Ex Parte Carbunar et al

Patent Trials and Appeals Board

Feb 15, 2019

15179765 - (D) (P.T.A.B. Feb. 15, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
15/179,765 06/10/2016
124235 7590 02/20/2019
LOWENSTEIN SANDLER LLP
Patent Docket Administrator
One Lowenstein Drive
Roseland, NJ 07068
FIRST NAMED INVENTOR
Bogdan 0. Carbunar
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.
25832.1369 (L0700C3) 3643
EXAMINER
MONTOYA,OSCHTAI
ART UNIT PAPER NUMBER
2421
NOTIFICATION DATE DELIVERY MODE
02/20/2019 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):
patents@lowenstein.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BOGDAN 0. CARBUNAR, MICHAEL D. PEARCE,
VENUGOP AL VASUDEVAN, LOREN J. RITTLE,
and MICHAEL L. NEEDHAM
Appeal2018-005548
Application 15/179, 7 65
Technology Center 2400
Before ST. JOHN COURTENAY III, ERIC S. FRAHM, and
DENISE M. POTHIER, Administrative Patent Judges.
FRAHM, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF CASE 1
Introduction
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's
Final Rejection of claims 1-9, 11, 14--17, 19, and 20. 2 Claims 10, 12, 13,
1 According to Appellants, Google, Inc. is the real party in interest (App. Br.
3).
2 Because the Examiner rejects claim 14 in both the Final Rejection (see
Final Act. 8-9) and the Examiner's Answer (see Ans. 2, 4--5), we consider
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Application 15/179,765
and 18 have been objected to by the Examiner (see Final Act., cover sheet
(Office Action Summary), box #8). We have jurisdiction under 35 U.S.C.
§ 6(b ).
We affirm.
Appellants 'Disclosed and Claimed Invention
Appellants' disclosed invention pertains to distributed content
management for video on demand (VoD) systems (Title; Spec. ,r 3). More
specifically, Appellants disclosed invention "relates generally to distributed
caching for video-on-demand systems, and in particular to a method and
apparatus for transferring content within such video-on-demand systems"
(Spec. ,r 2). As shown in Appellants' Figure 1 (labeled prior art), a video
service office (VSO) 101 acts as a master server containing a content library
for the system (Spec. ,r 4). The VSO 101 feeds video content to multiple
video home offices (VHOs) 102, which act as servers providing caching and
streaming functions (Spec. ,r 4; Fig. 1 ). The VHOs 102 in tum feed video
content to customer set-top-boxes (STBs) 103 (Spec. ,r 4; Fig. 1).
Appellants, recognizing the need for a more efficient way to download
content in a VoD system (Spec. ,r 7), disclose and claim a system ( claim 17)
and a computer-readable medium (claim 9) for performing a method (claim
claim 14 as being rejected with claim 5 under§ 103(a). And, although claim
15 is listed on the cover sheet (Office Action Summary) of the Final
Rejection (box #8) as being objected to (along with claims 10, 12-14, and
18), and claim 15 is not listed on the cover sheet of the Final Rejection as
being rejected (see Final Act. cover sheet, box #7), we consider claim 15 to
be rejected because (i) claim 15 is included in the heading of the statement
of the rejection found at page 9 of the Final Rejection (see also Ans. 2); and
(ii) the Examiner states in the Final Rejection that"[ c ]laim 15 is rejected on
the same grounds as claim 7" (Final Act. 11 ).
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1) of responding to a request for content by fetching content for multiple
content sources based on respective costs of a network impact of fetching
content from the different content sources ( e.g., different VHOs) ( claims 1,
9, 17; Figs. 2, 4---6; Abstract).
Exemplary Claims
Exemplary claims 1, 2, and 5 under appeal, with emphases and
bracketed lettering added to key portions of the claims at issue, read as
follows:
1. A method comprising:
receiving, by a processing apparatus at a first content
source, a request for content; in response to receiving the request,
determining that the content is not available from the first content
source;
[ A 1] in response to determining that the content is not
available from the first content source, determining that a second
content source cost associated with retrieving the content from
a second content source is less than a third content source cost
associated with retrieving the content from a third content
source, wherein the second content source cost is determined
based on a network impact to fetch the content from the second
content source to the first content source, and wherein the third
content source cost is determined based on a network impact
to fetch the content from the third content source to the first
content source; and
[A2] in response to determining that the second content
source cost is less than the third content source cost, fetching the
content from the second content source to the first content
source, wherein the first content source, the second content
source, and the third content source each maintain a different
subset of content available from a master content source.
2. The method of claim 1, further comprising:
[B 1] determining that there is not sufficient memory to
cache the content at the first content source; and
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[B2] selecting one or more items to evict from a cache at
the first content source to make available sufficient memory for
the content, wherein the selection of the items to evict
minimizes a network penalty associated with the eviction of the
items, wherein the network penalty is based on sizes of the
content and the items, and numbers of requests expected to be
received for the content and the items.
5. The method of claim 1, [ CJ wherein the second content source
cost is determined further based on a number of items
simultaneously transferred over a link in a network path from the
second content source to the first content source, and wherein the
third content source cost is determined further based on a number
of items simultaneously transferred over a link in a network path
from the third content source to the first content source.
The Examiner's Rejections
(1) Claims 1, 3, 4, 8, 9, 11, 16, 17, and 19 are rejected under
35 U.S.C. § I03(a) as being unpatentable over Costa (US 2004/0143850 Al;
published July 22, 2004) in view of Scholl (US 8,028,319 B2; issued Sept.
27, 2011). Final Act. 3-7.
(2) Claim 2 is rejected under 35 U.S.C. § I03(a) as being unpatentable
over Costa, Scholl, Allegrezza (US 2004/0103437 Al; published May 27,
2004), and Ryu (US 8,087,056 B2; published Dec. 27, 2011). Final Act. 7-
8.
(3) Claims 5 and 14 is rejected under 35 U.S.C. § I03(a) as being
unpatentable over Costa, Scholl, and Borst (US 2011/0107030 Al;
published May 5, 2011). Final Act. 8-9.
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(4) Claims 6, 7, 13, 15, and 20 are rejected under 35 U.S.C. § I03(a)
as being unpatentable over Costa, Scholl, and Kenner (US 5,956,716; issued
Sept. 21, 1999).3 Final Act. 9--11.
Appellants ' Contentions
(1) Appellants contend (App. Br. 6-12; Reply Br. 3---6) that the
Examiner erred in rejecting claims 1, 3, 4, 8, 9, 11, 16, 1 7, and 19 under
35 U.S.C. § 103(a). Specifically, Appellants contend neither the
combination of Costa and Scholl (App. Br. 6-7), nor Scholl alone (App. Br.
11-12) teaches or suggests limitations [Al] and/or [A2] as recited in claim
1. Appellants primarily present arguments as to method claim 1 (App. Br.
6-12; Reply Br. 3---6), and assert that claims 3, 4, 8, 9, 11, 16, 17, and 19
contain similar features as claim 1 and are, therefore, patentable for the same
reasons (App. Br. 12; Reply Br. 6). Therefore, we select claim 1 as
representative of the group of claims 1, 3, 4, 8, 9, 11, 16, 17, and 19 pursuant
to our authority under 37 C.F.R. § 4I.37(c)(l)(iv).
(2) With regard to claim 2 rejected over the combination of Costa,
Scholl, Allegrezza, and Ryu, Appellants contend (App. Br. 12-14; Reply Br.
6-8) neither the combination of applied references, nor Allegrezza or Ryu
taken individually, teaches or suggests limitation [B 1] and [B2] recited in
claim 2. More specifically, as to Allegrezza, Appellants contend Allegrezza
"merely describes that 'if the demand is less than a second threshold, ...
then at step 340 the content file is moved to a more remote server"' (App.
Br. 13), and thus fails to teach or suggest limitations [Bl] and [B2] recited in
claim 2. Appellants also contend that "Ryu merely mentions classifying
3 See supra note 2.
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stored content into high-capacity content and low-capacity content" (App.
Br. 14 ), and thus fails to teach or suggest limitations [B 1] and [B2].
(3) With regard to claims 5 and 14 rejected over the combination of
Costa, Scholl, and Borst, Appellants contend (App. Br. 15-16; Reply Br.
8-9) Borst fails to teach or suggest limitation [CJ as recited in claim 5.
More specifically, Appellants contend "Borst [paragraph 18] mentions
'some QoS metric reflecting the congestion levels on the various network
linkes"' (App. Br. 16), but does not teach or suggest limitation [CJ recited in
claim 5. Appellants primarily present arguments as to claim 5 (App. Br. 15-
16; Reply Br. 8-9), and assert that claim 14 contains similar features as
claim 5 and is, therefore, patentable for the same reasons as claim 5 (App.
Br. 16; Reply Br. 9). Therefore, we select claim 5 as representative of the
group of claims 5 and 14 pursuant to our authority under 3 7 C.F .R.
§ 4I.37(c)(l)(iv).
(4) Appellants do not present any arguments as to claims 6, 7, 13, 15,
and 20 rejected over the combination of Costa, Scholl, and Kenner.
Principal Issues on Appeal
Based on Appellants' arguments in the Appeal Brief (App. Br. 6-17)
and the Reply Brief (Reply Br. 3-9), the following principal issues are
presented on appeal:
(1) Did the Examiner err in rejecting claims 1-9, 11, 15-1 7, 19, and
20 as being unpatentable over the combination of Costa and Scholl because
the combination fails to teach or suggest limitations [Al] and/or [A2], as
recited in representative claim 1?
(2) Did the Examiner err in rejecting claim 2 as being obvious because
the combination of Allegrezza and Ryu, and thus the combination of Costa,
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Scholl, Allegrezza, and Ryu, fails to teach or suggest limitations [B 1] and
[B2], as recited in claim 2?
(3) Did the Examiner err in rejecting claims 5 and 14 as being obvious
because Borst, and thus the combination of Costa, Scholl, and Borst, fails to
teach or suggest limitation [CJ recited in representative claim 5?
ANALYSIS
We have reviewed the Examiner's rejections (Final Act. 3-11) in light
of Appellants' arguments in the Appeal Brief (App. Br. 6-16) and the Reply
Brief (Reply Br. 3-9) that the Examiner has erred. We have also reviewed
the Examiner's response to Appellants' arguments in the Appeal Brief (Ans.
3-5) in the Examiner's Answer. We disagree with Appellants' arguments.
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. 3--4 ( claim 1 ); Final
Act. 7-8 (claim 2); Final Act. 8-9 (claim 5)), as well as the Advisory Action
mailed December 18, 2017 (p. 2), and (2) the reasons set forth by the
Examiner in the Examiner's Answer (Ans. 3--4 (claim 1); Ans. 4 (claim 2);
Ans. 4--5 ( claim 5)) in response to Appellants' Appeal Brief. We concur
with the conclusions reached by the Examiner, and we provide the following
analysis for emphasis.
Claims 1, 3, 4, 8, 9, 11, 16, 17, and 19
Appellants' contentions that although Scholl makes a determination
"according to some rules" (App. Br. 11 ), and delivers content to a requestor
from "the closest distribution device" (Reply Br. 5), Scholl does not teach or
suggest limitation [ A2], including distributing content based on "costs"
which are "based on a network impact" ( claim 1 ), are not persuasive.
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When construing claim terminology (such as "costs" "based on a
network impact") during prosecution before the Office, claims are to be
given their broadest reasonable interpretation consistent with the
specification as it would be interpreted by one of ordinary skill in the art. In
re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004).
"Construing claims broadly during prosecution is not unfair to the applicant
... because the applicant has the opportunity to amend the claims to obtain
more precise claim coverage." Id. The Specification is the best guide to the
meaning of a disputed term. Vitronics Corp. v. Conceptronic, Inc., 90 F .3d
1576, 1582 (Fed. Cir. 1996).
Appellants' Specification (Spec. ,r,r 5, 6, 15, 16, 20, 22, 23, 30, 57, 67,
75, 81, 83, 85; Fig. 6, step 607; Abstract; original claim 1) explains content
source "costs" in terms of storage space (Spec. ,r,r 5, 57), "cost" (i.e.,
possibly monetary costs) (Spec. ,r,r 5, 6, 30), total network or fiber ring load
(Spec. ,r,r 15, 16), predicted data traffic (Spec. ,r,r 15, 16, 75, 84, 85) and/or
transfer time (Spec. ,r,r 67, 68), as well as the costs of maintaining and
upgrading servers (Spec. ,r 20) and/or the network penalty or cost of fetching
content from particular sources/servers (Spec. ,r,r 22, 23, 30, 81, 83-85, 88).
Appellants recognize that (i) "efficiency" and "access latency" are factors in
providing distributed content (Spec. ,r 5); (ii) and increasing the storage
space needed for content "impos[ es] higher costs" and reduces "scalability"
(Spec. ,r 5); and (iii) a lower number of VHOs 102 results in lower costs
(Spec. ,r 6).
Costa discloses distributing video content to different servers based on
"content redundancy," the "link distance" between the source and the
customer, and reducing/eliminating "network congestion" (i-f 92; see also
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Figs. 11, 12). Scholl discloses distributing video on demand content to users
from different servers ( col. 3, 11. 25-29) based on optimal proximity ( col. 3,
11. 47-50; col. 4, 11. 29-30), time, number of nodes between source and user,
and efficiency (col. 5, 11. 13-20) using rules (see col. 2, 1. 20-col. 5, 1. 20;
Fig. 2).
Inasmuch as Appellants' Specification defines and describes
distributing content in a video on demand system based on costs related to
network impact in terms of efficiency, latency, and/or storage capacity, we
are not persuaded the Examiner's claim interpretation is overly broad,
unreasonable, or inconsistent with the Specification. Therefore, we agree
with the Examiner's determination that claim 1 's recitation of distributing
content based on costs related to network impact: (i) in limitation [Al],
encompasses the teachings or suggestions of Costa; and (ii) in limitation
[A2], encompasses the teachings or suggestions of Scholl, and therefore we
find the combination of Costa and Scholl teaches or suggests the method of
distributed content management and fetching recited in claim 1 (see Final
Act. 3--4; Ans. 3--4).
We agree with the Examiner that the "costs" based on "network
impact" recited in claim 1 encompass the costs based on redundancy,
distance, or congestion taught by Costa, and/or the costs based on proximity,
time, and/or number of nodes taught by Scholl. Under the broadest
reasonable interpretation, 4 we conclude "costs" "based on a network impact"
4 Claim terms are to be given their broadest reasonable interpretation, as
understood by those of ordinary skill in the art and taking into account
whatever enlightenment may be had from the specification. In re Morris,
127 F.3d 1048, 1054 (Fed. Cir. 1997).
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can be costs in terms of load, storage space, time/latency, predicted traffic
(i.e., amount of data transmitted over time), or monetary costs (see Spec. ,r,r
5, 6, 15, 16, 20, 22, 23, 30, 57, 67, 75, 81, 83, and 85 discussed supra). We
also note Appellants have not cited to a definition of "costs" or "network
impact" in the Specification that would preclude the Examiner's broader
reading. 5
In view of the foregoing, we sustain the obviousness rejection of
representative claim 1 as well as claims 3, 4, 8, 9, 11, 16, 17, and 19 grouped
therewith as being obvious over the combination of Costa and Scholl.
Claim 2
With regard to claim 2 rejected over the combination of Costa, Scholl,
Allegrezza, and Ryu, Appellants contend (App. Br. 12-14; Reply Br. 6-8)
that neither the combination of applied references, nor Allegrezza or Ryu
taken individually, teaches or suggests limitations [B 1] ( determining there is
not sufficient memory to cache the content) and [B2] (selecting item(s) to
evict from the cache) recited in claim 2. More specifically, as to Allegrezza,
Appellants contend Allegrezza "merely describes that 'if the demand is less
than a second threshold, ... then at step 340 the content file is moved to a
5 Any special meaning assigned to a term "must be sufficiently clear in the
specification that any departure from common usage would be so understood
by a person of experience in the field of the invention." Multiform
Desiccants, Inc. v. Medzam Ltd., 133 F.3d 1473, 1477 (Fed. Cir. 1998); see
also Helmsderfer v. Bobrick Washroom Equip., Inc., 527 F.3d 1379, 1381
(Fed. Cir. 2008) ("A patentee may act as its own lexicographer and assign to
a term a unique definition that is different from its ordinary and customary
meaning; however, a patentee must clearly express that intent in the written
description." (citing Phillips v. AWHCorp., 415 F.3d 1303, 1316 (Fed. Cir.
2005))).
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more remote server"' (App. Br. 13), and thus fails to teach or suggest
limitations [B 1] and [B2] recited in claim 2. Appellants also contend that
"Ryu merely mentions classifying stored content into high-capacity content
and low-capacity content" (App. Br. 14), and thus fails to teach or suggest
limitations [B 1] and [B2] recited in claim 2.
We note that each reference cited by the Examiner must be read, not
in isolation, but for what it fairly teaches in combination with the prior art as
a whole. See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986)
(finding one cannot show non-obviousness by attacking references
individually where the rejections are based on combinations of references).
In this light, Appellants' arguments presented as to the shortcomings
in the teachings of Allegrezza and Ryu individually (see App. Br. 12-15;
Reply Br. 6-8) are not persuasive inasmuch as the Examiner relies on a
properly made combination of Costa, Scholl, Allegrezza, and Ryu to support
the conclusion of obviousness of the subject matter of claim 2. For example,
Appellants' argument (App. Br. 14) that Ryu only mentions classifying
stored content into high-capacity content and low-capacity content, and thus
does not teach or suggest all of limitations [B 1] and [B2], is not persuasive
inasmuch as the Examiner only relies upon Ryu as teaching a network
penalty being based on the size of the content and items as recited in
limitation [B2].
Appellants have not rebutted or otherwise shown the Examiner's
explanation of the combination of the collective teachings and suggestions
of the applied references made in the Final Rejection (see Final Act. 7-8)
and in response to the Appellants' arguments in the Appeal Brief (see Ans. 4
regarding the references individually or in pairs) to be in error. Appellants'
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Reply Brief does not persuade us otherwise. Notably, the Examiner relies
on paragraphs 7, 52---63, and 67 and steps 310 and 315 in Figure 3 of
Allegrezza as teaching or suggesting the portions of limitations [B 1] and
[B2] not taught or suggested by Ryu. Appellants' response to the
Examiner's findings in this regard are conclusory, fail to specifically address
the Examiner's findings regarding paragraphs 7, 52-63, and 67 in detail, and
are thus unpersuasive. 6 Notably, we find that the concept of evicting items
from a cache when there is insufficient memory in order to (i) minimize a
network penalty, (ii) reduce the cost of storage, and/or (iii) reduce response
times, is disclosed in paragraphs 7 and 67 of Allegrezza. This is not
disputed by Appellants in the briefs.
The combined teachings and suggestions of Allegrezza and Ryu teach
or suggest determining whether there is sufficient memory to cache content
and minimizing the network penalty associated with caching content, as
recited in claim 2. In view of the above, we agree with the Examiner (Final
Act. 7----8; Ans. 4) that Costa and Scholl, when modified with Allegrezza and
Ryu, teach or suggest "determining that there is not sufficient memory to
cache the content" (limitation [Bl]), and "selecting one or more items to
evict from a cache" at a content source "to make available sufficient
memory for the content" while minimizing the network penalty associated
with the eviction of the items, "wherein the network penalty is based on
sizes of the content and the items, and numbers of requests expected to be
6 Appellants contend in the Reply Brief that "storing content in a server to
minimize delay times or maximize the storage capacity efficiency as taught
in Allegrezza does not teach or suggest" limitations [B 1] and [B2] (Reply
Br. 6).
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received for the content and the items" (limitation [B2]), as recited in claim
2.
In view of the foregoing, we sustain the obviousness rejection of
claim 2 as being obvious over the combination of Costa, Scholl, Allegrezza,
and Ryu.
Claims 5 and 14
With regard to claim 5 rejected over the combination of Costa, Scholl,
and Borst, Appellants contend "Borst [paragraph 18] mentions 'some QoS
metric reflecting the congestion levels on the various network linkes"' (App.
Br. 16), but does not teach or suggest limitation [CJ (a content source cost is
determined based on a number of items simultaneously transferred over a
link in a network path) recited in claim 5.
Borst discloses quality of service (QoS) metrics and algorithms used
to manage distribution of content to "maximize the traffic volume" and
"minimize the bandwidth cost" which "need not be actual monetary
expenses, but could also represent some QoS metric reflecting the
congestion levels on the various network links, like link weights in Open
Shortest Path First (OSPF) for example" (i-f 18).
Quality of service metrics are "[u]sed to quantitatively measure the
quality of service of a network and the network services that are often
considered are error rates, bandwidth, throughput, transmission delay,
availability, jitter, etc.," lgi-Global.com, What is QoS Metrics,
https://www.igi-global.com/dictionary/g_os-metrics/48394 (last visited Feb.
11, 2019). Thus, QoS metrics concern storage capacity and/or the amount of
data sent over time (traffic, latency, throughput, etc.), which are
encompassed by the ''costs" "based on a network impact" recited in claim 1,
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and "costs" "based on a number of items simultaneously transfened" as
further recited in claim 5.
In this light, we agree with the Examiner (Final Act 8-----9; Ans. 4----5)
that Costa and Scholl, when modified with Borst's QoS metrics and
algorithms, teach or suggest limitation [CJ recited in claim 5, including
detennin ing a content source cost "based on a number of items
simultaneously transferred over a link in a network path."
In view of the foregoing, we sustain the obviousness rejection of
representative claim 5, as well as claim 14 grouped therewith, as being
obvious over the combination of Costa, Scholl, and Borst.
Claims 6, 7, 13, 15, and 20
Based on Appellants' failure to address the Examiner's prima facie
case of obviousness, Appellants have failed to show that the Examiner erred
in determining that the combination of Costa, Scholl, and Kenner teaches or
suggests the method, computer-readable medium, and system recited in
claims 6, 7, 13, 15, and 20. Accordingly, we sustain the Examiner's
obviousness rejection of these claims proforma. See 37 C.F.R.
§ 4I.37(c)(l)(iv) (requiring a statement in the briefs as to each ground of
rejection presented by Appellant for review and that arguments not
presented in the briefs by Appellant will be refused consideration).
CONCLUSION
The Examiner did not err in rejecting claims 1-9, 11, 14-17, 19, and
20 as being unpatentable under 35 U.S.C. § 103(a).
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DECISION
The Examiner's rejections of claims 1-9, 11, 14--17, 19, and 20 are
affirmed.
No time period for taking any subsequent action in connection with
this appeal maybe extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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