Ex Parte Gaebel et al

Patent Trial and Appeal Board

Jan 24, 2018

11186452 (P.T.A.B. Jan. 24, 2018)

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.
11/186,452 07/20/2005 Thomas M. Gaebel JR. TWAR.024A 6159
27299 7590 01/25/2018
GAZDZINSKI & ASSOCIATES, PC
16644 WEST BERNARDO DRIVE
SUITE 201
SAN DIEGO, CA 92127
EXAMINER
GEE, ALEXANDER
ART UNIT PAPER NUMBER
2425
MAIL DATE DELIVERY MODE
01/25/2018 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 THOMAS M. GAEBEL JR., REMI RIEGER,
and PAULD. BROOKS1
Appeal 2017-003562
Application 11/186,452
Technology Center 2400
Before DAVID M. KOHUT, KAMRAN JIVANI, and
SCOTT E. BAIN, Administrative Patent Judges.
KOHUT, Administrative Patent Judge.
DECISION ON APPEAL
Appellants seek our review, under 35 U.S.C. § 134(a), of the
Examiner’s final rejection of claims 17—25 and 66—70.2 We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Appellants indicate the real party in interest is Time Warner Cable
Enterprises, LLC. App. Br. 1.
2 Claims 1—16, 26—57, 60—65, and 72—86 are canceled. Claims 58, 59,
and 71 are withdrawn.
Appeal 2017-003562
Application 11/186,452
INVENTION
“The present invention relates generally to the field of network service
and content delivery and utilization, and specifically in one aspect to
accurately delivering such services and content to particular subsets or
groupings within the subscriber base of a cable television network.” Spec. 1,
11. 8-11.
Independent claims 17 and 66 are reproduced below.
17. A consumer premises equipment (CPE) adapted for use
within a cable network, comprising:
an interface configured to receive encoded content signals from
said network;
processing apparatus operatively coupled to said interface and
adapted to decode said encoded signals received via said
interface; and
at least one computer program stored on a computer readable
medium executable by said processing apparatus, said at least
one program comprising a plurality of instructions which are
adapted to, when executed:
generate an upstream request for at least one program channel for
transmission to a server entity of said network, said upstream
request being configured to cause said server entity to selectively
replace a currently provided broadcast stream with a requested
broadcast stream to said CPE;
generate a unique identification parameter;
run at least one algorithm configured to anonymize said unique
identification parameter; and
provide said anonymized unique identification parameter in said
upstream request, said parameter being directly or indirectly at
least part of a basis for said selective replacement by said server
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entity and once provided to said server, said parameter not being
traceable to a specific user account.
66. A method of selectively delivering content to a plurality of
consumer premises equipment (CPE) in a content distribution
network comprising at least one server disposed at a hub of said
network, and said plurality of CPE in direct or indirect signal
communication with said server, said method comprising:
establishing a plurality of subsets of said plurality of CPE and a
plurality of coded variables representative of respective ones of
said plurality of subsets;
determining a relationship between an individual one of said
plurality of subsets and at least one CPE, said at least one CPE
being identified by cryptographically hashed identification
information;
assigning to said at least one CPE an individual one of said
plurality of coded variables based on said relationship,
information regarding said individual one of said plurality of
subsets to which said CPE is related being extracted from said
individual one of said coded variables only upon decoding
thereof;
receiving a request for content from said at least one CPE, said
request comprising said cryptographically hashed identification
information and said assigned coded variable; and
in response to receiving said request, utilizing said assigned
coded variable for identifying and transmitting subset-specific
content to a local node servicing said at least one CPE;
wherein said identity of said at least one CPE remains
cryptographically hashed throughout transmission of said
subset-specific content, thereby maintaining anonymity of said
at least one CPE.
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REJECTIONS
The Examiner rejects claims 66—68 and 70, under 35 U.S.C. § 103(a),
as obvious over Schiller (US 2002/0007491 Al; Jan. 17, 2002), Eldering
(US 2004/0148625 Al; July 29, 2004), and Ramaswamy
(US 2010/0211967 Al; Aug. 19, 2010). Final Act. U-6 (Oct. 6, 2015).
The Examiner rejects claim 69, under 35 U.S.C. § 103(a), as obvious
over Schiller, Eldering, Ramaswamy, and Black (US 2005/0216933;
Sept. 29, 2005). Final Act. 7.
The Examiner rejects claims 17, 18, 20, 21, and 25, under
35 U.S.C. § 103(a), as obvious over Schiller and Ramaswamy. Final Act. 7—
9.
The Examiner rejects claim 19, under 35 U.S.C. § 103(a), as obvious
over Schiller, Ramaswamy, and Robbins (US 5,796,423; Aug. 18,
1998). Final Act. 10.
The Examiner rejects claims 22—24, under 35 U.S.C. § 103(a), as
obvious over Schiller, Ramaswamy, and Eldering. Final Act. 10-11.
ANALYSIS
OBVIOUSNESS REJECTION OF CLAIMS 66-68 and 70
OVER SCHILLER, ELDERING, AND RAMASWAMY
Claims 66—68 and 70 stand rejected as obvious over Schiller,
Eldering, and Ramaswamy. We select claim 66 as representative. See 37
C.F.R. 41.37(c)(l)(iv) (Jan. 2012) (available at Manual of Patent Examining
Procedure (MPEP), 9th Ed., Rev. 7, App’x. R (Oct. 2015)).
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Claim 66 recites CPEs (“customer premise equipment”) and subsets
thereof, each subset represented by a respective CV (“coded variable”).3
Claim 66 further requires that a CPE’s content request includes a
crypto-hashed ID (“identification”) of the CPE and the CV of the respective
CPE subset. Claim 66 additionally requires that a request’s included CV is
used to select CPE subset-specific content.
The Examiner finds Schiller teaches or suggests: the claimed CPEs,
IDs (for CPEs), CPE subsets, and CVs (for the subsets) by describing STBs
(set-top boxes), STB IDs, assigning of each STB to a plant node, and plant
node IDs; and the claimed content request and response by describing a
VOD (video-on-demand) request and response. Final Act. 4—5 (citing
Shiller || 21—22, 26, 28); see also Ans. 2—3. The Examiner finds Eldering
teaches or suggests the claimed use of the CV (to select CPE-specific
content) by describing STB zip codes used to group STBs and select
respective content. Final Act. 5 (citing || 35—36, 59-63; Figs. 2A—B); see
also Ans. 3. The Examiner finds Ramaswamy teaches or suggests the
claimed crypto-hashing of the ID by describing encryption of an STB
ID. Final Act. 5—6 (citing || 47—52; Fig. 5; abst.); see also Ans. 3^4.
A. Claimed CVs
Appellants argue Eldering does not teach or suggest the claimed CVs
because the cited zip codes do not encode information. App. Br. 4—6. In
support, Appellants contend “Eldering merely discloses associating ZIP
codes with median home and starter home prices” and “the information
3 CPEs and CVs reference a plurality. CPE’s and CV’s reference
possession.
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. . . is seemingly provided without any coding.” Id. at 4. Appellants further
contend “reading a zip code is not reasonably considered ‘decoding’ of
anything.” Id. at 5.
The Examiner responds that Eldering teaches a zip code can identify
geographically grouped STBs. Ans. 10; see also Final Act. 5 (finding zip
codes are demographic). The Examiner further responds that using STB zip
codes to demark and determine respective subscriber groups constitutes
encoding and decoding. Id.
Appellants reply that the Examiner’s findings fail to show Eldering’s
system designates the zip code of an STB and, thus, does not reach the
claimed assigning of a CV to a CPE. Reply Br. 2; see also App. Br. 4
(contending a zip code’s geographic relationship to a STB does not assign
the zip code to the STB). Appellants further reply that the Examiner’s
reading of the claimed CVs on zip codes is inconsistent with the following
passage of Appellants’ Specification:
The present embodiment of the invention also generates a
so-called “opaque” variable . . . comprising], in one variant, a
non-specific multi-bit binary coded variable that contains
intrinsic information relating to the relevant
CPE/subscriber. The opaque variable can be parsed if desired,
and can convey information relating to membership in one or
more groups. The variable may be generated algorithmically
. . . , or in hardware or firmware, or combinations thereof. The
information reflected in the variable may be geographic in nature
(e.g., relating to postal zip code, telephone area code/exchange,
etc.) .... The variable is considered opaque since it is coded
(whether encrypted or not), and hence conveys no discemable
information in isolation; i.e., unless correlated with information
known to the coding entity (decoding alone is not sufficient). It
is also not human readable.
Spec. 35,11. 3—21; see Reply Br. 3 (quoting Spec. 35,11. 18—21).
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Appellants’ above arguments are not commensurate with claim 66’s
scope. The above arguments assert the claimed assigning of CVs to
respective CPE subsets precludes a geographic, and thereby preset,
correlating of STBs to zip codes. Reply Br. 2; App. Br. 4. However, the
claimed assigning of a CV to a CPE is not so restricted, but rather merely
“based on” an undescribed “relationship” of the CPE and its CPE
subset. Thus, we agree with Examiner (Ans. 9—10; Final Act. 5) that the
Schilling-Eldering combination teaches the disputed limitation because the
combination attributes a zip code (assigns a CV) to a STB (to a CPE) based
on the STB being within a respective zip code region of STBs (based on a
relationship of the CPE to its CPE subset).
The above arguments also assert the Specification’s above-quoted
description of opaqueness (Spec. 35,11. 3—21) must be read into the claimed
CV. Appellants specifically point to the Specification’s statement that an
opaque “variable is considered opaque since it is coded” (Spec. 35,1. 18 (see
also supra, block quote)); see also Reply Br. 3 (emphasizing this
statement). This statement does not show a clear and unmistakable intent to
define the claimed CV as opaque and thereby disclaim the summarized
invention’s assigning of zip codes to CPEs (see Spec. 11,11. 18—21) by
reading the “optional ‘opaque’ variable” (id. at 19,11. 11—14) into the
claim. See Thornerv. Sony Computer, 669 F.3d 1362 (Fed. Cir. 2012) (“To
constitute disclaimer, there must be a clear and unmistakable disclaimer.”)
(quoted, with approval, by In re Lockwood, 679 F. App’x 1021, 1027
(Fed. Cir. 2017) (unpublished); see also In re Papst Licensing Digital
Camera Patent Litigation, 778 F.3d 1255, 1270 (Fed. Cir. 2015) (“We do
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not generally construe the claims of a patent to exclude a preferred
embodiment.”).
Furthermore, even if we were to find the claimed CV is specifically
defined as opaque, Appellants’ argument would still fail to show a zip code
is not also opaque. Applying the description of opaqueness (Spec. 35,11. 3—
21), we note a zip code arguably:
(a) “contains intrinsic information” (geographic information);
(b) is “parsed [to] convey information relating to membership
in one or more groups” (e.g., 22### is parsed and
correlated to Virginia counties near the District of
Columbia);
(c) is “generated algorithmically” (the numerals are
written/read left-to-right with increasing geographic
granularity);
(d) “may be geographic in nature (e.g., relating to postal zip
code . . .)”;
(e) is “coded (whether encrypted or not)” (it’s a zip “code”
regardless of encryption);
(f) “conveys no discemable information in isolation; i.e.,
unless correlated with information known to the coding
entity (decoding alone is not sufficient)” (even parsed zip
codes are meaningless until the parsed numbers are
correlated to geographic regions)
(g) “is also not human readable” (expresses nothing until
correlated, e.g., a parsed 22### does not express a quantify
of twenty-two, twenty-second, etc.).
Even so, we note Appellants’ argument is untimely and thus
waived. See Ex parte Borden, 93 USPQ2d 1473, 1474 (BPAI 2010)
(informative) (“Any bases for asserting error, whether factual or legal, that
are not raised in the principal brief are waived.”). Neither the Appeal Brief
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nor any of Appellants’ many responses to office actions contend the claimed
CV is opaque.
Thus, we do not find Appellants’ arguments regarding the claimed
CVs persuasive.
B. Claimed Content Request
Appellants argue Eldering does not teach or suggest the claimed
content request’s inclusion of the CV because the cited zip codes are
“collected by the network irrespective of subscriber requests for
content.” App. Br. 6 (orig. emph.). Appellants further argue the Examiner
does not address the claimed use of the content request’s CV to identify CPE
subset-specific content. Id. at 7.
Appellants’ arguments fail to address the Examiner’s reliance on the
Schiller-Eldering combination—not Eldering alone—to reach the claimed
content request’s inclusion of the CV and claimed use thereof to identify
CPE subset-specific content. The Examiner relies on Schiller’s description
of the VOD request as including a plant ID. Final Act. 4—5 (citing Schiller
1126, 28); see also Ans. 2—3, 10. In view of Eldering, the Examiner
modifies Schiller’s VOD request to include the requesting STB’s zip code
and thereby associate the request with zip code-specific content. Final
Act. 5 (citing Eldering H 35—36); Ans. 3, 10-11.
Thus, we do not find Appellants’ arguments regarding the claimed
content request persuasive.
C. Incompatibility of the References
Appellants argue the applied art cannot teach or suggest the claimed
ID’s “remain[ing] cryptographically hashed throughout transmission of said
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subset specific content [to a local node servicing the CPE]”
(claim 66). App. Br. 7—8. In support, Appellants contend an artisan would
not modify Schiller’s system to maintain STB anonymity during content
delivery because the headend must access the VOD request’s included STB
ID to deliver content. Id.
Appellants’ argument fails to address the Examiner’s specific
combination of the Schiller and Ramaswamy references. The Examiner
proposes that, to protect STB IDs from third parties in view of Ramaswamy,
Schiller’s subscriber ID is and remains crypto-hashed while transmitted
between the STB and a headend. Ans. 11. Further, the Examiner finds that
the encrypted ID is transmitted from a STB to the headend—and
extracted/decrypted thereby—for purposes of delivering the
content. Id. And, the encrypted ID is transmitted from the headend to the
STB’s local node—and extracted/decrypted thereby—for purposes of
relaying/delivering the content. Id. Thus, the Examiner concludes that
Schiller’s subscriber ID is encrypted during transmission from the headend
to the STB’s local node, but remains available to the headend in decrypted
form. Id.
Thus, we do not find Appellants’ argument regarding the combination
of the references persuasive.
D. Conclusion
For the foregoing reasons, we sustain the obviousness rejections of
claims 66—68 and 70.
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OBVIOUSNESS REJECTION OF CLAIM 69 OVER
SCHILLER, ELDERING, RAMASWAMY, AND BLACK
Appellants argue that claim 69 is allowable for the same reasons as
with respect to its independent claim 66. See App. Br. 8—9. For the reasons
discussed above with respect to claim 66, those arguments are not
persuasive. Accordingly, we sustain the Examiner’s obviousness rejection
of claim 69.
OBVIOUSNESS REJECTION OF
CLAIMS 17, 18, 20, 21, AND 25 OVER
SCHILLER AND RAMASWAMY
Claims 17, 18, 20, 21 and 25 stand rejected as obvious over Schiller
and Ramaswamy. We select claim 17 as representative. See 37
C.F.R. 41.37(c)(l)(iv) (Jan. 2012).
Appellants argue Schiller does not teach or suggest claim 17 ’s
following limitation: “upstream request being configured to cause said
server entity to selectively replace a currently provided broadcast stream
with a requested broadcast stream to said CPE.” App. Br. 9-10. In support,
Appellants contend:
Schiller merely discloses a VOD application on the set top box
enabling it to request programs from the hub (see paragraphs
[0026]—[0028]). . . . [Transmissions by the video server to the
set top box are provided, and then terminated at the completion
of the program. No replacement of content . . . occurs in
S chiller [.]
App. Br. 9.
We are unpersuaded by Appellants’ argument because the claimed
upstream request encompasses a bare-bones VOD request. Under the
broadest reasonable interpretation, the disputed limitation’s “configured to
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cause” language (“upstream request being configured to cause said server
entity to selectively replace . . .”) reads on a CPE content request that merely
identifies the CPE and requested content. Appellants’ Specification teaches
that such a request does not require further configuring to cause an upstream
replacement of streaming content. See infra. For example, Appellants’
Specification discloses a “join request” that merely conveys a CPE’s ID and
channel request in an upstream message format, but nonetheless causes an
upstream replacement of streaming content based on the conveyed ID and
channel. Spec. 32,11. 10-13; see also App. Br. 1—2 (reading the claimed
upstream request on Spec. 32,11. 9-21). Indeed, Appellants’ Specification
repeatedly teaches that a content request’s mere identifications of the
requesting CPE and requested content can, alone, prompt a BSA (broadcast
switched architecture) server to replace the CPE’s currently received
broadcast stream. Id. at 32,1. 25—33,1. 1; see also id. at 18,1. 21—19,1. 5;
29,11. 16-20; 40,1. 25^11,1. 3; 41,11. 8-13, 23-24; 46,11. 13-20.
Considering the foregoing findings, the claimed upstream request
encompasses a bare-bones VOD request, which may or may not actually
cause a STB’s connected server to replace current streaming (depending on
the server) but is in either event “configured to cause” such
replacement. We, accordingly, find Schiller’s VOD request teaches the
claimed upstream request.
Appellants also argue:
The invention of Claim 17 extends or leverages the [BSA]
functionality to cause substitution of programming based on the
recited “anonymized unique identification
parameter”. Schiller’s termination/new program necessarily
considers a beginning and/or end of a given program stream
(“Once the program is complete, the transmission may be
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terminated. . .”), whereas such factors are not part of a switched
digital (replacement) paradigm as set forth in Claim 17.
Reply Br. 4 (orig. emph). We are unpersuaded because claim 17 does not
require inclusion of the CPE within a BSA network, much less require an
actual switching of currently broadcasted content. Claim 17’s disputed
limitations recite a CPE’s upstream request that is merely “configured to
cause [an unclaimed] server entity to selectively replace a currently provided
broadcast stream” and includes a “unique identification parameter being
directly or indirectly at least part of a basis for said selective
replacement”. For the above-discussed reasons, these limitations read on a
content request that merely identifies the requesting STB and requested
content. The argument does not show the applied art fails to teach or
suggest such a request.
For the foregoing reasons, we sustain the obviousness rejections of
claims 17, 18, 20, 21, and 25.
OBVIOUSNESS REJECTION OF CLAIM 19 OVER
SCHILLER, RAMASWAMY, AND ROBBINS
We also sustain the Examiner’s obviousness rejection of claim 19.
Appellants argue that claim 19 is allowable for the same reasons as its
independent claim 17. See App. Br. 11. For the reasons discussed above
with respect to independent claim 17, those arguments are not persuasive.
OBVIOUSNESS REJECTION OF CLAIMS 22-24
OVER SCHILLER, RAMASWAMY, AND ELDERLING
Claims 22—24 stand rejected as obvious over Schiller, Ramaswamy,
and Eldering. Claim 22 depends from claim 17 and adds: “said basis for
said selective replacement further comprises a second parameter configured
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to place said CPE within a first subset of all CPE on said network.”
Claim 23 depends from claim 22 and adds: “said basis for said selective
replacement further comprises a third parameter configured to place said
CPE within a second subset of all CPE on said network.” Claim 24 depends
from claim 22 and adds: “said second parameter comprises a parameter
related to a geographic location of said CPE.”
As discussed, Schiller teaches base claim 17 ’s configuring of an
upstream request to include an identification parameter and to cause, based
on the parameter, selective replacement of a current broadcast stream. Supra
at 13—15. The Examiner reaches the above second and third parameters—
each forming a part of “said basis for said selective replacement” (claims 22
and 24)—by modifying Schiller’s system in view of
Eldering. Ans. 13. Reaching the second parameter (claims 22 and 23), the
VOD request further includes the STB’s zip code for tailoring of the new
content. Ans. 13. Reaching the third parameter (claim 24), the VOD request
further includes the STB subscriber’s income for tailoring of the new
content. Id.
Appellants argue:
[N]one of the art. . . teaches or suggests selectively replacing a
currently provided broadcast stream with a requested broadcast
stream to the CPE[. T]hus, one cannot reasonably assert that the
art of record teaches or suggest the features of Claims 22—24,
which expand on the selective replacement feature of Claim 17.
App. Br. 12. We are unpersuaded because, for the reasons discussed supra
with respect to claim 17, dependent claims 22—24 also do not require
inclusion of the CPE within a BSA network; much less require a
BSA-selective replacement of currently broadcasted content.
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Claims 22—24, rather, require a CPE upstream request “configured to
cause” such selective replacement (claim 17), which is based on the claimed
ID parameter (claim 17) and further based the second parameter (claims 22
and 23) or second and third parameters (claim 24). For the above-discussed
reasons, Appellants’ Specification confirms the claimed ID parameter
encompasses a content request’s mere identification of the requesting STB
because a content request and included STB identification are sufficient to
cause a BSA network’s replacement of the content broadcast to the
identified STB. Supra at 13 (citing to the Specification). Appellants’
Specification further confirms the claimed second and third parameters need
not be part of the claimed upstream request but can, rather, be derived from
the content request’s STB identification (e.g., if mapped to parameters via
table-data stored by network servers). Spec. 18,1. 21—19,1. 9; 29,11. 16—26;
41 1. 30-42,1. 2. In sum, Appellants’ Specification confirms a content
request and included STB identification are alone sufficient to switch
content based on that STB identification and additional parameters (mapped
to the STB).
Claims 22—24 thus, like claim 17’s upstream request, read on a VOD
request that states only the STB’s ID and requested content. Appellants’
Specification confirms such a bare-bones request is “configured to cause
said server entity to selectively replace a currently provided broadcast
stream” (claim 17), where the selective replacement is based on the STB’s
ID (the claimed ID parameter) and additional parameters derived in-network
from the ID (the claimed second and third parameters). The VOD request
may or may not actually cause the STB’s connected server to selectively
replace current streaming (depending on the server), but is in either event
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“configured to cause” such a selective replacement based on parameters as
claimed.
For the foregoing reasons, we sustain the obviousness rejection of
claims 22—23.
DECISION
We affirm the rejection of claims 17—25 and 66—70.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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