Ex Parte Carpio et al

Patent Trial and Appeal Board

Dec 20, 2012

12142117 (P.T.A.B. Dec. 20, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
_____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
_____________

Ex parte FREDRIK CARPIO,
MILTON MASSEY FRAZIER,
and NIKOLAOS GEORGIS
_____________

Appeal 2010-007603
Application 12/142,117
Technology Center 2400
______________

Before DAVID M. KOHUT, BRYAN F. MOORE, and
MICHAEL J. STRAUSS, Administrative Patent Judges.

MOORE, Administrative Patent Judge.

DECISION ON APPEAL

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Application 12/142,117

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This is a decision on appeal under 35 U.S.C. § 134(a) of the Final
Rejection of claims 1-13 and 15-20. App. Br. 2. Claim 14 is canceled. Id.
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.

INVENTION
The invention is directed to filtering network packets based on
dynamic usage information associated with a receiving networked device.
See Spec. 1.
Claims 1 and 8 are exemplary of the invention and reproduced below:
1. A receiver of network data comprising:
a processor causing the receiver to dynamically filter
network packets by packet type from a network device central
processing unit (CPU) based on usage information, the usage
information including one or more of time, day of the week,
location of the network device.

8. A method comprising:
receiving dynamic usage information pertaining to a
network device;
based on the dynamic usage information, determining at
least one desired packet type from a network; and
passing, from a packet receiver of the network device to a
central processing unit (CPU) of the network device, only the
packets determined to be desired, wherein if the user selects a
“video” feature, the desired packet type includes video packets
but not binary application packets, wherein if the user changes
to an “application” feature selection, the desired packet type
includes binary application packets but not video packets.

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REFERENCES
Hylton US 5,708,961 Jan. 13, 1998
Pawlowski US 6,038,199 Mar. 14, 2000
Istvan US 2006/0041926 A1 Feb. 23, 2006
Frazier US 2008/0120683 A1 May 22, 2008

REJECTION AT ISSUE
Claims 1, 2, 5, 6, and 18-20 are rejected under 35 U.S.C. § 102(a) as
being anticipated by Frazier. Ans. 3-6.
Claim 8, 12, 13, and 15-17 are rejected under 35 U.S.C. § 103(a) as
unpatentable over the combination of Frazier and Hylton. Ans. 6-8.
Claims 3 and 4 are rejected under 35 U.S.C. § 103(a) as unpatentable
over the combination of Frazier and Istvan. Ans. 8.
Claim 7 is rejected under 35 U.S.C. § 103(a) as unpatentable over the
combination of Frazier and Pawlowski. Ans. 8-9.
Claims 9-11 are rejected under 35 U.S.C. § 103(a) as unpatentable
over the combination of Frazier, Hylton, and Istvan. Ans. 9.

ISSUE
1. Did the Examiner err in finding that Frazier discloses
“dynamically filter network packets by packet type” and “usage
information, the usage information including . . . time” as
recited in claim 1?
2. Did the Examiner err in finding that Hylton teaches or suggests
“based on the dynamic usage information, determining at least
one desired packet type from a network; and passing, from a
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packet receiver of the network device to a central processing
unit (CPU) of the network device, only the packets determined
to be desired, wherein if the user selects a ‘video’ feature, the
desired packet type includes video packets but not binary
application packets, wherein if the user changes to an
‘application’ feature selection, the desired packet type includes
binary application packets but not video packets.” as recited in
claim 8?
ANALYSIS
35 U.S.C. § 102(a) - Frazier
1, 2, 5, 6 and 18-20
Claim 1 recites “dynamically filter[ing] network packets by packet
type.” Appellants argue that Frazier does not disclose this limitation. App.
Br. 4. Specifically, Appellants argue that despite the fact that Frazier
discloses that “[d]epending on the nature of the signal, it may be sent
directly to the display 14 from the tuner 16 or sent first through the
processor 18 for subsequent display” (Frazier, ¶ 13), “[s]ince signals sent
from the tuner direct to the display without passing through the processor
can be analog and in any case are not disclosed to be packets, nothing in
paragraph 13 teaches filtering as between packet types as set forth in Claim
1.” App. Br. 4 (emphasis omitted). We are not persuaded by this argument.
The Specification describes packet type generally as a choice between
types such as video, binary application, and emergency packets. Spec. 4.
The Microsoft Computer Dictionary defines a “packet” as “[a] unit of
information transmitted as a whole from one device to another on a
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network.” Microsoft Computer Dictionary, Fifth Edition, 2002. The
Examiner interprets packet as “a block or collection of data or information.”
Ans. 11. Based on this definition, the Examiner finds that the broadest
reasonable interpretation of “packet” encompasses the nature of a signal that
is sent. Frazier, ¶ 13. We find there is ample support for the Examiner’s
finding.
Appellants do not identify any description in the original disclosure,
other that what is cited above, that provides additional guidance in
construing this term, nor do Appellants identify any description in the
original disclosure that precludes the Examiner’s construction. Accordingly,
and in view of the record presented, Appellants have not persuasively argued
that the Examiner’s construction is unreasonable in view of, or inconsistent
with, Appellants’ Specification. Therefore, we interpret “packet” as a block
or collection of data or information.
As noted above, Frazier teaches that an incoming digital signal may
be directed to a tuner or a processor based on the nature of the signal sent.
Frazier also discloses that a user may select a “sink,” i.e. an appropriate
component to receive a signal. Frazier, ¶¶ 25 and 26. The Examiner finds
that when a signal is digital, the packet type encompasses the nature of the
signal. Ans. 10. The Examiner also finds that when the signal is directed to
an appropriate “sink” it is filtered as required by claim 1. Id. Thus, based on
the portions of Frazier discussed above, we agree with the Examiner that
Frazier discloses “dynamically filter[ing] network packets by packet type.”
See Ans. 10-11.
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Claim 1 also recites that the filtering is done based on “usage
information, the usage information including . . . time.” Appellants argue
that “[t]he relied-upon portion of Frazier teaches storing content for
playback at a later time, not that the concept of time is used to filter packets
as claimed in Claim 1, much less that time is a usage information.” App. Br.
4-5. We are not persuaded by this argument.
Frazier discloses “[d]epending on the nature of the signal, it may be
sent directly to the display 14 from the tuner 16 or sent first through the
processor 18 for subsequent display.” Frazier, ¶ 13. Frazier also discloses
that the reason to send the signal to the processor may be to send the signal
to a hard disk drive for storage and later viewing. Frazier, ¶ 25. Thus,
Frazier discloses that the signal may be sent to a processor, i.e. a packet may
be filtered, based on the time the user wishes to view the packet. Therefore,
we agree with the Examiner that Frazier discloses the filtering is done based
on “usage information, the usage information including . . . time.”
Therefore, for the reasons stated above, we affirm the Examiners rejection of
claim 1.
Appellants argue that claims 5 and 18 are patentable for the same
reason that claim 1 is patentable (that Frazier allegedly does not disclose
filtering by packet type). Claims 2, 6, 19, and 20 are not separately argued
and thus fall with claim 1. Therefore, for the reasons stated above, we
affirm the Examiners rejection of claims 2, 5, 6, 18, 19, and 20.
Appeal 2010-007603
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35 U.S.C. § 103(a) - Frazier and Hylton
8, 12, 13, and 15-17
Appellants argue that claims 8, 12, and 13 are patentable for the same
reason that claim 1 is patentable (that Frazier allegedly does not disclose
filtering by packet type). App. Br. 7. We refer to the discussion above
where we discuss this argument.
Additionally, Appellant argues that Frazier does not disclose “usage
information includes user preference as indicated by input received from a
user input device” and “wherein the user preference is a ‘video’ feature or an
‘application’ feature of the network device” as recited in claims 8, 12, and
13. App. Br. 7. Specifically, Appellants argue
[n]one the relied-upon portions of Hylton remotely discuss
passing, from a packet receiver of the network device to a
central processing unit (CPU) of the network device, only the
packets determined to be desired, much less that if “video” is
selected the desired packet type includes video packets but not
binary application packets while if “application" is selected the
opposite obtains.

Id.
In response, the Examiner states that:
Hylton teaches that the audio, video and data packets for each
program are inserted in the stream as the multiplexer receives
and compiles enough payload data for each type of packet on
the input form [sic] the particular program selector; where the
data packet type may be for signaling/control or carrying a
program mapping table (PMT); the first packet is PMT packet
which is sent to the processor of the set-top terminal (col. 8,
lines 18-26, col. 12, lines 12-16, col. 13, line 65 through col.
14, line 4).

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Ans. 16; see also Ans. 7. However, the Examiner does not explain,
nor can we determine from our review of the Hylton reference, how a
user would select a video packet and receive only video packets. The
Examiner does not explain what is to be considered the binary
application packet, but if we assume that the data packet is the binary
application packet, the Examiner does not explain how a user of
Hylton would select a data packet and receive only data packets.
Hylton discusses mapping the video and audio packets and data
packets for a chosen program to the correct terminal. Hylton, 12:12-
16, 12:67-13:4. However, Hylton does not disclose a mechanism for
receiving only data packets. Therefore, we cannot sustain the
Examiner’s rejection of claim 8. Claims 12, 13, and 15-17 depend
from claim 8 thus stand with claim 8. Therefore, for the reasons
stated above, we reverse the Examiners rejection of claims 8, 12, 13,
and 15-17.
35 U.S.C. § 103(a) - Frazier and Istvan
Claim 3 and 4
Claims 3 and 4 recite that the usage information includes day of the
week and the location of a network device. Appellants argue “[t]here is no
suggestion in Istvan that these concepts, admittedly missing from Frazier,
might be used as bases for filtering packets as opposed to simply being
concepts dangling alone in empty space.” App. Br. 8. However, as noted
above, choosing whether to view an incoming signal or store it is interpreted
as filtering packets. Istvan teaches that the video program may be selected
based on viewing time (day of the week) and or location. Istvan, ¶¶ 5, 173.
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We note that the U.S. Supreme Court has held that “[t]he obviousness
analysis cannot be confined by a formalistic conception of the words
teaching, suggestion, and motivation, or by overemphasis on the importance
of published articles and the explicit content of issued patents.” KSR Int’l
Co. v. Teleflex Inc., 550 U.S. 398, 419 (2007). Instead, the relevant inquiry
is whether the Examiner has set forth “some articulated reasoning with some
rational underpinning to support the legal conclusion of obviousness.” In re
Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) (cited with approval in KSR, 550
U.S. at 418). The Examiner finds that “it would have been obvious to one
having ordinary skill in the art at the time the invention was made to
combine teachings from Istvan into the Frazier ‘683 invention to provide
user control flexibility for selecting video programs.” Ans. 8. Upon
reviewing the record before us, we find that the Examiner’s suggestion for
modifying Frazier with Istvan suffices as an articulated reason with some
rational underpinning to justify the legal conclusion of obviousness. In other
words, a user would be motivated to use the scheduling information of
Istvan to decide whether to use Frazier to watch a show now or save a show
for later. Therefore, we affirm the Examiner’s rejection of claims 3 and 4.
35 U.S.C. § 103(a) - Frazier and Pawlowski
Claim 7
Claim 7 is not separately argued and thus falls with claim 1.
Therefore, for the reasons stated above, we affirm the Examiners rejection of
claim 7.
Appeal 2010-007603
Application 12/142,117

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35 U.S.C. § 103(a) - Frazier, Hylton, and Istvan
Claims 9-11
Claims 9-11 depend from claim 8 discussed above. Therefore, for the
reasons stated above, we reverse the Examiners rejection of claims 9-11.

DECISION
The Examiner’s decision to reject claims 1-7 and 18-20 is affirmed.
The Examiner’s decision to reject claims 8-13 and 15-17 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)(1)(iv).

AFFIRMED-IN-PART

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