Ex Parte Chen et al

Patent Trial and Appeal Board

Jul 19, 2016

11811357 (P.T.A.B. Jul. 19, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
111811,357 06/08/2007
84326 7590 07119/2016
AT & T LEGAL DEPARTMENT-Toler
ATTN: PA TENT DOCKETING
ROOM2A-207
ONEAT&TWAY
BEDMINSTER, NJ 07921
FIRST NAMED INVENTOR
Yih-Farn Chen
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.
2006-Al369 6793
EXAMINER
CHANG,TOMY
ART UNIT PAPER NUMBER
2456
MAILDATE DELIVERY MODE
07/19/2016 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 YIH-FARN CHEN,
YENNUN HUANG,
JEREMY RAHE, and BIN WEI
Appeal2015-002369
Application 11/811,357
Technology Center 2400
Before MAHSHID D. SAADAT, JOHN A. EV ANS, and
STEVEN M. AMUNDSON, Administrative Patent Judges.
AMUNDSON, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 seek our review under 35 U.S.C. § 134(a) from a final
rejection of claims 1, 3-5, 10-11, 14--15, 17-18, 21-23, and 26-28, i.e., all
pending claims. We have jurisdiction under 35 U.S.C. § 6(b ).
We affirm-in-part.
1 According to Appellants, the real party in interest is AT&T Intellectual
Property I.L.P. (formerly AT&T Knowledge Ventures, LP). App. Br. 1.
Appeal2015-002369
Application 11/811,357
STATEMENT OF THE CASE
The Invention
According to the Specification, the invention generally relates to
"internet protocol television (IPTV) applications." Spec. i-f 1. 2 More
particularly, various peers in a peer-to-peer network store various portions of
a "video content item" (e.g., a television program or movie) to permit
retrieval of at least a subset of portions and recovery of the "video content
item." Abstract.
The claims under consideration include independent claims 1, 14,
and 17, as well as dependent claims 3-5, 10-11, 21, and 26-27 based on
claim 1, claims 15, 23, and 2 8 based on claim 14, and claims 18 and 22
based on claim 1 7.
Representative Claims
Independent claims 1, 14, and 17 exemplify the subject matter of the
claims under consideration. Claims 1, 14, and 17 read as follows, with
italics identifying the limitations at issue:
1. A method comprising:
receiving via a peer-to-peer network at a first set-top box,
a request for a portion of video content from a second set-top
box, wherein the request indicates a time that delivery of the
portion of video content to the second set-top box is to be
completed, wherein the first set-top box determines a bandwidth
threshold for serving the request based on the time, and
2 This decision employs the following abbreviations: "Spec." for
Specification, filed June 8, 2007; "Non-Final Act." for the Non-Final Office
Action, mailed December 16, 2013; "Final Act." for the Final Office Action,
mailed April 2, 2014; "App. Br." for the Appeal Brief, filed September 2,
2014; "Ans." for the Examiner's Answer, mailed October 24, 2014; and
"Reply Br." for the Reply Brief, filed December 23, 2014.
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wherein the video content is encoded into a plurality of portions
including the portion, each portion of the plurality of portions
less than an entire portion of the video content;
performing, at the first set-top box, load balancing with
respect to the peer-to-peer network by:
determining, at the first set-top box, to transmit the
portion to the second set-top box using less than an
available upload bandwidth of the first set-top box; and
in response to determining to transmit the portion to
the second set-top box using less than the available
upload bandwidth, determining, at the first set-top box
based on a size of the portion and the time, an upload
rate to transmit the portion from the first set-top box to
the second set-top box, the upload rate corresponding to
a bandwidth that is less than the available upload
bandwidth and greater than or equal to the bandwidth
threshold; and
transmitting the portion from the first set-top box to the
second set-top box in accordance with the upload rate.
14. A computer-readable storage device storing instructions
that, when executed by a processor, cause the processor to
perform operations including:
selecting a plurality of server-peer set-top boxes from
which to request a subset of a plurality of portions of a video
content item, wherein the video content item is erasure-encoded
to enable the video content item to be recovered using at least a
threshold percentage of the plurality of portions, and wherein
the subset corresponds to a percentage of the plurality of
portions that is less than all portions of the plurality of portions
and that is greater than or equal to the threshold percentage;
sending requests for the subset of the plurality of portions
of the video content item to the plurality of server-peer set-top
boxes via a peer-to-peer network, wherein each particular
request for a particular portion indicates a time that delivery of
the particular portion is to be completed, wherein the time
enables a server-peer set-top box of the plurality of server-peer
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set-top boxes to determine a bandwidth threshold for serving
the request;
receiving, via the peer-to-peer network, the subset of the
plurality of portions of the video content item from the plurality
of server-peer set-top boxes;
decoding the subset of the plurality of portions to recover
one or more of the portions of the video content item using the
subset; and
playing the one or more of the portions.
17. A system comprising:
an erasure-encoder to erasure-encode a video content
item to form a plurality of erasure-encoded portions;
a server to distribute the plurality of portions to a
plurality of set-top boxes, respectively, of a peer-to-peer
network; and
a forecaster to forecast whether the video content item is
likely to be requested by at least one set-top box of the peer-to-
peer network based on previous video content requests to a
television service, wherein the server selects the video content
item to distribute based on the forecast.
App. Br. 15, 17-18 (Claims App.).
The Prior Art Supporting the Rejections on Appeal
As evidence of unpatentability, the Examiner relies on the following
prior art:
Bergsson et al.
("Bergsson")
Bornstein et al.
("Bornstein")
Li et al. ("Li '94 7")
Li ("Li '209")
Marvit et al. ("Marvit")
US 2002/0071388 Al
US 2002/0163882 Al
US 2006/0007947 Al
US 2006/0053209 Al
US 2008/0065771 Al
4
June 13, 2002
Nov. 7, 2002
Jan. 12,2006
Mar. 9, 2006
Mar. 13, 2008
(filed Sept. 11, 2006)
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Application 11/811,357
Dacosta
Peters et al. ("Peters")
Blmnenau
US 2008/0189429 Al
US 2008/0235746 Al
US 7,650,376 Bl
The Rejections on Appeal
Aug. 7, 2008
(filed Feb. 2, 2007)
Sept. 25, 2008
(filed Mar. 20, 2007)
Jan. 19,2010
(filed Nov. 20, 2000)
Claims 1, 3-5, 14--15, 21, and 26-28 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Blumenau in view of Li '209, Li '947, and
Bergsson. Final Act. 2-11; App. Br. 4; Ans. 2-11.
Claim 10 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Blumenau in view of Li '209, Li '947, Bergsson, and Peters. Final
Act. 12; App. Br. 4; Ans. 11-12.
Claim 11 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Blumenau in view of Li '209, Li '947, Bergsson, and DaCosta. Final
Act. 9; App. Br. 4; Ans. 9.
Claims 17-18 and 22 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Blumenau in view of Li '209, Li '947, Bergsson, and
Marvit. Final Act. 12-14; App. Br. 4; Ans. 12-14.
Claim 23 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Blumenau in view of Li '209, Li '947, Bergsson, and Bornstein. Final
Act. 14--15; App. Br. 4--5; Ans. 14--15.
ANALYSIS
We have reviewed the rejections of the pending claims in light of
Appellants' arguments that the Examiner erred. In doing so, we have
evaluated only the arguments that Appellants actually make on appeal.
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Arguments that Appellants could have made but declined to make are
considered waived. See 37 C.F.R. § 41.37(c)(l)(iv).
The Rejection of Claims 1, 3-5, 21,
and 26-27 Under 35 US.C. § 103(a)
Independent claim 1 recites a method and requires that a request for
video content from a requesting peer include a delivery-completion time and
that a serving peer determine "a bandwidth threshold for serving the request
based on the [delivery-completion] time." App. Br. 15 (Claims App.).
Claim 1 also requires that a serving peer determine "an upload rate ... less
than the available upload bandwidth and greater than or equal to the
bandwidth threshold." Id.
The Examiner admits that "Blumenau does not teach" a serving peer
that determines "a bandwidth threshold for serving the request based on the
[delivery-completion] time." Final Act. 5; Ans. 5. To address that
deficiency, the Examiner finds that Bergsson teaches a system for regulating
data transmissions where a "sending terminal [serving peer] calculates a
throughput rate [upload rate] based upon returned acknowledgement
messages." Final Act. 6 (quoting Bergsson i-f 43); Ans. 5---6 (quoting
Bergsson i-f 43). The Examiner reasons that modifying Blumenau with
Bergsson would "achieve a system" where a serving peer determines
"a bandwidth threshold for serving the request based on the [delivery-
completion] time." Final Act. 6; Ans. 6. Hence, the Examiner relies on
Bergsson as "support that it would have been obvious to one of ordinary
skill to have" a serving peer "perform the determining of the bandwidth and
transmitting of content" to a receiving peer. Ans. 18-19.
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Appellants note the Examiner's admission concerning Blumenau.
App. Br. 5. As for Bergsson, Appellants argue that the cited portions of it do
not disclose a serving peer that determines "a bandwidth threshold for
serving the request based on the [delivery-completion] time." Id. at 7. In
particular, Appellants contend that calculating a throughput rate (upload
rate) using returned acknowledgement messages differs from determining a
bandwidth threshold based on a delivery-completion time. Id. at 6.
We agree with that contention concerning Bergsson. Thus, we agree
with Appellants that the cited portions of Bergsson do not disclose a serving
peer that determines "a bandwidth threshold for serving the request based on
the [delivery-completion] time" as required by claim 1.
In addition to Bergsson, the Examiner relies on Li '209's calculation
of a desired request fulfillment time Trft as evidence that the prior art
discloses a bandwidth-threshold determination by a serving peer based on a
delivery-completion time. Ans. 17 (citing Li '209 i-fi-f 130-31 ). In particular,
the Examiner reasons that the limitation "determines a bandwidth threshold
for serving the request based on the [delivery-completion] time" in claim 1
"is reasonably construed" to encompass the calculation of "any bandwidth"
using the request fulfillment time Trft· Id. The Examiner then relies on
"Blumenau in view of Li ['209] to teach" that limitation. Id. at 18.
Appellants respond by disputing the Examiner's claim construction.
Reply Br. 4. In particular, Appellants note that the Specification explains
that "' [ e Jach serving peer can determine a minimum necessary bandwidth to
serve the request."' Id. at 4 (quoting Spec. i123). Based on that explanation,
Appellants contend that "a person of ordinary skill in the art would
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understand a minimum necessary bandwidth as being an example of a
bandwidth threshold." Id.
Appellants also contend that Li '209's calculation of the request
fulfillment time Trft results in a "maximum bitrate" because the "client
[requesting peer] only issues requests for data with a bitrate below the
calculated bitrate." Reply Br. 4 (citing Li '209 i-f 131 ). Thus, Appellants
urge that Li '209 does not disclose a serving peer that determines
( 1) "a bandwidth threshold for serving the request based on the [delivery-
completion] time" or (2) "an upload rate ... less than the available upload
bandwidth and greater than or equal to the bandwidth threshold" as required
by claim 1. Id. at 3--4.
We conclude that the Examiner interprets the limitation "determines a
bandwidth threshold for serving the request based on the [delivery-
completion] time" in claim 1 too broadly. "[D]uring examination
proceedings, claims are given their broadest reasonable interpretation
consistent with the specification." In re Hyatt, 211F.3d1367, 1372
(Fed. Cir. 2000). Here, as Appellants note, the Specification's explanation
that "[ e Jach serving peer can determine a minimum necessary bandwidth to
serve the request" indicates that a "bandwidth threshold" corresponds to a
minimum rate. Construing "bandwidth threshold" more broadly conflicts
with the Specification.
Regarding Li '209's calculation of the request fulfillment time Trft, the
Examiner concedes that "Li does not teach using less than the [available
upload] bandwidth of a serving peer." Final Act. 5; Ans. 5.
Consequently, the Examiner has not established that the broadest
reasonable interpretation of the limitation "determines a bandwidth threshold
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for serving the request based on the [delivery-completion] time" reads on
Li '209 or that Li '209 teaches "an upload rate ... less than the available
upload bandwidth and greater than or equal to the bandwidth threshold" as
required by claim 1.
Based on the record before us, the Examiner has not adequately
explained how the cited portions of Blumenau, Bergsson, and Li '209
disclose a serving peer that determines "a bandwidth threshold for serving
the request based on the [delivery-completion] time" as well as "an upload
rate ... less than the available upload bandwidth and greater than or equal to
the bandwidth threshold" as required by claim 1. As for Li '947, the
Examiner does not rely on it as disclosing a bandwidth-threshold
determination. Final Act. 5; Ans. 5, 17-18. Thus, we do not sustain the
obviousness rejection of claim 1 based on Blumenau, Li '209, Li '947, and
Bergs son.
Claims 3-5, 21, and 26-27 depend directly or indirectly from claim 1.
App. Br. 15-16, 18-19 (Claims App.). Appellants present the same
patentability arguments for these dependent claims as for claim 1. App.
Br. 5-7. For the reasons discussed regarding claim 1, we do not sustain the
obviousness rejection of these dependent claims based on Blumenau,
Li '209, Li '947, and Bergsson.
The Rejection of Claim 10 Under 35 USC§ 103(a)
Claim 10 depends from claim 1 and further requires that a serving
peer's "upload rate does not exceed S/T, where Sis the size of the portion
[of video content] and where T is an amount of time remaining until the
portion [of video content] is to be received at" a receiving peer. App. Br. 16
(Claims App.). The rejection of claim 10 rests on Blumenau, Li '209,
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Li '947, Bergsson, and Peters. Final Act. 12; Ans. 11-12. But the Examiner
does not rely on Peters as disclosing a serving peer that determines "a
bandwidth threshold for serving the request based on the [delivery-
completion] time" as well as "an upload rate ... less than the available
upload bandwidth and greater than or equal to the bandwidth threshold" as
required by claim 1. Final Act. 12; Ans. 11-12, 20-21. Consequently, we
do not sustain the obviousness rejection of claim 10 based on Blumenau,
Li '209, Li '947, Bergsson, and Peters.
The Rejection of Claim 11 Under 35 USC§ 103(a)
Claim 11 depends from claim 1 and further requires that a serving
peer "spreads uploading the portion over at least half of T, where T is an
amount of time remaining until the portion [of video content] is to be
received at" a receiving peer. App. Br. 16 (Claims App.). The rejection of
claim 11 rests on Blumenau, Li '209, Li '947, Bergsson, and DaCosta. 3
Non-Final Act. 8-9; Final Act. 9; Ans. 9. But the Examiner does not rely on
DaCosta as disclosing a serving peer that determines "a bandwidth threshold
for serving the request based on the [delivery-completion] time" as well as
"an upload rate ... less than the available upload bandwidth and greater than
or equal to the bandwidth threshold" as required by claim 1. Non-Final Act.
3 In each of the Non-Final Office Action, the Final Office Action, and the
Examiner's Answer, the Examiner initially references Blumenau when
discussing the rejection of claim 11 but follows that initial reference with a
quotation from DaCosta as support for the rejection, i.e., a quotation from
paragraph 121 in DaCosta. Non-Final Act. 8-9; Final Act. 9; Ans. 9. For
claim 11, Appellants' patentability arguments address DaCosta, and the
Examiner responds to those arguments by referring to DaCosta. App.
Br. 9-10; Ans. 19. Thus, we consider the rejection of claim 11 as resting in
part on DaCosta.
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8-9; Final Act. 9; Ans. 9, 19. Consequently, we do not sustain the
obviousness rejection of claim 11 based on Blumenau, Li '209, Li '947,
Bergsson, and DaCosta.
The Rejection of Claims 14-15 and 28 Under 35 US.C. § 103(a)
Independent claim 14 concerns a "computer-readable storage device
storing instructions" that cause a processor to perform certain operations.
App. Br. 17 (Claims App.). Claim 14 requires that a request for a portion of
video content "indicate" a delivery time for the requested portion that
"enables" a serving peer "to determine a bandwidth threshold for serving the
request." Id.
Appellants advance similar patentability arguments for claim 14 as for
claim 1. App. Br. 5-9. But claim 14 is not commensurate in scope with
claim 1. Among other things, claim 14 does not require that a serving peer
determine "an upload rate ... less than the available upload bandwidth and
greater than or equal to the bandwidth threshold." Id. at 17. In contrast to
the patentability arguments for claim 1, Appellants do not assert that any
"upload rate" limitation distinguishes claim 14 from the cited references.
Reply Br. 3-5.
Accordingly, Appellants' arguments are not persuasive of error in the
obviousness rejection of claim 14 based on Blumenau, Li '209, Li '947, and
Bergsson. Hence, we sustain the rejection.
Appellants urge that dependent claims 15 and 28 "are allowable, at
least by virtue of depending from claim 14." App. Br. 9; Reply Br. 5. But
Appellants do not articulate any patentability arguments for claims 15 and
28 beyond the arguments regarding claim 14. App. Br. 7-9; Reply Br. 4--5.
Because Appellants do not argue the claims separately, they stand or fall
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together. See 37 C.F.R. § 41.37(c)(l)(iv). Hence, we sustain the
obviousness rejection of claims 15 and 28.
The Rejection of Claim 23 Under 35 US.C. § 103(a)
Claim 23 depends from claim 14 and concerns retrieving a portion of
video content "from a central server in response to determining" a failure to
receive that portion from a serving peer. App. Br. 19 (Claims App.). The
rejection of claim 23 rests on Blumenau, Li '209, Li '94 7, Bergsson, and
Bornstein. Final Act. 14--15; Ans. 14--15. The Examiner finds that
Bornstein teaches "determining a failure to receive one of the plurality of
portions of' video content from a serving peer and retrieving that portion
"from a central server in response to determining the failure." Final
Act. 14--15; Ans. 14--15.
Appellants do not contest that finding. App. Br. 13-14. Instead,
Appellants simply assert that the cited references "individually or in
combination, fail to disclose at least one element of claim 14, from which
claim 23 depends" and that "claim 23 is allowable, at least by virtue of
depending from an allowable claim." Id. at 14.
For the reasons stated above regarding the obviousness rejection of
claim 14, Appellants have not established error in the obviousness rejection
of claim 23 based on Blumenau, Li '209, Li '947, Bergsson, and Bornstein.
Hence, we sustain the rejection.
The Rejection of Claims 17-18 and 22 Under 35 US.C. § 103(a)
Independent claim 17 concerns a system including, among other
things, a server that distributes portions of a "video content item" to various
peers in a peer-to-peer network and a "forecaster" that forecasts whether at
least one peer will likely request that item "based on previous video content
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requests to a television service." App. Br. 18 (Claims App.). The rejection
of claim 17 rests on Blumenau, Li '209, Li '947, Bergsson, and Marvit.
Final Act. 12-13; Ans. 12-13.
For claim 17, the patentability question turns on Marvit. App.
Br. 12-13; Ans. 12-13, 21-22. The Examiner finds that Marvit teaches
claim 17's "forecaster" limitation. Final Act. 13; Ans. 13. In particular, the
Examiner relies on Marvit's disclosure concerning the advanced distribution
of video content (e.g., a movie) to various peers in a peer-to-peer network
"before the public release of the [video] content" to allow the "initial
bandwidth to meet the demand for the new content" where the advanced
distribution (or preseeding) occurs "in accordance with marketing plans and
expectations .... " Final Act. 13 (quoting Marvit i-f 128); Ans. 13 (quoting
Marvit i-f 128).
Appellants argue that "[t]he cited portions of Marvit do not disclose
that the marketing plans and expectations are based on previous requests to a
television service." App. Br. 12. The Examiner finds, however, that
"preseeding responsive to expectations" according to Marvit "implies
forecasting and selection of content to distribute based on past requests."
Ans. 21-22. Appellants do not dispute that finding. Reply Br. 2-5.
We agree with the Examiner that Marvit teaches claim 17 's
"forecaster" limitation. Inventors can act as their own lexicographers if they
clearly set forth a definition of a claim term or phrase other than its plain and
ordinary meaning. Vasudevan Software, Inc. v. MicroStrategy, Inc., 782
F.3d 671, 677 (Fed. Cir. 2015). Here, Appellants do not contend that the
Specification sets forth a definition for the term "forecast" or the phrase
"forecast ... based on previous video content requests to a television
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service." App. Br. 12-13. Instead, the Specification describes forecasts
based on "collected statistics" and "historical data." Spec. i-fi-1 7, 19.
The broadest reasonable interpretation of the claim language at issue
encompasses Marvit's disclosure regarding pre-seeding "in accordance with
marketing plans and expectations .... " Appellants do not argue that
"marketing plans and expectations" have no relationship to "collected
statistics" and "historical data" or that video-content providers disregard
"collected statistics" and "historical data" when developing "marketing
plans and expectations." App. Br. 12-13; Reply Br. 2-5.
Accordingly, Appellants have not established error in the obviousness
rejection of claim 17 based on Blumenau, Li '209, Li '947, Bergsson, and
Marvit. Hence, we sustain the rejection. 4
Appellants urge that dependent claims 18 and 22 "are allowable, at
least by virtue of depending from claim 17." App. Br. 13. But Appellants
do not articulate any patentability arguments for claims 18 and 22 beyond
the arguments regarding claim 17. Id. at 12-13. Because Appellants do not
argue the claims separately, they stand or fall together. See 37 C.F.R.
§ 41.37(c)(l)(iv). Hence, we sustain the obviousness rejection of claims 18
and 22.
4 In the event of continued prosecution, the Examiner should consider the
applicability of 35 U.S.C. § 112 i16 to claim 17's "forecaster" limitation.
See Williamson v. Citrix Online, LLC, 792 F.3d 1339, 1349 (Fed. Cir. 2015)
(revoking the "strong" presumption that a limitation lacking the word
"means" is not subject to 35 U.S.C. § 112 i16 and stating the standard as
"whether the words of the claim are understood by persons of ordinary skill
in the art to have a sufficiently definite meaning as the name for structure").
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DECISION
We reverse the rejection of claims 1, 3-5, 10-11, 21, and 26-27 under
35 U.S.C. § 103(a).
We affirm the rejection of claims 14--15, 17-18, 22-23, and 28 under
35 U.S.C. § 103(a).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED-IN-PART
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