastava in further view of Eyer in further view of Kikuchi. ANALYSIS With respect to claims 1--4, 6, 7, 9-12, 14, 15, 17-20, 22, and 23, Appellants argue the claims together. (App. Br. 11-16, 18). Therefore, we select independent claim 1 as the representative claim for the group and will address Appellants' arguments thereto. 3 Appeal2014-000104 Application 11/847,232 With respect to claim 1, Appellants contend "Connelly does not disclose or suggest 'determining an unused portion of the bandwidth' as recited in independent claim 1." (App. Br. 11). Appellants further contend that the Examiner's reliance upon "inherency" is in error because the Examiner has not shown that the missing descriptive matter of the Connelly reference is necessarily present in the teachings of the Connelly reference. (App. Br. 12-13; Reply Br. 3--4). Appellants present arguments regarding inherency, but we find the Examiner's finding and conclusion to be one based upon obviousness that a "determination" is made, rather than a finding based upon anticipation. We note the Examiner's position is that the teachings of the Connelly reference "determine[ s] an unused portion of the bandwidth in order to insert the null packets appropriately to represent the unused portions of the bandwidth as depicted in FIG. 19 and FIG. 20." (Ans. 13; Final Act. 2). We agree with the Examiner that the Connelly reference teaches and fairly suggests a determination of unused bandwidth. We further note that figure 22 of the Connelly reference identifies an iterative determination of remaining space and using the unused portion of bandwidth. Consequently, Connelly performs some determination of an unused portion of the bandwidth. We, therefore, agree with the Examiner's findings and conclusion of obviousness. With respect to Appellants' reliance upon para. 22 of the Specification to interpret the claimed invention, we note that the language of the Specification provides no further detail or context with which to differentiate the "determination" as taught and fairly suggested by the Connelly reference. (App. Br. 13). Accordingly, we broadly, but reasonably, construe the claim 1 language "determining an unused portion of the bandwidth" as 4 Appeal2014-000104 Application 11/847,232 encompassing the determination taught in Connelly, and we find Appellants' argument does not show error in the Examiner's conclusion of obviousness of claim 1 and claims 2--4, 6-12, 14--20, and 22-24, not separately argued. With respect to dependent claims 5, 13, 21, and 25-39, Appellants do not set forth separate arguments for patentability and rely upon the arguments advanced with respect to independent claims 1, 9, and 17. (App. Br. 18- 20.) Consequently, these claims fall with their respective independent claims. Claims 8, 16, and 24 With respect to dependent claims 8, 16, and 24, Appellants argue the claims together. (App. Br. 16-18). Therefore, we select dependent claim 8 as the representative claim for the group and address Appellants' arguments thereto. Appellants contend: Appellant submits that the "channel" of Shrivastava is not the source of the encoded data but merely an output for presenting the data to a user, and that the Examiner's interpretation of the channel number as the "source of the encoded user data" goes beyond the permissible "broadest reasonable interpretation" standard. The Federal Circuit held that " [ w ]hile the Board must give the terms their broadest reasonable construction, the construction cannot be divorced from the specification and the record evidence. (App. Br. 17). Appellants further contend that based upon page 9 of the Specification: The present application states that " [ e ]ncoded metadata may also be identified using one of a broadcast identifier and start bit. For example, a SMPTE identifier may be used to identify the broadcast source." In view of this disclosure, the Appellant submits that the Examiner's interpretation of the "channel" as 5 Appeal2014-000104 Application 11/847,232 the "source of the encoded data" is so "divorced from the specification and the record evidence" that such an interpretation is not reasonable and thus improper. (App. Br. 17-18; Spec. i-f 22; fn. omitted). Appellants further contend that paragraph 22 of the Specification provides the proper context for interpreting the claimed invention. (Reply Br. 2-3). Appellants contend: "determining an unused portion of the bandwidth" as recited in independent claim 1 is properly interpreted in view of the above-quoted portion of the specification as "determining the available bandwidth." Appellant submits that to the extent that the Examiner interprets mere insertion of null packets into an unused portion of the bandwidth as a determination of the available bandwidth, such an interpretation is beyond the bounds of what constitutes a broadest reasonable interpretation consistent with Appellant's specification. (Reply Br. 3). We disagree with Appellants' proffered interpretation of the claimed step of "determining an unused portion of the bandwidth." If Appellants preferred the express language proffered, Appellants should have amended the claims to specifically recite the desired interpretation. We further find Appellants' argument regarding "determination of the available bandwidth" to be incommensurate in scope with the express language recited in the language of independent claim 1 and dependent claim 8. As discussed above, we find Appellants' argument does not show error in the Examiner's conclusion of obviousness. As a result, we sustain the rejection of representative dependent claim 8 and dependent claims 16 and 24 not separately argued. 6 Appeal2014-000104 Application 11/847,232 CONCLUSIONS The Examiner did not err in rejecting claims 1- 7, 9-15, 17-23, and 25-39 based upon obviousness. The Examiner did not err in rejecting claims 8, 16, and 24 based upon obviousness. DECISION For the above reasons, we sustain the Examiner's rejections of claims 1-39. 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 7 Copy with citationCopy as parenthetical citation