Ex Parte Carlucci et al

Patent Trial and Appeal Board

Sep 13, 2016

11013671 (P.T.A.B. Sep. 13, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
111013,671 12/15/2004
27299 7590 09/14/2016
GAZDZINSKI & ASSOCIATES, PC
16644 WEST BERNARDO DRIVE
SUITE 201
SAN DIEGO, CA 92127
FIRST NAMED INVENTOR
John B. Carlucci
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.
TWAR.OllA 3817
EXAMINER
TAYLOR,JOSHUAD
ART UNIT PAPER NUMBER
2426
MAILDATE DELIVERY MODE
09/14/2016 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 JOHN B. CARLUCCI, WILLIAM HELMS, and
LOUIS D. WILLIAMSON
Appeal2015-000302
Application 11/013,671
Technology Center 2400
Before BRUCE R. WINSOR, JON M. JURGOV AN, and
AMBER L. HAGY, Administrative Patent Judges.
WINSOR, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 appeal under 35 U.S.C. § 134(a) from the final rejection
of claims 1, 2, 22, 39--41, 43--45, 48-53, and 60-65, which constitute all the
claims pending in this application. We have jurisdiction under 35 U.S.C.
§ 6(b). Claims 3-21, 23-38, 42, 46--47, and 54--59 are cancelled. App. Br.
1:33.
We affirm-in-part.
1 The real party in interest identified by Appellants is Time Warner Cable
Enterprises LLC. App. Br. 1:20-21.
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Application 11/013,671
STATEMENT OF THE CASE
Appellants' disclosed invention "relates generally to the field of
digital content distribution." Spec. 1: 15. More particularly "the invention
relates to ... creat[ing], transmit[ting], receiv[ing] and decod[ing] wideband
transport streams comprising one or more service levels, such as standard
definition (SD) and high definition (HD) television programs." Id. at 1:16-
18. Claim 1, which is illustrative, reads as follows:
1. A content distribution system for efficient
transmission of a plurality of High Definition (HD) programs
over a content distribution network, comprising:
first apparatus configured to receive said plurality of HD
programs;
second apparatus operatively coupled to said first
apparatus and configured to process said plurality of HD
programs based on a plurality of operator-controlled rules, via a
creation of a multiple-input multiple-output multiplex of at least
portions of said plurality of HD programs; and
transmission apparatus configured to transmit each of said
processed HD programs across a plurality of radio frequency
(RF) channels, said transmission apparatus comprising a
plurality of modulators;
wherein said multiple-input multiple-output multiplex is
rendered more efficient based at least in part on use of said
plurality of HD programs and said transmission of different
portions of individual ones of said HD programs across different
ones of said plurality of RF channels; and
wherein at least one of said plurality of operator-controlled
rules causes transmission of selected ones of said plurality of HD
programs to be constrained to a smaller subset of said different
ones of said plurality of RF channels based at least in part on a
detection of an error in at least one of transmission or reception
of said plurality of HD programs, said transmission comprising
transmission of said constrained and non-constrained
programming across said plurality of RF channels.
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The Examiner relies on the following prior art in rejecting the claims:
Myers US 2002/0146023 Al Oct. 10, 2002
Elmaliach et al. US 2002/0194372 Al Dec. 19, 2002
("Elmaliach")
Francesca et al2. US 2003/0083054 Al May 1, 2003
("Francesca")
Saxena et al. US 2003/0097476 Al May 22, 2003
("Saxena")
Weaver et al. US 2003/0112372 Al June 19, 2003
("Weaver")
Harris et al. US 2003/0208612 Al Nov. 6, 2003
("Harris")
Coffin, III US 2003/0220072 Al Nov. 27, 2003
("Coffin")
Hwang et al. US 2005/0025039 Al Feb.3,2005
("Hwang")
Raman et al. US 6,910,078 Bl June 21, 2005
("Raman")
J alali et al. US 2006/0093067 Al May4, 2006
(" J alali ")
Rodriguez et al. US 7,373,650 Bl May 13, 2008
("Rodriguez")
Claims 1, 2, and 43--45 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Jalali, Francesca, and Weaver, and, in the
alternative, over Jalali, Francesca, Weaver, and Hwang. See Final Act. 2-8.
2 The Examiner identifies the corresponding patent issued to Francesca et al.
(US 7,353,004 B2; iss. April 1, 2008) as having drawings that are easier to
understand. Final Act. 2.
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Claims 22 and 40 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Jalali, Francesca, and Saxena and, in the alternative, over
Jalali, Francesca, Coffin, and Saxena. See Final Act. 8-15.
Claims 39 and 41 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Jalali, Francesca, Saxena, and Weaver and, in the
alternative, over Jalali, Francesca, Coffin, Saxena, and Weaver. See Final
Act. 15-18.
Claim 48 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Jalali, Francesca, Weaver, and Rodriguez. See Final Act.
18-20.
Claims 49-51 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Jalali and Francesca. See Final Act. 21-25.
Claim 52 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Jalali, Francesca, and Myers. See Final Act. 25-26.
Claim 53 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Jalali, Francesca, and Elmaliach. See Final Act. 26-27.
Claims 60 and 61 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Francesca, Weaver, and Rodriguez. See Final Act. 27-29.
Claim 62 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Francesca, Weaver, Rodriguez, and Elmaliach. See Final
Act. 29.
Claim 63 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Jalali, Francesca, Weaver, and Saxena. See Final Act. 30-
33.
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Claim 64 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Jalali, Francesca, Coffin, and Harris. See Final Act. 33-
36.
Claim 65 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Jalali, Francesca, and Raman. See Final Act. 36-39.
Rather than repeat the arguments here, we refer to the Briefs ("App.
Br." filed May 2, 2014; "Reply Br." filed Sept. 29, 2014), and the
Specification ("Spec." filed Dec. 15, 2004, amended July 30, 2008)3 for the
positions of Appellants and the Final Office Action ("Final Act." mailed
Aug. 23, 2013) and Examiner's Answer ("Ans." mailed July 28, 2014) for
the reasoning, findings, and conclusions of the Examiner. Only those
arguments actually made by Appellants have been considered in this
decision. Arguments that Appellants did not make in the Briefs have not
been considered and are deemed to be waived. See 37 C.F.R.
§ 41.37(c)(l)(iv) (2013).
CLAIM CONSTRUCTION
Issue
Appellants' contentions present the following issue: Does the
Examiner err in not treating as non-limiting various recitations of claims 1,
22, and 49?
3 In the Record, the Examiner and Appellants refer to Appellants'
Specification using the paragraph numbering of Appellants' published patent
application, Carlucci et al. (US 2006/0130113 Al; publ. June 15, 2006).
See, e.g., Ans. 6-7; Reply Br. 6:4--5. We do the same.
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The Examiner identifies
Analysis
wherein at least one of said plurality of operator-controlled
rules causes transmission of selected ones of said plurality of HD
programs to be constrained to a smaller subset of said different
ones of said plurality of RF channels based at least in part on a
detection of an error in at least one of transmission or reception
of said plurality of HD programs, said transmission comprising
transmission of said constrained and non-constrained
programming across said plurality of RF channels
(the "RF channel error limitation"), as not limiting claim 1. See Final Act.
4--5, 9-10, 12-13; Ans. 3--4, 12-13. Similarly, the Examiner identifies
"wherein said preferential statistical combination causes said certain ones of
said multiple packets to be pulled out of a plurality of queues based on a
quantity of total packets in individual ones of said plurality of queues" (the
"plurality of queues limitation"), as not limiting claim 22. The Examiner
also identifies
wherein said processed programs are transmitted as a
single multi-program transport stream comprising a first program
having packets thereof which are respectively transmitted via
multiple ones of said RF channels and a second program having
packets thereof which are respectively transmitted via only one
of said RF channels; and
wherein said transmission apparatus is further configured
to transmit information that correlates said packets of said first
program to said respective RF channels over which said packets
are transmitted in order to facilitate reassembly of said first
program therefrom[]
(the "correlation information limitation"), as not limiting claim 49. The
Examiner explains as follows:
[T]he clause in question is ... a "configured to" clause. For
example, if a claim stated: "A set-top box configured to perform
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a, b and c," then all that would be needed to reject such a claim
would be a set-top box. The reference would not need to disclose
wherein said set-top box were capable of performing a, b and c.
This is because such a reference would have disclosed the
structure of the claim (a set-top box), and such a set-top box
could be configured to perform a, b and c without changing the
structure of said set-top box. Thus, in this instance, the
"configured to" clause is not further limiting.
Conversely, if a claim stated: "A set-top box containing a
processor, whereby said processor performs a, band c," then this
claim contains a "whereby" clause, and thus any reference used
to reject such a claim must disclose a set-top box capable of
performing a, b and c.
Ans. 3--4 (discussing claim 1); see also Ans. 13 (discussing claim 22), 21-22
(discussing claim 49).
Appellants contend the Examiner errs in failing to treat the identified
recitations as limiting the claims. See App. Br. 8:5-9:2, 12:21--44, 16:36-
17:23; Reply Br. 3:9--4:40, 9:27-10:39, 15: 11-16:27. We agree with
Appellants for the reasons explained by Appellants. See id. For example,
the Examiner's reasoning fails at least because many of the clauses
identified by the Examiner as not limiting the claims do not, in fact, include
the phrase "configured to." That said, however, even where the clauses refer
back to clauses that do recite "configured to" or where the phrase
"configured to" is included in the clauses found by the Examiner to be non-
limiting, we still disagree that the identified language can be treated as non-
limiting.
Courts have generally interpreted "configured to" more narrowly than
simply "capable of." See Typhoon Touch Tech., Inc. v. Dell, Inc., 659 F.3d
1376, 1380 (Fed. Cir. 2011) (construing "memory ... configured to" as
"memory that must perform the recited function"); see also Aspex Eyewear,
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Inc. v. Marchan A'yewear, Inc., 672 F.3d 1335, 1349 (Fed. Cir. 2012)
(interpreting "adapted to" and construing it in the "narrow" sense of
"configured to" in contrast to the "broader" sense as "capable of'); Sta-Rite
Indus., LLC v. ITT Corp., 682 F.Supp.2d 738, 753 (E.D.Tex. 2010)
(construing "adapted to," in context, to mean "designed or configured to,"
not "having the capacity to"); Boston Scientific Corp. v. Cordis Corp., No. C
02----01474 J\V, 2006 WL 3782840, at *1-2 (N.D.Cal. Dec. 20, 2006)
(construing "adapted to," in light of patent as a whole, to mean "configured
to," not "capable of'). Accordingly, we construe "configured to" to mean
that the apparatus must have circuitry, programming, or other structure that
actually performs the recited functions when the recited conditions are met.
That said, however, in each case where the Examiner concluded
certain language of the claims was non-limiting, in the interests of compact
prosecution, the Examiner entered an alternative ground of rejection citing
additional references, i.e., Hwang (claim 1) and Coffin (claim 22), or made
additional findings (claim 49), directed to the claim language the Examiner
concluded was non-limiting. See Ans. 4, 22, 45. As to claims 1, 22, and 49,
and claims dependent therefrom, we look to the alternative grounds of
rejection and additional findings, discussed infra, in which the Examiner
cites prior art as teaching or suggesting the RF channel error limitation of
claim 1, the plurality of queues limitation of claim 22 and the correlation
information limitation of claim 49 (see Final Act. 2--4, 5-7, 11-14, 24--25).
As to those grounds of rejection to which the additional findings do
not apply, we cannot sustain the rejections. Claims 2 and 43--45 depend
from claim 1 and claims 39--41 depend from claim 22. Accordingly, we do
not sustain the rejections under 35 U.S.C. § 103(a) of (I) claims 1, 2, and
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43--45 over Jalali, Francesca, and Weaver (without Hwang); (2) claims 22
and 40 over Jalali, Francesca, and Saxena (without Coffin); and (3) claims
39 and 41 over Jalali, Francesca, Saxena, and Weaver (without Coffin).
INDEPENDENT CLAIM 1 AND CLAIMS DEPENDENT THEREFROM
Issue
The dispositive issue, inter alia, presented by Appellants' contentions
is as follows: Does the Examiner err in finding that the combination of
Jalali, Francesca, Weaver, and Hwang, teaches or suggests the RF channel
error limitation recited in claim 1?
Analysis
The Examiner finds that Hwang' s teaching of selecting subchannels
based on received channel quality information (CQI), when combined with
Jalali, Francesca, and Weaver, teaches or suggests
selected ones of said plurality of HD programs to be constrained
to a smaller subset of said different ones of said plurality of RF
channels based at least in part on a detection of an error in at least
one of transmission or reception of said plurality of HD
programs,
as recited in the channel error limitation of claim 1. Final Act. 6-7 (citing
Hwang i-f 46). The Examiner explains as follows:
[The] Examiner is not contending that the pilot signal in Hwang
corresponds generally to an HD program. Rather, [the] Examiner
is stating that a subband having the best quality is selected by
analyzing the received CQI, which teaches that the quality of an
element of a transmission network (the CQI is representative of
the quality of the sub band) can be used to determine which
elements of the transmission network will be used for
transmission.
Ans. 8.
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Appellants contend, inter alia, as follows:
[Hwang's] CQI feedback is determined from the pilot signal. A
pilot signal is well known in the relevant art to be a preset
sequence which is "known" between the BS (base station) and
the MSS. A pilot signal is a preset sequence, and is devoid of
data content altogether; hence one cannot reasonably assert that
the pilot signal in Hwang corresponds generally to an HD
program. There is a salient difference between receiving a pilot
signal that is not correct (as occurs in Hwang), and detecting an
error in at least one of transmission or reception of a plurality of
(content) programs (as recited in Applicant's Claim 1).
App. Br. 10:34--40 (referring to Hwang i-f 120).
We agree with Appellants. We do not agree that a pilot signal is
"devoid of data content altogether" (App. Br. 10:36-37), as the preset
sequence is itself data content. However, we do agree that one of ordinary
skill in the art would understand a pilot signal to be devoid of data analogous
to content program data. Therefore, although Hwang's CQI feedback may
be indicative of the quality of the associated subchannels and therefore
indicative of the probability of an error occurring in the transmission or
reception of data on the associated subchannels, it does not indicate the
occurrence of such an error. Therefore, Hwang cannot be said to teach or
suggest selecting subchannels based on the detection of an error in data
transmitted or received on said subchannels. In other words, Hwang cannot
be said to teach of suggest
selected ones of said plurality of HD programs to be constrained
to a smaller subset of said different ones of said plurality of RF
channels based at least in part on a detection of an error in at least
one of transmission or reception of said plurality of HD
programs,
as recited in the channel error limitation of claim 1.
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Appellants have demonstrated error in the rejection of claim 1 over
Jalali, Francesca, Weaver, and Hwang. Accordingly we do not sustain the
rejection over Jalali, Francesca, Weaver, and Hwang of (I) claim 1; and
(2) claims 2 and 43--454, which depend from claim 1.
INDEPENDENT CLAIM 22 AND CLAIMS DEPENDENT THEREFROM
Issue
Appellants' contentions present the following issue: Does the
Examiner err in finding that the combination of Jalali, Francesca, Coffin,
and Saxena teaches or suggests "wherein said one or more client devices are
configured to inspect said multiple packets during a demodulation process
for embedded timestamps in a header field thereof in order to compensate
for a degree of jitter associated therewith" (the "header inspection
limitation"), as recited in claim 22?
Analysis
The Examiner finds Saxena, when combined with Jalali, Francesca,
and Coffin, teaches the header inspection limitation. Final Act. 10-11
(citing Saxena i-f 23). The Examiner explains
In the specification of Saxena, header information such as that
described in figure 2 and paragraph [0023] is sent over the
network 100 to base 200 where it is processed by context
processor 2000. Saxena's abstract states that "[t]he base acts as
an intermediate nodal point to establish call contexts with the
endpoints on the traffic channels, wherein the processing of the
header of the data packets is terminated at the base (emphasis
added)." Thus, it is the base 200 of Saxena that is to "inspect said
multiple packets during a demodulation process for embedded
4 We need not reach Appellants' separate arguments regarding claims 44 and
45. See App. Br. 11 :4--12:2.
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timestamps in a header field thereof in order to compensate for a
degree of jitter associated therewith." Therefore, Saxena has
appropriately disclosed what Examiner used Saxena to teach:
that it was well known in the art at the time of the invention to
use timestamps in a header field to compensate for jitter. The
packet structures containing header information as disclosed by
Jalali (Fig. 8B, para. [0166]) are processed at the client devices,
and thus the obvious modification of Jalali and Francesca in view
of Saxena would result in the jitter information included in the
header being processed at the client devices.
Ans. 14--15 (bracketed paragraph numbers in original).
Appellants contend as follows:
[Saxena at paragraph 23] expressly states that the RTP timestamp
field is not required to be transmitted over the air link (to client
devices) for channel processing. While Saxena appears to teach
that the RTP timestamp field is used by the base 200 for e.g.,
jitter calculation, Saxena is wholly silent as to client devices that
inspect packets during a demodulation process for embedded
timestamps. Moreover, since the timestamps are not required to
be transmitted over the airlink, one may further assert that the
client devices of Saxena do not necessarily receive timestamps
at all.
App. Br. 13: 18-24; see also id. at 14: 17-21; Reply Br. 11 :20-41, 12:30-36.
We agree with the Examiner for the reasons stated by the Examiner.
"[T]he test [for obviousness] is what the combined teachings of the
references would have suggested to those of ordinary skill in the art."
In re Keller, 642 F.2d413, 425(CCPA1981). "[O]ne cannot shownon-
obviousness by attacking references individually where, as here, the
rejections are based on combinations of references." Id. at 426. Jalali
teaches transmitting (Jalali i-f 104, Fig. 3 (items 116a-116t)) to client devices
(not shown) using packet structures having headers (Jalali i-f 116, Fig. 8B).
Saxena teaches receiving packets at base station 200 having headers, i.e.,
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packets sent over network 100 from terminals 102 and 104 to base station
200. Saxena Fig. 1. Saxena further teaches using timestamp data in packet
headers to calculate jitter in the received packet stream. Saxena i-f 23.
Appellants do not address the Examiner's finding that it would have been
obvious to a person of ordinary skill in the art at the time of the invention to
apply Saxena' s jitter calculation on packets received at Saxena' s base station
200 to packets received by Jalali's client devices. Therefore, Appellants do
not demonstrate error in the Examiner's finding that Saxena, when combined
with Jalali, Francesca, and Coffin, teaches or suggests the header inspection
limitation of claim 22.
Appellants have not demonstrated error in the rejection of claim 22
over Jalali, Francesca, Coffin, and Saxena. Claims 39--41 depend from
claim 22 and are not separately argued with particularity. See App. Br.
14:28--42. Accordingly, we sustain the rejections of ( 1) claims 22 and 40
over Jalali, Francesca, Coffin, and Saxena; and (2) claims 39 and 41 over
Jalali, Francesca, Coffin, Saxena, and Weaver.
INDEPENDENT CLAIM 48
Issue
Does the Examiner err in finding the combination of Jalali, Francesca,
Weaver, and Rodriguez teaches or suggests "deliver said plurality of RF
channels to a plurality of user devices, said delivery comprising information
that maps said portions of individual ones of said HD, SD and other data
programs to said different ones of said plurality of RF channels" (the
"mapping information limitation"), as recited in claim 48?
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Analysis
The Examiner finds Francesca teaches the mapping information
limitation. Final Act. 19-20 (citing Francesca i-fi-f 17, 46-47, Fig. 7); see also
Ans. 17-20 (additionally citing Francesca i159). The Examiner explains as
follows:
In paragraph [0059], Francesca discloses that "the CPE 220
includes a multi-channel demodulator 210 which receives RF
signals from one or more RF channels and selectively
demodulates the RF signals from one or more of those RF
channels to retrieve the corresponding content programs
(emphasis added)." . . . The receiving devices do not have to
search every received RF channel, as Francesca clearly states that
RF signals are selectively demodulated. Therefore, it would have
been obvious to one of ordinary skill in the art at the time of the
invention that the combined teaching of Jalali and Francesca
disclosed the concept that information would be delivered which
would map portions of individual data programs to the different
RF channels, such that the CPE would be able to selectively
demodulate the RF signals.
Ans. 19-20.
Appellants contend Francesca does not explicitly teach the mapping
information limitation, and that there are a number of mechanisms by which
Francesca could selectively demodulate the RF signals to retrieve content
programs. See Reply Br. 14:2--40; App. Br. 15:42-16:21. Appellants
propose one such mechanism: "[T]he receiving devices in Francesca may
instead search every received RF channel for header portions indicating a
particular program and reconstruct the programs entirely (without being
provided any information from the entity which partitioned and multiplexed
the programs)." App. Br. 16: 17-19. Thus, Appellants contend, the
Examiner has improperly found that Francesca inherently discloses the
mapping information limitation. Reply Br. 14:7-9, 38--40.
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We agree with Appellants for the reasons stated by Appellants. The
doctrine of inherency may be applied in the context of obviousness. See In
re Huai-Hung Kao, 639 F.3d 1057, 1070 (Fed. Cir. 2011). The express,
implicit, and inherent disclosures of a prior art reference may be relied upon
in the rejection of claims under 35 U.S.C. §§ 102 or 103. See In re Napier,
55 F.3d 610, 613 (Fed. Cir. 1995). As with anticipation, evidence must
establish that the missing descriptive matter is necessarily present in the
thing described in the reference. See In re Rijckaert, 9 F .2d 1531, 1534
(Fed. Cir. 1993). To support a finding of inherency, the Examiner must
establish that the element not expressly disclosed is necessarily present in
the reference. See Rosco, Inc. v. Mirror Lite Co., 304 F.3d 1373, 1380 (Fed.
Cir. 2002). The Examiner may not, because of doubt that the invention is
patentable, resort to speculation, unfounded assumption or hindsight
reconstruction to supply deficiencies in the factual basis for the rejection.
See In re Warner, 379 F.2d 1011, 1017 (CCPA 1967).
We agree with the Examiner that in order for Francesca to "selectively
demodulate[] the RF signals from one or more of th[ e] RF channels to
retrieve the corresponding content programs" (Francesca ,-r 59), some
information necessarily must be delivered with the RF channels. However,
as pointed out by Appellants, Francesca does not teach that the information
"maps said portions of individual ones of said HD, SD and other data
programs to said different ones of said plurality of RF channels," as recited
in the mapping information limitation of claim 48, and there are, as
demonstrated by Appellants, other forms that information may take (see
App. Br. 16: 17-19). On this record, the specific information recited in the
mapping information limitation can only be discerned by using the
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Appellants' invention as a roadmap, i.e., by hindsight. Therefore,
Appellants have demonstrated error in the Examiner's finding that the
combination of Jalali, Francesca, Weaver, and Rodriguez teaches the
mapping information limitation.
Appellants have demonstrated error in the rejection of claim 48.
Accordingly, we do not sustain the rejection of claim 48 over Jalali,
Francesca, Weaver, and Rodriguez.
INDEPENDENT CLAIM 49 AND CLAIMS DEPENDENT THEREFROM
Issue
Appellants' contentions present the following dispositive issue, inter
alia: Does the Examiner err in finding the combination of Jalali and
Francesca teaches or suggests "wherein said transmission apparatus is
further configured to transmit information that correlates said packets of said
first program to said respective RF channels over which said packets are
transmitted in order to facilitate reassembly of said first program therefrom"
(the "correlation information limitation"), as recited in claim 49?
Analysis
The correlation information limitation of claim 49 is similar to the
mapping information limitation of claim 48. Compare App. Br. 28:22-24
with id. at 28:3-5. The Examiner's findings regarding the correlation
information limitation of claim 49 are substantially similar to those for the
mapping information limitation of claim 48. Compare Final Act. 21-22
with id. at 19. Appellants' arguments regarding the correlation information
limitation of claim 49 are substantially similar to those for the mapping
information limitation of claim 48. Compare Reply Br. 17:26-18: 17 with id.
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at 14:2--40. We agree with Appellants' contentions for the reasons set forth
supra regarding claim 48. Accordingly, Appellants have demonstrated error
in the Examiner's finding that Francesca, when combined with Jalali,
teaches or suggests the correlation information limitation.
Appellants have demonstrated error in the rejection of claim 49.
Claims 50-53 depend from claim 49. Accordingly, we do not sustain the
rejections of (I) claims 49-51 over Jalali and Francesca; (2) claim 52 over
Jalali, Francesca, and Myers; and (3) claim 53 over Jalali, Francesca, and
Elmaliach.
INDEPENDENT CLAIM 60 AND CLAIMS DEPENDENT THEREFROM
Issue
Appellants' contentions present the following issue: Does the
Examiner err in finding the combination of Francesca, Weaver, and
Rodriguez teaches or suggests "and delivering said plurality of RF channels
to a plurality of user devices, said delivery including information mapping
said portions of individual ones of said HD and said SD programs to said
different ones of said plurality of RF channels" (the "delivering mapping
information limitation"), as recited in claim 60?
Analysis
The delivering mapping information limitation of claim 60 is similar
to the mapping information limitation of claim 48. Compare App. Br.
29: 18-20 with id. at 28:3-5. The Examiner's findings regarding the
delivering mapping information limitation of claim 60 are substantially
similar to those for the mapping information limitation of claim 48.
Compare Final Act. 27-28 with id. at 19. Appellants' arguments regarding
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the delivering mapping information limitation of claim 60 are substantially
similar to those for the mapping information limitation of claim 48.
Compare Reply Br. 19:21-20:2 with id. at 14:2--40. We agree with
Appellants' contentions for the reasons set forth supra regarding claim 48.
Accordingly, Appellants have demonstrated error in the Examiner's finding
that Francesca, when combined with Weaver and Rodriguez, teaches or
suggests the delivering mapping information limitation.
Appellants have demonstrated error in the rejection of claim 60.
Claims 61 and 62 depend from claim 60. Accordingly, we do not sustain the
rejections of (1) claims 60 and 61 over Francesca, Weaver, and Rodriguez;
and (2) claim 62 over Francesca, Weaver, Rodriguez, and Elmaliach.
INDEPENDENT CLAIM 63
Issues
Appellants' contentions present the following issues:
Does the Examiner err in finding that the combination of Jalali,
Francesca, Weaver, and Saxena teaches or suggests "transmit selected ones
of said plurality of HD programs on a constrained smaller subset of said
different ones of said plurality of RF channels" (the "subset of channels
limitation"), as recited in claim 63?
Does the Examiner err in finding that the combination of Jalali,
Francesca, Weaver, and Saxena teaches or suggests "recreation [of
programs] comprising compensating for a jitter associated with said portions
using at least embedded timestamps in a header field thereof' (the
"embedded timestamp limitation"), as recited in claim 63?
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Analysis
Subset of Channels Limitation
The Examiner finds Francesca teaches the subset of channels
limitation. Final Act. 32 (citing Francesca i-f 36; Spec. i-f 88); see also Final
Act. 35 (citing Francesca i-f 17); Ans. 30-31 (additionally citing Francesca
,-r 39).
Appellants contend as follows:
Given the nature of the dedicated RF channel in Francesca, one
cannot reasonably assert that any particular programs are
selected (from among all of the programs received at the first
apparatus) to be constrained. Instead, the reference clearly
requires all requests from a legacy devices to be processed onto
the dedicated RF channel.
App. Br. 21:11-15.
The Examiner explains that "the programs to be constrained will be
selected based on the fact that these are the programs requested by the
legacy equipment." Ans. 30. We agree with the Examiner. 5 Claim 63 does
not recite any steps or criteria for selecting the recited "selected ones of said
plurality of HD programs." Therefore, a program that is the subject of a
request from a legacy device, as posited by Appellants (see App. Br. 21:13-
15), is encompassed within the broadest reasonable interpretation of
"selected ones of said plurality of ... programs." We note that the Examiner
5 We note, in passing, that given the Examiner's detailed findings and
conclusions, we view the Examiner's statement that "Appellant is giving too
much weight to the claim language" (Ans. 30) to be a paraphrasing of the
established principle that the comparison of claim language to prior art
references is not an ipsissimis verb is analysis. See In re Bond, 910 F .2d 831,
832 (Fed. Cir. 1990).
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relies on Weaver to teach that the programs may be HD programs. See Final
Act. 32-33 (citing Weaver i134).
Appellants further contend as follows
As a whole, Claim 63 recites that the individual ones of
the plurality of programs are distributed across different ones of
RF channels, but that selected ones of these are constrained to a
subset of the different ones of the RF channels. Hence, the subset
of the different ones of the RF channels of Claim 63 must include
at least two RF channels in order to meet the claimed feature of
the programs being distributed across "different ones" of RF
channels.
App. Br. 21 :24--28.
The Examiner explains as follows:
[I]n paragraph [0036], Francesca discloses that "[i]n addition,
optionally, one or more of the multiple RF channels may be
dedicated for transmitting content programs to specific customer
premises equipment. This may be desirable where the customer
premises equipment is only equipped to handle signals received
from an RF channel having a particular frequency. For example,
certain existing or legacy customer premises equipment may
only be capable of handling signals from an [sic] 6-MHz RF
channel (emphasis added)." This is in line with the disclosure of
Appellant's specification, which states in paragraph [0088] that
"[i]n another exemplary embodiment, packets from an input
program can be constrained to appear on a smaller subset of the
M outputs (e.g.[,] only one or two outputs). One benefit of such
a constraint is to create transport streams wherein some programs
are simultaneously decodable by both legacy (i.e., non-
wideband) CPE and the wideband CPE of the present invention
(emphasis added)."
Ans. 30-31. We agree with the Examiner. Construing claim 63 in light of
Appellants' Specification (see Spec. i1 88), it is clear that "subset"
encompasses a single instance, so that a subset of the channels can include
only a single channel or a plurality of channels. Furthermore, although the
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claim recites spread transmission of each processed HD program across
different ones of said plurality of RF channels, the claim does not recite
spread transmission of the selected ones of the HD programs. Nor does the
claim preclude the selected programs from also being transmitted separately
as one of the programs to be transmitted by spread transmission.
Accordingly, we do not agree with Appellants' proposed claim construction
requiring the smaller subset of RF channels to comprise at least two
channels (see App. Br. 21 :24--28).
Appellants have not demonstrated error in the Examiner's finding that
Saxena, when combined with Jalali, Francesca, and Weaver, teaches or
suggests the subset of channels limitation.
Embedded Time Stamp Limitation
The embedded time stamp limitation of claim 63 is similar to the
header inspection limitation of claim 22. Compare App. Br. 30: 18-19 with
id. 26:12-14. Appellants' arguments regarding the embedded time stamp
limitation of claim 63 are substantially the same as for the header inspection
limitation of claim 22. Compare App. Br. 21:40-22:7 with App. Br. 13:6-
24. We agree with the Examiner's findings and conclusions (see Final Act.
33; Ans. 31-32) for the reasons set forth supra regarding claim 22.
Accordingly, Appellants have not demonstrated error in the Examiner's
finding that Saxena, when combined with Jalali, Francesca, and Weaver,
teaches or suggests the embedded time stamp limitation.
Summary
Appellants have not demonstrated error in the rejection of claim 63.
Accordingly, we sustain the rejection of claim 63 over Jalali, Francesca,
Weaver, and Saxena.
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INDEPENDENT CLAIM 64
Appellants do not argue the patentability of claim 64. See App. Br.
22:13-19; Reply Br. 23:1-8. Therefore, Appellants have waived
argumentation in this proceeding traversing the rejection of claim 64. See
37 C.F.R. § 41.37(c)(l)(iv). Accordingly, we summarily sustain the
rejection of claim 64 over Jalali, Francesca, Coffin, and Harris.
INDEPENDENT CLAIM 65
Issue
Appellants' contentions present the following dispositive issue, inter
alia: Does the Examiner err in finding the combination of Jalali, Francesca,
and Raman teaches or suggests "transmission of information that correlates
said packets of said first program stream to said respective RF channels over
which said packets of said first program stream are transmitted in order to
facilitate reassembly of said first program stream therefrom at a destination"
(the "correlation information transmission limitation"), as recited in claim
65?
Analysis
The correlation information transmission limitation of claim 65 is
similar to the mapping information limitation of claim 48. Compare App.
Br. 31 :24--27 with id. at 28:3-5. The Examiner's findings regarding the
correlation information transmission limitation of claim 65 are substantially
similar to those for the mapping information limitation of claim 48.
Compare Final Act. 37-38 with id. at 19. Appellants' arguments regarding
the correlation information transmission limitation of claim 65 are
substantially similar to those for the mapping information limitation of claim
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48. Compare Reply Br. 24: 16-24 with id. at 14:2--40. We agree with
Appellants' contentions for the reasons set forth supra regarding claim 48.
Accordingly, Appellants have demonstrated error in the Examiner's finding
that Francesca, when combined with Jalali, teaches or suggests the
correlation information transmission limitation.
Appellants have demonstrated error in the rejection of claim 65.
Accordingly, we do not sustain the rejections of claim 65 over Jalali,
Francesca, and Raman.
DECISION
The decision of the Examiner to reject claim 64 is summarily
affirmed.
The decision of the Examiner to reject claims 22, 39--41, and 63 is
affirmed.
The decision of the Examiner to reject claims 1, 2, 43--45, 48-53, 60-
62, and 65 is reversed.
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). See 37 C.F.R.
§§ 41.50(f), 41.52(b).
AFFIRMED-IN-PART
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