Ex Parte Goldhor et alDownload PDFPatent Trial and Appeal BoardDec 23, 201310664616 (P.T.A.B. Dec. 23, 2013) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte RICHARD S. GOLDHOR and DONALD J. HEJNA, JR. ____________ Appeal 2011-000289 Application 10/664,616 Technology Center 2400 ____________ Before MAHSHID D. SAADAT, KALYAN K. DESHPANDE, and MATTHEW R. CLEMENTS, Administrative Patent Judges. SAADAT, Administrative Patent Judge. DECISION ON REQUEST FOR REHEARING Appellants request rehearing of the September 4, 2013, Decision on Appeal (“Decision”), wherein we affirmed the rejection of claims 10-14 and 18 as being unpatentable over Gupta and Hoyer. We have reconsidered the Decision in light of Appellants’ arguments but, for the reasons given below, we are not persuaded any points were misapprehended or overlooked by the Board in our Decision therein. Appeal 2011-000289 Application 10/664,616 2 Appellants argue that our Decision misapprehended the teaching of Hoyer with respect to “determining the playback rate considering the measure of CPU availability” (Req. Reh’g 1). Appellants further assert that Hoyer’s display of CPU utilization by a server is not related to using CPU availability of a client device to determine a time-scale modification playback rate (Req. Reh’g 2-3). These arguments are unpersuasive because Appellants’ arguments in the Request, discussing CPU utilization by a server in contrast with using CPU availability of a client device, constitute new arguments which were not presented in the Appeal Brief. Appellants’ discussion of Hoyer in the Appeal Brief merely repeated various portions of Hoyer’s disclosure (Br. 12- 13) and concluded that “Hoyer et al. does not teach or suggest using CPU utilization for any purpose whatsoever other than to display it” (Br. 13). However, this argument was not presented in Appellants’ Appeal Brief and Appellants have not shown any cause as to why this issue was first raised in the Reply Brief. It is inappropriate for Appellants to discuss for the first time in a Request for Rehearing matters that could have been raised in the Appeal Brief. “The failure to raise all issues and arguments diligently, in a timely fashion, has consequences.” Ex parte Borden, 93 USPQ2d 1473, 1475 (BPAI 2010) (informative decision). Additionally, as stated on pages 3-4 of our Decision, we agree with the Examiner’s findings and conclusion that Hoyer’s display of CPU utilization indicates “a measure of” CPU availability to be considered for the system performance (see Ans. 6-7 (citing Hoyer, col. 7, ll. 9-22)). We also observe that Appellants’ argument drawing a distinction between a server and a client is unpersuasive since Gupta discloses that the time-scale Appeal 2011-000289 Application 10/664,616 3 modification is performed on a network computer “that can perform the functions of either server computer 10 or a client computer 11” (Gupta, ¶ [0036]). Appellants further argue that our Decision misapprehended the Examiner’s rationale for combining Gupta and Hoyer because routing to web servers is unrelated to the claimed method for playback of streaming media at a client device (Req. Reh’g 3-4). This argument is also unpersuasive because claim 10 merely requires “a measure of CPU availability,” rather than the actual “CPU availability” which is taught by Hoyer’s indication of CPU utilization. As explained at pages 3-4 of our Decision, Hoyer provides for a measure of CPU availability which, in addition to being displayed, is used to modify the configuration of the nodes of HAIS server 180 (see col. 7, ll. 10-22). Therefore, contrary to Appellants’ assertion (Req. Reh’g 4), one of ordinary skill in the art would have considered applying Hoyer’s use of such measurement to enhance playback in the network computer of Gupta, which is used to implement either a server or a client device (Gupta, ¶¶ [0014] and [0036]). Lastly, Appellants contend that our Decision misapprehended or overlooked the Examiner’s mistake in mapping the features of claims 12 and 14 to the identified portions of Gupta (Req. Reh’g 4-7). These arguments were addressed in our Decision and our analysis will not be repeated here. Based on the Examiner’s claim construction and analysis of the prior art teachings (see Ans. 7-8), which we adopted, we agreed with the Examiner that the proposed combination of Gupta and Hoyer teaches or suggests all the features of claims 12 and 14 (Decision 4-5). Therefore, we find no error in our Decision to agree with these findings and conclusions. Appeal 2011-000289 Application 10/664,616 4 DECISION Based on the foregoing, we have granted Appellants’ request to the extent that we have reconsidered our Decision, but we deny Appellants’ request to make any changes therein. 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). See 37 C.F.R. § 1.136(a)(1)(iv). DENIED msc Copy with citationCopy as parenthetical citation