Ex Parte Fishwick

Patent Trial and Appeal Board

Feb 24, 2014

11226149 (P.T.A.B. Feb. 24, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte NICHOLAS FISHWICK
____________

Appeal 2011-005481
Application 11/226,149
Technology Center 2400
____________

Before JOSEPH L. DIXON, JAMES R. HUGHES, and
ERIC S. FRAHM, Administrative Patent Judges.

DIXON, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2011-005481
Application 11/226,149

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STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from a rejection of claims
1-4 and 7-25. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

INVENTION
The invention is directed to managing and delivering multimedia data
in queues (Spec. ¶ [0002]). Claim 1, reproduced below, is illustrative of the
claimed subject matter:
1. A system, comprising:

a multimedia queue manager implemented in a computer-
readable medium and to execute on a processing device; and

a plurality of queues implemented in a computer-readable
medium, the multimedia queue manager is configured to
manage the queues and each queue is associated with a
subscriber, and the multimedia queue manager is configured to
schedule broadcasts of selective multimedia and to inform
subscribers via entries in their corresponding queues of the
broadcasts and to inform subscribers via their respective queues
of predicted availability of particular multimedia identified in
the entries of the queues, at least some of the particular
multimedia identified in the entries of the queues are not
available and are predicted to be available within the queues
and the queues also provide a certain date and time when others
of the particular multimedia are to be available for recording,
and the multimedia queue manager is further configured to
update the corresponding entries when a firm schedule becomes
known and to update the corresponding entries to inform the
subscriber of any changes made to the predicted availability.

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REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Berenson

Sarkinen

Stuckman

Tsukidate

Cook

Boccon-Gibod

Hastings
US 2003/0023504 A1

US 2003/0063562 A1

US 2004/0111756 A1

US 2004/0109675 A1

US 2004/0187160 A1

US 2005/0149987 A1

US 7,403,910 B1
Jan. 30, 2003

Apr. 3, 2003

June 10, 2004

June 10, 2004

Sept. 23, 2004
(filed Mar. 17, 2003)

July 7, 2005
(filed Dec. 24, 2003)

July 22, 2008
(filed June 18, 2001)

REJECTIONS
Claims 1-4 and 7-10 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Cook, Sarkinen, Stuckman, and Boccon-Gibod
(hereinafter “Boccon”).
Claims 11 and 12 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Cook, Sarkinen, Stuckman, Boccon, and Hastings.
Claim 13 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Cook, Sarkinen, Stuckman, Boccon, and Tsukidate.
Claims 14 and 15 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Cook, Tsukidate, Hastings, and Boccon.
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Claims 16-19 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Cook, Tsukidate, Hastings, Boccon, and Berenson.
Claim 20, 21, and 23-25 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Cook, Sarkinen, and Tsukidate.
Claim 22 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Cook, Sarkinen, Tsukidate, and Berenson.

ANALYSIS
Claims 1-4 and 7-13
Appellant contends “[n]one of the cited references teach ‘inform[ing]
subscribers via their respective queues of predicted availability of particular
multimedia identified in the entries of the queues . . . [;]’ or ‘identifying
within at least one entry of the queue a prediction . . .’” as recited in claims 1
and 8 (App. Br. 12) (alteration in original).
We first note that the disputed claim 1 limitation, “the multimedia
queue manager is configured to . . . inform subscribers . . . of a predicted
availability of particular multimedia,” merely recites an intended use for the
claimed “multimedia queue manager” and more generally the “system.”
“Claim scope is not limited by . . . claim language that does not limit a claim
to a particular structure.” MPEP § 2111.04. Nevertheless, even if we give
weight to this limitation, we agree with the Examiner’s conclusion (Ans. 23-
24) that Stuckman and Boccon collectively disclose the “predicted
availability” feature of claim 1, and similar feature of claim 8.
We agree with the Examiner’s reasonably broad interpretation of
“predicted availability” as a statement of the future availability of a program
that is subject to change (see Ans. 24-25). Stuckman discloses a video
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distribution service that comprises “presenting a list of video programs 26
that can be downloaded” to a customer’s digital video recorder (Stuckman,
¶ [0039]).
The list of video programs 26 identifies the video programs 12
cached at the video server 10, the video programs 13 accessible
by the service but stored elsewhere, and video programs 30
which are not yet available but will be made available in the
future. . . . Video programs 30 which are not yet available
include an associated date of download availability in the list
26.

(Id.) (emphasis added). Thus, Stuckman discloses informing a customer of a
date when a program will become available for download in the future.
Boccon discloses using a personal video recorder to receive programming
where
Personal video recorder 100 also contains a telephone modem
. . . that enables personal video recorder 100 to download
program guide information and to allow the user to order
programs through personal video recorder 100 using remote
control 112. Generally, a telephone call is placed periodically
to allow personal video recorder 100 to update program guide
information. This enables personal video recorder 100 to
automatically correct for changes in the programming
scheduling.

(Boccon, ¶ [0024]). Here, Boccon discloses that program guide information
can be subject to change. One of ordinary skill in the art would have
understood, in view of Boccon, that Stuckman’s future availability date is a
“predicted availability” as recited in claim 1 because intervening
circumstances may cause a change to the availability of a program that is not
yet available. That is, if a program availability date is subject to change, as
Boccon suggests a future programming date can be, and as would be the
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case for a program which is not yet available for broadcast as in Stuckman,
then the date is a “predicted availability” under the broadest reasonable
sense of the term as used in claim 1.
Appellant’s arguments that Stuckman’s date of download availability
is “a date certain when a download can be achieved” (App. Br. 12) and
Boccon’s program guide is a “firm schedule” and not a “predicted schedule”
(App. Br. 13), and thus, neither references discloses a “predicted
availability” as recited in claim 1, is not persuasive. Even if the intent of a
broadcaster in creating a program schedule is to provide a user with a
definite time for download of a program, Boccon shows that what Appellant
refers to as a “firm schedule” can be subject to change. Claim 1 is absent
any specific details or algorithms regarding how a prediction is made, and
thus, it is reasonable to construe the claim 1 term “predicted availability”
broadly to encompass a future date subject to change. For the reasons
mentioned above, Stuckman and Boccon collectively disclose this limitation.
We are therefore not persuaded that the Examiner erred in rejecting
claim 1, claim 8 for the same reasons discussed above, and claims 2-4, 7,
and 9-13 not specifically argued separately.

Claims 14-19
Appellant contends “the proposed combination fails to teach or
suggest any notion of ‘discontinuous and fragmented’ multimedia
selections” as recited in claim 14 (App. Br. 15).
We agree with the Examiner’s reasonably broad interpretation of
“discontinuous” as “marked by breaks or interruption” (Ans. 28). We
disagree with Appellant’s assertion that the term “discontinuous” means
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“lack of sequence or order” because nothing in claim 14 specifies that the
sub-broadcasts are required to be out of order. Rather, “discontinuous”
relates only to a lack of continuity and does not imply changing the order of
things.
Boccon discloses
A user indicates a desired program and indicates that he or she
desires to record every episode. This selection is performed
either through use of the programming guide or by designating
a title, as previously described. . . . For example, a user may
enjoy a particular series, such as “Everybody Loves Raymond.”
The user could select “Everybody Loves Raymond” from the
programming grid, and elect to record all new episodes.
Personal video recorder 100 would automatically review the
programming grid during the daily download, and record any
new episodes of “Everybody Loves Raymond” that are aired.

(Boccon, ¶ [0027]). We agree with the Examiner (Ans. 18-19, 27-28) that,
based on the claim interpretation mentioned above, Boccon’s disclosure of
selecting a series by title for recording future episodes of that series meets
the limitation of “the multiple recordings are associated with a series of sub-
broadcasts that are discontinuous and fragmented and when assembled
represent the single given multimedia selection,” as recited in claim 14.
We are therefore not persuaded that the Examiner erred in rejecting
claim 14, and claims 15-19 not specifically argued separately.

Claims 20-25
Appellant contends “the proposed combination fails to show or
suggest any notion of ‘developing a schedule’ for with [sic] a ‘broadcaster’”
(App. Br. 14).
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Cook discloses “methods and systems for providing video on demand.
From the perspective of a customer of the video-on-demand service, these
embodiments permit the customer to specify a video segment that he wishes
to watch and to have that video segment transmitted to his premises at the
time he desires” (Cook, ¶ [0005]). This is accomplished through
The interaction between the user and the network . . . in
the form of interaction between the customer premises
equipment 124 and one of the node terminals 120, usually
through an access network . . . . Examples of information that
may be transmitted from the node terminals 120 to the customer
premises equipment 124 include the selected video segment
itself . . . . Examples of information that may be transmitted
from the customer premises equipment 124 to the node terminal
120 include selection information to identify a selected video
segment . . . instructions that may be transmitted by the user as
part of an interactive video programming, and the like. . . .

FIG. 2 provides a block diagram that illustrates a
structure for the node terminal 120 in an embodiment. One or
more content-transfer servers 204 are provided, each of which
is a module configured functionally to load a copy of a video
segment and generate multiple streams from that copy. . . . The
number of content-transfer servers 204 that may comprised by
the node terminal 120 may depend on such factors as the
capacity needs for portions of the system associated with the
corresponding node or the number of simultaneous broadcast
channels. The multiple streams output by the content-transfer
server 204 are routed by a routing network 208 to a plurality of
ports 212, with the mapping from the server 204 to the ports
212 being determined in accordance with customer
programming requests.

(Cook, ¶¶ [0024]-[0025]). Thus, Cook discloses a user interacting with a
network node comprising multiple broadcast channels in order to determine
when to transmit user-selected programming to the user’s customer premises
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equipment. We agree with the Examiner (Ans. 12, 25-26) that this
disclosure meets the limitation of “interacting with a broadcast schedule of a
broadcaster for purposes of developing a schedule for the particular ones of
the selections, the schedule is for a broadcast that is made by the broadcaster
for the particular ones of the selections,” as recited in claim 20.
Appellant characterizes the Examiner’s position as follows: “The
Examiner’s position is that Video on Demand (VOD) technology alleviates a
need for any schedule. So, Applicant believes that the Examiner is asserting
that VOD technology is somehow better and improved over what Applicant
has claimed and thus the element of a schedule is irrelevant?” (App. Br. 14).
We disagree with this characterization because the Examiner asserts that
Cook’s video on demand system meets the claim limitations at issue, not that
Cook’s invention is superior to the claimed invention, or that the “broadcast
schedule” limitation may be read out of claim 20 (see Ans. 12, 25-26). The
Examiner merely points out that Cook’s disclosure of interactively
developing a broadcast schedule is an improvement over prior
predetermined broadcast schedules (see id.). It is this interactive feature of a
developing a broadcast schedule that the Examiner relies on in rejecting
claim 20 (see id.).
We are therefore not persuaded that the Examiner erred in rejecting
claim 20, and claims 21-25 not specifically argued separately.

CONCLUSION
The Examiner did not err in rejecting claims 1-4 and 7-25 under
35 U.S.C. § 103(a).

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DECISION
The Examiner’s decision rejecting claims 1-4 and 7-25 is affirmed.
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). See
37 C.F.R. § 41.50(f).

AFFIRMED

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