Ex Parte DowneyDownload PDFBoard of Patent Appeals and InterferencesFeb 9, 201111123758 (B.P.A.I. Feb. 9, 2011) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE 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 APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 11/123,758 05/06/2005 Kyle F. Downey 12510/81 8448 26646 7590 02/09/2011 KENYON & KENYON LLP ONE BROADWAY NEW YORK, NY 10004 EXAMINER LIPMAN, JACOB ART UNIT PAPER NUMBER 2434 MAIL DATE DELIVERY MODE 02/09/2011 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 BOARD OF PATENT APPEALS AND INTERFERENCES ____________________ Ex parte KYLE F. DOWNEY ____________________ Appeal 2009-007220 Application 11/123,758 Technology Center 2400 ____________________ Before LANCE LEONARD BARRY, JOHN A. JEFFERY, and THU A. DANG, Administrative Patent Judges. DANG, Administrative Patent Judge. DECISION ON APPEAL1 1 The two-month time period for filing an appeal or commencing a civil action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing, as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE” (paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery mode) shown on the PTOL-90A cover letter attached to this decision. Appeal 2009-007220 Application 11/123,758 I. STATEMENT OF CASE Appellant appeals the Examiner’s final rejection of claims 1, 3-8, 36, and 41 under 35 U.S.C. § 134(a). Claims 2, 9-35, 37-40, and 42-45 have been canceled. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. A. INVENTION According to Appellant, the invention relates to the secure distribution of content over a communications network such as the Internet (Spec. 1, ll. 3-4). B. ILLUSTRATIVE CLAIM Claim 1 is exemplary and reproduced below: 1. A method for secure distribution of a content item over a communications network, comprising: packaging the content item into a plurality of blocks of data; distributing at least one block of data from the plurality of blocks of data for the content item to at least one of a plurality of content sources in a peer-to-peer network, wherein the at least one content source serves as a distribution point for the at least one block of data; receiving a request from a subscriber for the content item, the content item made available over the communications network; verifying an authorization for the subscriber to access the content item; and 2 Appeal 2009-007220 Application 11/123,758 providing to the subscriber a list identifying at least one particular content source as a function of verifying the authorization, wherein the at least one particular content source makes available to the subscriber a particular block of data for the content item that is encrypted. C. REJECTIONS The prior art relied upon by the Examiner in rejecting the claims on appeal is: Tormasov US 2002/0147815 A1 Oct. 10, 2002 Schleicher US 7,047,406 B2 May 16, 2006 Claims 1, 3-8, 36, and 41 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Tormasov in view of Schleicher. II. ISSUE Has the Examiner erred in concluding that Tormasov in view of Schleicher would have suggested “verifying an authorization for the subscriber to access the content item” (claim 1)? In particular, the issue turns on whether Schleicher would have suggested authorization to access content items. III. FINDINGS OF FACT The following Findings of Fact (FF) are shown by a preponderance of the evidence. Schleicher 1. Schleicher relates to peer-to-peer networks (col. 3, l. 13), including a secure e-delivery network that enables subscription-based decentralized file downloads to the client nodes, where users may 3 Appeal 2009-007220 Application 11/123,758 schedule delivery of content over the network on a fee and non-fee basis (col. 3, ll. 32-35). 2. Server nodes and client nodes form extranets that are protected by firewalls, wherein the extranets are private networks that use the public Internet as its transmission system but require passwords to gain entrance (col. 3, ll. 47-52; Figs. 1A-B). 3. The client application allows the client node to authenticate other client nodes and to both receive content and serve content (col. 4, ll. 2-4). IV. ANALYSIS Appellant argues that “Schleicher describes a process of creating a ‘fingerprint’ for each file to be transmitted on a peer-to-peer network” wherein the fingerprint “allows a user to use the corresponding public key of the publisher of the file to authenticate the file” (App. Br. 7-8). Accordingly, Appellant contends that “the authentication process described in Schleicher verifies the identity of a user, but does not verify that a user is authorized to access the requested file, for example, by verifying that the user has a subscription arrangement with the content owner associated with the requested file” (App. Br. 8). The Examiner responds that “Schleicher is clearly disclosing authenticating the client node itself, and not only the content as applicant argues” (Ans. 4). The Examiner also points out that “Schleicher discloses using passwords to authenticate nodes” (id.) and that “Schleicher discloses a server node assists a client node to authenticate other client nodes” (Ans. 4- 4 Appeal 2009-007220 Application 11/123,758 5). Therefore, the Examiner finds that “Schleicher does disclose authenticating the requesting computer” (Ans. 5). Appellant’s contention that Schleicher does not “verify that a user is authorized to access the requested file, for example, by verifying that the user has a subscription arrangement with the content owner associated with the requested file” (App. Br. 8) is not commensurate in scope with the language of claim 1. In particular, claim 1 does not recite any “verifying that the user has a subscription arrangement with the content owner associated with the requested” as Appellant contends. In fact, though Appellant argues that “the authentication process described in Schleicher verifies the identity of a user,” (App. Br. 7-8), claim 1 does not preclude such verification of the user identity in addition to verifying the authorization of the user to access the content item. That is, claim 1 merely requires “verifying an authorization for the subscriber to access the content item” as specifically recited. We note that by arguing that Schleicher does not describe the claimed invention (App. Br. 7-8), Appellant appears to be arguing that individually, Schleicher does not anticipate the claimed features. However, the Examiner rejects the claims as being obvious over the combined teachings of the references, and the test for obviousness is not what each reference teaches but what the combined teachings would have suggested to one of ordinary skill in the art. See In re Merck, 800 F.2d 1091, 1097 (Fed. Cir. 1986). Schleicher discloses that users may schedule delivery of content over the network on a fee and non-fee basis (FF 1). Thus, contrary to Appellant’s contention, we find that Schleicher does suggest that the user has a subscription arrangement with the content owner associated with the 5 Appeal 2009-007220 Application 11/123,758 requested file in order to schedule the delivery of content on a fee or non-fee basis. Furthermore, Schleicher discloses server nodes and client nodes that form extranets protected by firewalls, wherein extranets require passwords to gain entrance (FF 2). In Schleicher, the client application allows the client node to authenticate other client nodes and to both receive content and serve content (FF 3). We find Schleicher’s firewall that requires passwords to gain entrance to comprise a firewall requiring authorization to access the content items upon entrance. Thus, we find no error in the Examiner’s conclusion that Schleicher at the least suggests verifying authorization for the subscriber to access the content item. Appellant admits in the Reply Brief that, in Schleicher, there is “a general authentication,” but adds that there is “no determination that a user is authorized to access a particular content item” (Reply Br. 2). However, such newly added argument is also not commensurate in scope with the specific recited language of claim 1. That is, claim 1 does not recite any “particular” content item. By arguing that Schleicher does not disclose that a “particular” content item is authorized to access, Appellant appears to be arguing that Schleicher does not suggest authorizing access only to a particular content item. However, claim 1 does not require any such access to “only” a “particular” content item, but merely that the content item is authorized for access. That is, claim 1 does not preclude the authorization of access to all content items including a particular content item. As discussed above, we find no error in the Examiner’s conclusion that Schleicher at the least suggests verifying authorization for the subscriber 6 Appeal 2009-007220 Application 11/123,758 to access the content item. In fact, even Appellant admits that Schleicher disclose a general authorization to access content items (Reply Br. 2). We find such general authorization to access content items to comprise authorization to access a particular content item in the accessed content items. Accordingly, we affirm the rejection of representative claim 1, and independent claims 36 and 41 falling therewith and claims 3-8 depending respectively from claim 1, under 35 U.S.C. § 103(a), as being unpatentable over the combined teachings of Tormasov and Schleicher. V. CONCLUSIONS AND DECISION We affirm the Examiner’s rejection of claims 1, 3-8, 36, and 41 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)(1)(iv). AFFIRMED peb KENYON & KENYON LLP ONE BROADWAY NEW YORK, NY 10004 7 Copy with citationCopy as parenthetical citation