Ex Parte Hunt

Patent Trial and Appeal Board

Sep 15, 2016

13166693 (P.T.A.B. Sep. 15, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/166,693 06/22/2011
108911 7590 09/19/2016
Artegis Law Group, LLP I Netflix
7710 Cherry Park Drive Suite T #104
Houston, TX 77095
FIRST NAMED INVENTOR
NeilD.HUNT
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.
NETF/0054 6442
EXAMINER
CHACKO, JOE
ART UNIT PAPER NUMBER
2456
NOTIFICATION DATE DELIVERY MODE
09/19/2016 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):
algdocketing@artegislaw.com
kcruz@artegislaw.com
mmccauley@artegislaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte NEIL D. HUNT
Appeal2015-004643
Application 13/166,693
Technology Center 2400
Before JOHNNY A. KUMAR, TERRENCE W. McMILLIN, and
KAMRAN JIVANI, Administrative Patent Judges.
KUMAR, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner's
Final Rejection of claims 1-20, which constitute all the claims pending in
this application. We have jurisdiction under 35 U.S.C. § 6(b).
Appeal2015-004643
Application 13/166,693
Exemplary Claim
Exemplary claim 1 under appeal reads as follows (emphasis and
bracketing added):
1. A method for deferred license retrieval when starting to
stream digital media content, the method comprising:
[A.] receiving a playback selection for a digital media content
title;
[B.] retrieving one or more intervals of a fast start data stream
comprising a sequence of intervals that encode an unprotected
portion of data of the digital media content title;
[C.] requesting a license for the digital media content title that
authorizes playback of a protected data stream comprising a
sequence of intervals that encode protected portions of the data
of the digital media content title;
[D.] identifying a transition point between the fast start data
stream and the protected data stream based on a first interval
boundary between adjacent intervals of the fast start data stream
and a corresponding second interval boundary between adjacent
intervals of the protected data stream; and
[E.] playing at least one of the one or more intervals of the fast
start data stream before the license for the digital media content
title is acquired.
References and Re} ection
Claims 1-20 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Guedalia (US 2003/0135867 Al, July 17, 2003) in view
of Wang (US 2009/0265278 Al, Oct. 22, 2009), in further view of Schlarb
(US 6,671,879 Bl, Dec. 30, 2003). Final Act. 2-11. 1
1 Separate patentability is not argued for claims 2-20. Except for our
ultimate decision, these claims are not discussed further herein.
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Application 13/166,693
Appellant's Contentions
1. Appellant contends that the Examiner erred in rejecting claim 1
under 35 U.S.C. § 103(a) because:
Guedalia does not disclose that a fast start data stream - which
includes unprotected portions of a digital media content title -
is played before acquiring a license that authorizes playback of
a protected portion of the digital media content. In fact,
Guedalia is entirely silent regarding any type of protected data
stream or content license.
App. Br. 11-12; Reply Br. 5-7 (Appellant's emphasis omitted, Panel's
emphasis added).
2. Appellant also contends that the Examiner erred in rejecting claim 1
under 35 U.S.C. § 103(a) because:
Wang generally discloses techniques for managing the
use of digital content by issuing content licenses to trusted
users. Importantly, however, although Wang generally
describes the use of content licenses, the reference is entirely
silent regarding playing a fast start data stream associated \'l1ith
a particular media title before a license associated with that
media title is acquired. That is, in each and every embodiment
described by Wang, a license associated with a media title must
be acquired before the media title can be viewed. Wang does
not disclose a media title that includes an unprotected portion
(e.g., a fast start data stream) that is played before a license for
the media title is acquired, and a protected portion, playback of
which is authorized by acquisition of the license for the media
title.
App. Br. 13 (Appellant's emphasis omitted).
Issues on Appeal
Did the Examiner err in rejecting claim 1 as being obvious?
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Application 13/166,693
ANALYSIS
We have reviewed the Examiner's rejections in light of Appellant's
arguments that the Examiner has erred. We disagree with Appellant's
conclusions. We adopt as our own: ( 1) the findings and reasons set forth by
the Examiner in the action from which the appeal is taken (Final Act. 2-11 );
and (2) the reasons set forth by the Examiner in the Examiner's Answer
(Ans. 11-13) in response to the Appellant's Appeal Brief. We concur with
the conclusions reached by the Examiner. We highlight the following.
The Examiner relied upon the Guedalia reference for elements A, B,
and E; the Wang reference for element C; and the Schlarb reference for
element D of claim 1. Final Act. 2--4.
The Examiner finds, and we agree:
At the time of the invention, it would have been obvious
to a person of ordinary skilled in the art to modify Guedalia by
incorporating a function to receive a license from the license
device for the content requested as disclosed by Wang. The
motivation behind this modification would be to add a security
feature when accessing content desired by the user.
At the time of the invention, it would have been obvious
to a person of ordinary skilled in the art to modify Guedalia-
Wang by incorporating a function to introduce interstitial time
between two pay per view events (PPV) as disclosed by
Schlarb. The motivation behind this modification would be to
allow the system to easily identify the time between two
consecutive video streams.
Id. at 3--4.
As to Appellant's above contentions 1 and 2, we disagree. As to
contention 1, Appellant argues that Guedalia does not teach or suggest a
"content license." App. Br. 12. However, Examiner did not cite Guedalia
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Appeal2015-004643
Application 13/166,693
for the limitation. Rather, the Examiner cited Wang for teaching "the digital
content based on usage rights has a license associated with it and a license
must be retrieved before the user can playback the content (see para.
[0013])." Ans. 13.
As to contention 2, the Examiner did not cite Wang for the limitation.
Rather, the Examiner cited Guedalia for teaching "playing at least one of the
one or more intervals of the fast start data stream." Final Act. 3; Ans. 11-
12. We conclude that Appellant's arguments in their contentions 1 and 2
ignore the actual reasoning of the Examiner's rejection. Instead, Appellant
attacks a reference singly for lacking a teaching that the Examiner relied on
a combination of references to show. It is well established that one cannot
show nonobviousness by attacking references individually where the
rejections are based on combinations of references. See In re Keller, 642
F.2d 413, 426 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 1097 (Fed.
Cir. 1986). The effect of Appellant's argument is to raise and then knock
down a straw man rejection of claim 1 that was never made by the Examiner
in that the Examiner did not rely solely on the one reference as argued. In
other words, Appellant argues Examiner's findings that were never made.
This form of argument is inherently unpersuasive to show Examiner error.
Our reviewing court requires that references must be read, not in isolation,
but for what they fairly teach in combination with the prior art as a whole.
Merck, 800 F.2d at 1097.
Appellant argues,
The cited references fail to teach or suggest playing at least one
of the one or more intervals of the fast start data stream before
the license for the digital media content title is acquired, where
the license for the digital media content title authorizes
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Appeal2015-004643
Application 13/166,693
playback of a protected data stream comprising a sequence of
intervals that encode protected portions of the data of the digital
media content title.
App. Br. 11.
Appellant's argument overlooks the Court's decision in KSR Int 'l Co.
v. Teleflex Inc., 550 U.S. 398 (2007). Appellant argues that a teaching or
suggestion is required, without acknowledging that the Court specifically
repudiated that such a "teaching or suggestion" is required to show
obviousness. KSR, 550 U.S. at 415 ("We begin by rejecting the rigid
approach of the Court of Appeals."). Rather, the requirement is only that the
Examiner show "the subject matter as a whole would have been obvious at
the time the invention was made to a person having ordinary skill in the art
to which said subject matter pertains." KSR, 550 U.S. at 406 (emphasis
added) (quoting 35 U.S.C. § 103); id. at 418 ("[T]he analysis need not seek
out precise teachings directed to the specific subject matter of the challenged
claim, for a court can take account of the inferences and creative steps that a
person of ordinary skill in the art would employ.").
CONCLUSION
The Examiner has not erred in rejecting claims 1-20 as being
unpatentable under 35 U.S.C. § 103(a).
DECISION
The Examiner's rejection of claims 1-20 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)(l )(iv).
AFFIRMED
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