Ex Parte DuBose

Patent Trial and Appeal Board

Apr 24, 2018

14503478 (P.T.A.B. Apr. 24, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/503,478 10/01/2014
14333 7590 04/26/2018
Meagher Emanuel Laks Goldberg & Liao, LLP
ONE PALMER SQUARE
SUITE 325
Princeton, NJ 08542
FIRST NAMED INVENTOR
Kreig DuBose
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.
CHTR/2013-01 3280
EXAMINER
CHEN,CAIY
ART UNIT PAPER NUMBER
2425
NOTIFICATION DATE DELIVERY MODE
04/26/2018 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):
molech@meagheremanuel.com
14333-docket@meagheremanuel.eom
tmeagher@meagheremanuel.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KREIG DUBOSE
Appeal2017-010596
Application 14/503,478 1
Technology Center 2400
Before THU A. DANG, JUSTIN BUSCH, and CATHERINE SHIANG,
Administrative Patent Judges.
SHIANG, Administrative Patent Judge.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner's
rejection of claims 1-15 and 17-20, which are all the claims pending and
rejected in the application. We have jurisdiction under 35 U.S.C. § 6(b ).
We affirm.
STATEMENT OF THE CASE
Introduction
According to the Specification, the present invention relates to
controlling third-party customer premises equipment (CPE) using a personal
1 According to Appellant, the real party in interest is Charter
Communications Operating, LLC. Appeal Br. 3.
Appeal2017-010596
Application 14/503,478
communications device, and more particularly to authenticating the third-
party CPE to a multiple-systems operator (MSO) using a personal
communications device such as a smart phone. See Spec. 1. Claim 1 is
exemplary:
1. A method of providing home subscription services via third-party
customer premises equipment (CPE), comprising:
by third-party CPE in communication with a guest device,
transmitting toward said guest device access information associated with an
authentication service configured to authenticate the guest device to a
multiple-systems operator (MSO);
in response to said guest device being authenticated to said MSO,
providing home subscription MSO services via said CPE in accordance with
subscriber settings and entitlement information received from said MSO.
References and Rejections
Claims 1, 5-11, 13-15, and 17-20 are rejected under 35 U.S.C.
§ I02(a)(l) as being anticipated by Lockett (US 2010/0319014 Al;
published Dec. 16, 2010).
Claims 2--4 are rejected under 35 U.S.C. § I03(a) as being
unpatentable over Lockett and An (US 2006/0026654 Al; published Feb. 2,
2006).
Claim 12 is rejected under 35 U.S.C. § I03(a) as being unpatentable
over Lockett and Ellis (US 2008/0010655 Al, published
Jan. 10, 2008).
ANALYSIS
We disagree with Appellant's arguments, and agree with and adopt
the Examiner's findings and conclusions in (i) the action from which this
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Application 14/503,478
appeal is taken (Final Act. 2-7) and (ii) the Answer (Ans. 2-10) to the extent
they are consistent with our analysis below.
Anticipation
On this record, the Examiner did not err in rejecting claim 1.
I
Appellant contends Lockett does not disclose the claimed "guest
device." See Appeal Br. 14--15. In particular, Appellant contends Lockett's
DVR does not constitute the claimed "guest device." Appeal Br. 15.
Appellant asserts because Lockett does not teach the claimed guest device, it
does not disclose:
third-party CPE in communication with a guest device,
transmitting toward said guest device access information
associated with an authentication service configured to
authenticate the guest device to a multiple-systems operator
(MSO),
as recited in claim 1. See Appeal Br. 14--15.
Appellant has not persuaded us of error. In response to Appellant's
arguments, the Examiner provides further findings showing Lockett
discloses the disputed claim limitations. See Ans. 7-9. In particular, the
Examiner determines in light of the Specification, the broadest reasonable
interpretation of the claimed "guest device" encompasses Lockett's hotel
server. See Ans. 7-8. The Examiner further determines Lockett's
multimedia device constitutes the claimed "third-party CPE," and Lockett's
DVR service constitutes the claimed "multiple-systems operator (MSO)."
See Ans. 8. The Examiner finds Lockett's Figure 36 and paragraphs 193,
194, 197, and 198 teach
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by third-party CPE in communication with a guest device,
transmitting toward said guest device access information
associated with an authentication service configured to
authenticate the guest device to a multiple-systems operator
(MSO),
as recited in claim 1. See Ans. 8. Appellant fails to respond to such
findings. Therefore, Appellant fails to show error in such findings. See In
re Baxter Travenol Labs., 952 F.2d 388,391 (Fed. Cir. 1991) ("It is not the
function of this court [ or this Board] to examine the claims in greater detail
than argued by an appellant, looking for [patentable] distinctions over the
prior art.").
Further, Appellant's arguments (Appeal Br. 14--15) are unpersuasive
because they are not directed to the Examiner's specific findings ( discussed
above).
Finally, Appellant's attorney arguments (Appeal Br. 14--15) are
unpersuasive because Appellant does not provide sufficient objective
evidence to support the assertions. See In re Geisler, 116 F.3d 1465, 1470
(Fed. Cir. 1997) ("attorney argument [is] not the kind of factual evidence
that is required to rebut a prima facie case of obviousness"). Meitzner v.
Mindick, 549 F.2d 775, 782 (CCPA 1977) ("Argument of counsel cannot
take the place of evidence lacking in the record.").
II
Appellant contends Lockett does not disclose
in response to said guest device being authenticated to said
MSO, providing home subscription MSO services via said CPE
in accordance with subscriber settings and entitlement
information received from said MSO,
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as recited in claim 1 ( emphases added). See Appeal Br. 16. In
particular, Appellant contends because Lockett does not disclose any
"guest device," it cannot disclose "guest device being authenticated to
said MSO." See Appeal Br. 16. Appellant asserts the cited portions
of Lockett "do not seem to contemplate any authentication." Appeal
Br. 16 ( emphasis omitted). Appellant argues in Lockett, the "viewing
preferences are retrieved from local equipment associated with the
DVR service user (i.e., a home DVR) and not 'received from said
MSO' as claimed." Appeal Br. 16.
Appellant has not persuaded us of error. In response to Appellant's
arguments, the Examiner provides further findings showing Lockett
discloses the disputed claim limitations. See Ans. 8-9. In particular, as
discussed above, the Examiner determines the claimed "guest device"
encompasses Lockett's hotel server. See Ans. 7-8. The Examiner finds
Lockett's paragraphs 194--198 teach
in response to said guest device being authenticated to said
MSO, providing home subscription MSO services via said CPE
in accordance with subscriber settings and entitlement
information received from said MSO,
as recited in claim 1 ( emphases added). See Ans. 8-9. Contrary to
Appellant's assertion (Appeal Br. 16), the Examiner finds the cited Lockett
passages disclose (i) authentication, and (ii) user's preference information
(the claimed "subscriber settings and entitlement information") is received
from the DVR service (the claimed "MSO"). See Ans. 8-9. Appellant fails
to respond to such findings. Therefore, Appellant fails to show error in such
findings. See Baxter Travenol Labs., 952 F.2d at 391.
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Further, Appellant's arguments (Appeal Br. 15-16) are unpersuasive
because they are not directed to the Examiner's above specific findings.
Finally, Appellant's arguments (Appeal Br. 15-16) are unpersuasive
because Appellant does not provide sufficient objective evidence to support
the assertions. See Geisler, 116 F.3d at 1470; Meitzner, 549 F.2d at 782.
Because Appellant has not persuaded us the Examiner erred, we
sustain the Examiner's rejection of independent claim 1, and independent
claims 15, 19, and 2 0 for similar reasons.
We also sustain the Examiner's rejection of corresponding dependent
claims 6-10, 17, and 18, as Appellant does not advance separate substantive
arguments regarding those claims.
Separately Argued Dependent Claims
Regarding dependent claim 5, Appellant merely asserts "there is
absolutely no teaching or suggestion within Lockett of an 'authentication
service application."' Appeal Br. 17. Appellant's general assertion is
unpersuasive of error. See 3 7 C.F .R. § 41.3 7 ( c )(1 )(iv) ("A statement which
merely points out what a claim recites will not be considered an argument
for separate patentability of the claim."); see also In re Lovin, 652 F.3d
1349, 1357 (Fed. Cir. 2011) (holding that "the Board reasonably interpreted
Rule 41.37 to require more substantive arguments in an appeal brief than a
mere recitation of the claim elements and a naked assertion that the
corresponding elements were not found in the prior art"). Therefore, and for
similar reasons discussed above with respect to claim 1, we sustain the
Examiner's rejection of dependent claim 5.
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Regarding dependent claims 11, 13, and 14, Appellant merely asserts:
Lockett does not disclose or suggest "providing home
subscription MSO services via said CPE comprises selectively
coupling said third-party CPE to an access network associated
with said MSO" or particular locations within such an access
network as claimed. This may be due to the fact that Lockett
has nothing to do with an MSO such as a cable television
company.
Appeal Br. 1 7.
Appellant's general assertion is unpersuasive of error. See
37 C.F.R. § 4I.37(c)(l)(iv); see also Lovin, 652 F.3d at 1357. Further,
contrary to Appellant's assertion, as discussed above, the Examiner finds-
and Appellant does not persuasively dispute-Lockett discloses the claimed
MSO. Therefore, and for similar reasons discussed above with respect to
claim 1, we sustain the Examiner's rejection of dependent claims 11, 13, and
14.
Obviousness
Regarding dependent claim 2, Appellant asserts the cited references
do not teach "wherein said third-party CPE and said guest device are in
wireless communication with each other." See Appeal Br. 18-19. In
particular, Appellant contends "the communication of FIG. 5 of An is
CPE/PE communication and not CPE/' guest device' communication."
Appeal Br. 18-19.
Because the Examiner relies on the combination of Lockett and An to
teach claim 2, Appellant cannot establish nonobviousness by attacking An
individually. See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
As discussed above with respect to claim 1, the Examiner finds-and
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Appellant fails to persuasively dispute-Lockett teaches "third-party CPE in
communication with a guest device." The Examiner finds-and Appellant
does not dispute-An teaches devices "are in wireless communication with
each other." See Final Act. 5; Ans. 9. Because Appellant does not dispute
the Examiner's rationale for combining the teachings of Lockett and An, the
Examiner correctly finds Lockett and An collectively teach "wherein said
third-party CPE and said guest device are in wireless communication with
each other," as recited in claim 2. Therefore, and for similar reasons
discussed above with respect to claim 1, we sustain the Examiner's rejection
of dependent claim 2.
Regarding dependent claims 3 and 4, Appellant merely asserts "An
like Lockett does not contemplate" or teach (i) "authentication of a 'guest
device"' and (ii) "a 'guest device' communicating with CPE," respectively.
Appeal Br. 19. As discussed above with respect to claim 1, the Examiner
finds-and Appellant fails to persuasively dispute-Lockett teaches "said
guest device being authenticated" and "third-party CPE in communication
with a guest device." Therefore, An does not need to separately teach those
limitations. As a result, and for similar reasons discussed above with respect
to claim 1, we sustain the Examiner's rejection of dependent claims 3 and 4.
Regarding dependent claim 12, Appellant advances the same
argument discussed above with respect to dependent claims 11, 13, and 14.
See Appeal Br. 1 7. As discussed above, that argument is unpersuasive of
error. Further, Appellant asserts:
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Locket [sic] and Ellis, alone or in combination, fail to teach or
suggest all elements of applicant's independent claim 1. As
such, since claim 12 depends from claim 1 all of the elements
of claim number 12 are also not taught or suggested by the
references.
Appeal Br. 19.
As discussed above, Appellant's arguments regarding claim 1 are
unpersuasive. Therefore, we also sustain the Examiner's rejection of
dependent claim 12.
DECISION
We affirm the Examiner's decision rejecting claims 1-15 and 17-20.
No time period for taking any subsequent action in connection with
this appeal may be extended under 3 7 C.F .R. § 1.13 6( a)( 1 )(iv). See
37 C.F.R. § 4I.50(f).
AFFIRMED
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