Ex Parte Jung et al

Patent Trial and Appeal Board

Mar 20, 2017

12541524 (P.T.A.B. Mar. 20, 2017)

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.
12/541,524 08/14/2009 Dong-Shin JUNG 678-3759 3567
66547 7590 03/22/2017
THE FARRELL LAW FIRM, P.C.
290 Broadhollow Road
Suite 210E
Melville, NY 11747
EXAMINER
LANGHNOJA, KUNAL N
ART UNIT PAPER NUMBER
2427
NOTIFICATION DATE DELIVERY MODE
03/22/2017 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):
pto @ farrelliplaw. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DONG-SHIN JUNG, JOO-YEOL LEE, SE-HEE HAN,
JE-YOUNG MAENG, FEI FEI FENG, and RUSSELL BERKOFF
Appeal 2016-008290
Application 12/541,524
Technology Center 2400
Before ALLEN R. MacDONALD, LINDA E. HORNER, and
MICHAEL J. ENGLE, Administrative Patent Judges.
MacDONALD, Administrative Patent Judge.
DECISION ON APPEAL
Appeal 2016-008290
Application 12/541,524
STATEMENT OF CASE
Appellants appeal under 35 U.S.C. § 134(a) from a rejection of claims
1, 2, 4—11, and 13—18. Final Act. 1. Claims 3 and 12 have been cancelled.
App. Br. 14, 17. We have jurisdiction under 35 U.S.C. § 6(b).
Exemplary Claim
Exemplary claim 1 under appeal reads as follows (emphasis,
formatting, and bracketing added):
1. A method for playing back a scene using Universal Plug
and Play (UPnP), comprising:
[A.] sending, by a control point, a request for a scene to be played
back to a media server that stores Audio/Video (AV) content;
[B.] receiving, by the control point, one or more scene objects
comprising the scene to be played back from the media server
in response to the request, each scene object including metadata
representing at least one of
[i.] a precedence relation indicating the scene object’s location
in a sequence of scene objects and
[ii.] a connection relation indicating one or more scene objects
capable of replacing the scene object, the connection
relation including at least one of
[1.] a connection branch and
[2.] a contents connection list having a first group
identification,
[a.] the connection branch configured to move to
and play back a scene object at a playback
time of a scene object including inter-object
connection relation information, which is
represented by designating scene objects in a
connection list having a second group
identification, and
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[b.] the contents connection list configured to
access a scene object in a precedence
relation list;
[C.] [i.] receiving, by the control point, information about
supportable protocol and file format from a media
renderer that will play back content, and
[ii.] determining a content resource, a protocol and a file format
to be used for playback based on the information;
[D.] composing, by the control point, the scene to be played back
based on the received one or more scene objects; and
[E.] playing back, by the media Tenderer, the composed scene.
Rejections
1. The Examiner rejected claims 1, 2, 4—8, 10, 11, and 13—17 under
35 U.S.C. § 103(a) as being unpatentable over the combination of
Encamacion et al. (US 2005/0138137 Al; June 23, 2005) and Ryu (US
2008/0050096 Al; Feb. 28, 2008).
2. The Examiner rejected claims 9 and 18 under 35 U.S.C. § 103(a)
as being unpatentable over the combination of Encamacion, Ryu, and
Hlasny et al. (US 2005/0108766 Al; May 19, 2005).
Appellants ’ Contentions
1. Appellants contend the Examiner erred in rejecting claim 1 under
35 U.S.C. § 103(a) because
Encamacion. . . does not disclose, teach, or suggest that the
directory 600 includes at least one of a connection branch and a
contents connection list ... as recited in Claim 1. Therefore,
Encamacion does not render obvious Claim 1.
App. Br. 9 (emphasis added).
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2. Appellants also contend the Examiner erred in rejecting claim 1
under 35 U.S.C. § 103(a) because
[t]he Examiner relies on Ryu for teaching that “each scene object
[represents] at least one of precedence relation indicating the
scene object’s location in a sequence of scene objects and...
scene object representing connection relation”. (See Final Office
Action p. 5.) However, Ryu does not disclose, teach, or suggest
a connection relation including at least one of a connection
branch and a contents connection list... as recited in Claim 1.
App. Br. 9 (emphasis added).
Issue on Appeal
Did the Examiner err in rejecting claim 1 as being obvious?
CLAIM CONSTRUCTION
Independent claim 1 recites “each scene object including metadata
representing at least one of a precedence relation . . . and a connection
relation” and “the connection relation including at least one of a connection
branch and a contents connection list.” (Emphasis added.) Independent
claims 9, 10, and 18 recite analogous limitations using the same format of
“at least one of [A] and [B]
The Federal Circuit Addressed “at least one of A and B ” in SuperGuide
Our reviewing court has held that the plain meaning of “at least one
of A and B” is the conjunctive phrase “at least one of A and at least one of
B.” SuperGuide Corp. v. DirecTV Enters., Inc., 358 F.3d 870, 885—86 (Fed.
Cir. 2004). In support of this conclusion, the Federal Circuit explained, “A
common treatise on grammar teaches that ‘an article of a preposition
applying to all the members of the series must either be used only before the
first term or else be repeated before each term.”’ Id. at 886 (quoting
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William Strunk, Jr. & E.B. White, The Elements of Style 27 (4th ed. 2000)).
“Thus, ‘in spring, summer, or winter’ means ‘in spring, in summer, or in
winter.’” Id. (quoting Strunk, The Elements of Style 27). The ordinary
meaning therefore compelled a difference in meaning between a list
separated by “and” versus the same list separated by “or.”
Upon consideration of the parties’ opposing constructions and
evidence, the court in SuperGuide also pointed out that neither the
specification nor the prosecution history in that case “enlarge[d] the claim
scope from its plain and ordinary meaning.” Id. at 887—88.
Subsequent Cases Applying SuperGuide
Although numerous courts have followed SuperGuide,1 some courts
and administrative bodies at times have distinguished SuperGuide on the
basis that the normal conjunctive meaning of “at least one of. . . and” does
not apply when the patent’s claims, specification, or prosecution history
necessitate a broader meaning.2 Instead, given the specific facts in those
1 E.g., IPXL Holdings, L.L.C. v. Amazon.com, Inc., 333 F. Supp. 2d 513,
525—26 (E.D. Va. Aug. 25, 2004); TouchTunes Music Corp. v. Rowe Inti
Corp., 727 F. Supp. 2d 226, 238-39 (S.D. N.Y. July 22, 2010); Stragent
LLCv. BMWN. Am. LLC, No. 6:11CV278 LED-JDL, 2013 WL 3367295, at
*4—6 (E.D. Tex. July 3, 2013); Modine Mfg. Co. v. Borg-Warner, Inc., No.
12-CV-815-JPS, 2013 WL 5651381, at *10 (E.D. Wis. Oct. 15, 2013);
Motorola Mobility, Inc. v. Apple Inc., No. 1:12-CV-20271, 2013 WL
12061831, at *3 (S.D. Fla. Nov. 19, 2013); LMTMercer Group, Inc. v.
Maine Ornamental, LLC., No. 10-4615, 2014 WL 183823, at *27 (D. N.J.
Jan. 16, 2014); see also F5 Networks Inc. v. A10 Networks, Inc., No. C10-
654 MJP, 2011 WL 3516054, at *1 (W.D. Wash. Aug. 11, 2011).
2 E.g., Fujifdm Corp. v. Motorola Mobility LLC, No. 12-CV-03587-WHO,
2015 WL 1265009, at *8 (N.D. Cal. Mar. 19, 2015) (summarizing cases and
noting “SuperGuide did not erect a universal rule of construction for all uses
of ‘at least one of in all patents” when the specification or claims suggest
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cases, these tribunals applied a disjunctive meaning to “at least one of A and
B,” effectively reading the conjunctive “and” as a disjunctive “or.”
otherwise); Power-One, Inc. v. Artesyn Techs., Inc., No. 2:05cv463, 2007
WL 896093, at *14 (E.D. Tex. Mar. 22, 2007) (distinguishing based on the
specification and claims, and construing “at least one of X, Y, and Z” as “a
group (i.e., the group includes X, Y, and Z) from [which] at least one is
selected”); Inventio AG v. ThyssenKrupp Elevator Ams. Corp., No. 08-874-
RGA, 2014 WL 129799, at *3^4 (D. Del. Jan. 14, 2014) (distinguishing
based on the prosecution history and “every embodiment... in the
specification”); Mad CatzInteractive, Inc. v. Razer USA, Ltd., No. 3:13-CV-
2371-GPC, 2015 WL 3905074, at *13-14 (S.D. Cal. June 25, 2015)
(following SuperGuide for some claims but distinguishing it for others based
on the claim language and embodiments disclosed in the specification); Joao
v. Sleepy Hollow Bank, 348 F. Supp. 2d 120, 124 (S.D.N.Y. 2004) (rejecting
a conjunctive reading of the limitation “the banking transaction is at least
one of a clearing transaction, a check clearing transaction, an account
charging transaction, and a charge-back transaction” as nonsensical because
a single banking transaction cannot be all four); Joao Bock Transaction Sys.,
LLCv. First Nat I Bank, No. 11 C 6472, 2013 WL 3199981, at *6-7 (N.D.
111. June 24, 2013) (rejecting a conjunctive reading of the limitation “one of
approving and disapproving” because it “would render a substantial portion
of Plaintiff s claims meaningless”); Pinpoint Inc. v. Amazon.com, No. 03-C-
4954, 2004 WL 5681471, at *16 (N.D. 111. Sept. 1, 2004) (“Superguide is
inapplicable because the prosecution history supports Pinpoint’s proposed
construction” and reveals both the inventors and the examiner “explicitly
asserted that the phrase meant. . . ‘either . . . or”’); Dealertrack, Inc. v.
Huber, No. 06-cv-2335-AG, 2008 WL 5792509, at *7 (C.D. Cal. Sept. 27,
2008) (“Here, in contrast, ‘at least one of is followed by a colon”), affd-in-
part on other grounds, 674 F.3d 1315 (Fed. Cir. 2012); QSC Audio Prods.,
LLC, v. Crest Audio, Inc., No. IPR2014-00131, 2015 WL 2089370, at *A-5
(PTAB May 1, 2015) (following SuperGuide for one limitation but not
another because “SuperGuide has been distinguished on the basis that the
normal conjunctive meaning does not apply when the specification or claims
imply a broader meaning”); In re Certain Ground Fault Circuit Interrupters,
Inv. No. 337-TA-739, 2012 WL 2394435, at *20-21 (USITC June 8, 2012)
(distinguishing because the specification described a disjunctive
embodiment but not a conjunctive one).
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For example, in Ex parte Concha, the issue focused on the
construction of a limitation in the “at least one of A and B” format. Ex parte
Concha, No. 2012-008364, 2015 WL 397716 (PTAB Jan. 28, 2015). Upon
consideration of the application’s specification and the positions of the
applicants and the Examiner, the panel distinguished SuperGuide in the
same way as the cases discussed above. Id. at *3. The panel in that case
agreed with the examiner’s reasoning, and found “Super guide is not
pertinent here” because the claims and specification suggested only a single
item should be selected rather than a plurality. Id.
However, in Ex parte Gardner, the panel reached the opposite result
and followed SuperGuide. The claim construction was not directly disputed
on the initial appeal, but when raised in a request for rehearing, the panel
concluded “providing at least one of a data sources portion and a processes
portion” required “providing access to a ‘processes portion’ (as well as a
‘data sources portion’).” Ex parte Gardner, No. 2009-010298, 2011 WL
180106, at *1 (BPAI Jan. 12, 2011) (emphasis added).
Applying SuperGuide to the Application on Appeal
In the appeal before this panel, neither Appellants nor the Examiner
directly address the appropriate construction of the “at least one of A and B”
phrases. The Examiner’s Answer states, for the first time we find in the
record, the “claim only requires either ‘a precedence relation . . .’ OR ‘a
connection relation.’” Ans. 5. However, we find no supporting analysis
from the Examiner on why this disjunctive claim construction should be the
case instead of the plain meaning of “and.” Rather, without further support,
the Examiner merely presents that conclusory statement which, without
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more, is in conflict with SuperGuide. Appellants’ Reply Brief is also silent
as to the issue.
For claims written in the format of “at least one of A and B,” the
Federal Circuit made clear in SuperGuide that the plain and ordinary
meaning is the conjunctive phrase “at least one of A and at least one of B.”
358 F.3d at 887. An Examiner may adopt a different meaning if called for
based upon the usual claim construction considerations, including analyzing
the specification for any definition or disavowal. See id. (examining the
specification to determine whether it supports the plain and ordinary
meaning); id. at 888 (“Lastly, we decline to enlarge the claim scope from its
plain and ordinary meaning based on the prosecution history in this case
because the ’211 patentee did not clearly and explicitly define the term ‘and’
in the covered criteria list as ‘or.’”); see generally Phillips v. AWH Corp.,
415 F.3d 1303, 1313—19 (Fed. Cir. 2005) (enbanc) (holding claim terms
should be read in the context of the claims, the rest of the specification, the
prosecution history, and in some cases extrinsic evidence). However, like
any claim construction straying from the ordinary meaning, the Examiner
should set forth the reasoning for such an interpretation, including citations
and explanations of relevant portions of the claims, specification, or
prosecution history. See, e.g., Manual of Patent Examining Procedure
§ 2111.01(V) (“an Office action should acknowledge and identify the special
definition in this situation”).
The Federal Circuit’s interpretation of “at least one of A and B” in
SuperGuide also is consistent with how the Federal Circuit ordinarily treats
the word “and.” “Although we [the Federal Circuit] have construed ‘and’ to
mean ‘or’ when the specification so requires, those cases .... have a
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common theme that. . . the specification compels a disjunctive construction
for ‘and.’” Medgraph, Inc. v. Medtronic, Inc., 843 F.3d 942, 949—50 (Fed.
Cir. 2016) (citation omitted). “For example, in Ortho—McNeil \Pharm., Inc.
v. Mylan Labs., Inc., 520 F.3d 1358, 1361—62 (Fed. Cir. 2008)], we held that
‘and’ meant ‘or’ because as used in [the] claim, and conjoins mutually
exclusive possibilities.” Id. at 949 (quotation omitted). Otherwise, the
ordinary meaning of “and” applies.
Here, the Examiner has not provided the supporting analysis
necessary to stray from the ordinary meaning set forth in SuperGuide and
Medgraph. Further, our analysis of the Specification, including the claims,
does not reveal any clear definition or disavowal which would compel a
disjunctive construction and distinguish SuperGuide and Medgraph.
We look first to the claimed “at least one of a precedence relation . . .
and a connection relation.” The Specification states “a precedence relation
objectLink or a connection relation objectList” (Spec. 11:25, emphasis
added), and at Figure 5 shows a precedence relation without a connection
relation. However, the Specification also provides embodiments in Figures
6 and 7 where a connection relation occurs in addition to a precedence
relation (Spec. 12:26 through 13:3) (“The connection branch represents a
connection relation for moving to and playing back an object including
inter-object connection relation information while playing back content
according to the inter-object precedence relation”) (emphasis added). Thus,
we find the Specification supports a conjunctive embodiment of the claimed
“at least one of a precedence relation . . . and a connection relation.”
We next look to the claimed “at least one of a connection branch and a
contents connection list.” Again, the Specification provides a disjunctive
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example in which a connection relation “may” be represented by either a
connection branch “or” a connection list (Spec. 12:21—23, emphasis added).
Yet neither the claims nor the remainder of the Specification ever suggest
that a connection branch and a contents connection list must be mutually
exclusive. Thus, nothing compels interpreting “and” to mean “or” contrary
to its ordinary meaning.
We therefore conclude the “at least one of A and B” phrases of
claim 1 are properly construed as “each scene object including metadata
representing at least one of a precedence relation . . . and [at least one of] a
connection relation” and “the connection relation including at least one of a
connection branch and [at least one of] a contents connection list.”
(Emphasis added.)
As discussed below, we recognize that this claim construction
compels a finding that the limitation “at least one of a connection branch and
a contents connection list” lacks written description because the
Specification discloses only an example of “or,” not “and.” Although we
could preserve validity by construing “and” as “or,” we decline to do so
here. See Agilent Techs., Inc. v. Affymetrix, Inc., 567 F.3d 1366, 1379 (Fed.
Cir. 2009) (“Patent applications do not enjoy the statutory presumption of
validity found in 35 U.S.C. § 282.”). A mere example of “or” in the
Specification without more that would compel the disjunctive is insufficient
to overcome the ordinary meaning of a claim using the conjunctive “and,”
even if such a claim construction results in the claim being unpatentable for
lack of written description. “It is the applicants’ burden to precisely define
the invention, not the PTO’s.” In re Morris, 111 F.3d 1048, 1056 (Fed. Cir.
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1997). Given the record before us and the opportunity Appellants have to
amend the claims, we decline to construe “and” as “or.”
ANALYSIS
Given our rejection of the Examiner’s interpretation of “and” as “or”
(see Ans. 5), we agree with Appellants (App. Br. 9) that we are unable to
find sufficient support for the Examiner’s findings that either Encamacion
(Final Act. 4—5; Ans. 5—7) or Ryu (Final Act. 5—6; Ans. 7—8) teaches or
suggests “at least one of a connection branch and a contents connection list.”
The specific bases in Encamacion and Ryu of the Examiner’s findings are
discussed at pages 6—8 of the Answer and pages 4—5 of the Final Rejection.
We have reviewed the cited references. Particularly given that the
Examiner’s findings are difficult to parse because the Examiner provides
citations for the entire clause rather than specifically identifying separate
teachings for a “connection branch” and a “contents connection list,” we
find the Examiner has not sufficiently explained how the cited text teaches
both a connection branch and a connection list. Therefore, we agree with
Appellants that Encamacion “does not disclose, teach, or suggest that the
directory 600 includes at least one of a connection branch and a contents
connection list” and “Ryu does not cure the deficiencies of Encamacion”
(Reply Br. 4).
Accordingly, we conclude there is insufficient articulated reasoning to
support the Examiner’s final conclusion that independent claims 1,9, 10,
and 18 would have been obvious to one of ordinary skill in the art at the time
of Appellants’ invention. Dependent claims 2, 4—8, 11, and 13—17 stand
with their respective independent claims.
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NEW GROUND OF REJECTION
35 U.S.C. § 112, First Paragraph
In a new ground of rejection using our authority under 37 C.F.R.
§ 41.50(b), we reject claims 1, 2, 4—11, and 13—18 under 35 U.S.C. § 112,
first paragraph as failing to comply with the written description requirement.
The claims contain subject matter which was not described in the
specification in such a way as to “reasonably convey[] to those skilled in the
art that the inventor had possession of the claimed subject matter as of the
filing date.” Ariad Pharm., Inc. v. Eli Lilly & Co., 598 F.3d 1336, 1351
(Fed. Cir. 2010) (enbanc).
Appellants’ claim 1 recites “the connection relation including at least
one of a connection branch and a contents connection list.” As discussed
above, we construe this limitation as requiring “the connection relation
including at least one of a connection branch and [at least one of] a contents
connection list.” (Emphasis added.)
We have reviewed Appellants’ Specification and we find no written
description support for this limitation. Appellants’ summary of the claimed
subject matter (App. Br. 2) indicates support for this limitation is found at
“page 12, line 16 to page 13, line 18” of the Specification. The cited text
describes Figures 6 and 7. Figure 6 illustrates a connection branch
according to the present invention, and Figure 7 separately illustrates a
contents connection list Index according to the present invention. Spec.
10:2-6, 12:16-19.
We conclude neither the cited text nor the figures ever address
simultaneously having both a connection branch and a contents connection
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list. To the contrary, the cited text describes using these connection relations
in the alternative'.
A connection relation between objects may be represented by
[(a)] describing IDs of other objects capable of replacing a
specific object [i.e., a connection branch] or [(b)] an ID of an
object connection list.
Spec. 12:21—23 (emphasis added). Thus, the cited portion of the
Specification may provide written description for a connection branch or a
contents connection list, but Appellants have not identified any written
description support for a single embodiment having both a connection
branch and a contents connection list, as presently required by claim 1.
We note the introductory sentence to the paragraph beginning at line
25 of page 12 of the Specification states “[a]s an example based on the
connection relation between objects, a connection branch and a contents
connection list Index can be considered” (emphasis added). However, while
the conjunctive connector “and” is used, the remaining sentences of that
paragraph and the next paragraph (Spec 13:12—18) each discuss an example
focused on either “a connection branch” (Figure 6) or “a contents connection
list” (Figure 7), not both simultaneously. Thus, reading the introductory
sentence in its full context, we deem its use of “and” to indicate that separate
examples for both “a connection branch” and “a contents connection list” are
considered in the Specification, not that both occur in the same embodiment.
We further note Appellants are not precluded from amending the
independent claims to set forth the desired relationship between (A) a
connection branch and (B) a contents connection list, such as
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1) “at least one of A or B”;
2) “at least one of A or at least one of B”; or
3) “at least one selected from the group of A and B”.
However, “[i]t is the applicants’ burden to precisely define the
invention, not the PTO’s.” Morris, 127 F.3d at 1056. Given the record
before us and the opportunity Appellants have to amend the claims, we
decline to construe “and” as “or” and instead hold that the Specification’s
use of the word “or” indicates a lack of written description for the word
“and” rather than any clear intent to redefine “and” to mean “or.”
The same claim limitation is recited in independent claims 9, 10, and
18, and incorporated by dependency in claims 2, 4—8, 11, and 13—17.
Accordingly, we reject claims 1,2, 4—11, and 13—18 under 35 U.S.C.
§112, first paragraph for lack of written description.
CONCLUSIONS
(1) Appellants have established the Examiner erred in rejecting
claims 1, 2, 4—11, and 13—18 as unpatentable under 35 U.S.C. § 103(a).
(2) We newly reject claims 1, 2, 4—11, and 13—18 under
35 U.S.C. § 112, first paragraph for lack of written description.
(3) Claims 1, 2, 4—11, and 13—18 are not patentable.
DECISION
The Examiner’s rejections of claims 1, 2, 4—11, and 13—18 are
reversed.
Claims 1, 2, 4—11, and 13—18 are newly rejected for lack of written
description.
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TIME TO RESPOND
This decision contains a new ground of rejection pursuant to 37
C.F.R. § 41.50(b). Section 41.50(b) provides that “[a] new ground of
rejection pursuant to this paragraph shall not be considered final for judicial
review.” Section 41.50(b) also provides:
When the Board enters such a non-final decision, the appellant,
within two months from the date of the decision, must exercise
one of the following two options with respect to the new ground
of rejection to avoid termination of the appeal as to the rejected
claims:
(1) Reopen prosecution. Submit an appropriate amendment of
the claims so rejected or new Evidence relating to the claims so
rejected, or both, and have the matter reconsidered by the
examiner, in which event the prosecution will be remanded to the
examiner. The new ground of rejection is binding upon the
examiner unless an amendment or new Evidence not previously
of Record is made which, in the opinion of the examiner,
overcomes the new ground of rejection designated in the
decision. Should the examiner reject the claims, appellant may
again appeal to the Board pursuant to this subpart.
(2) Request rehearing. Request that the proceeding be reheard
under § 41.52 by the Board upon the same Record. The request
for rehearing must address any new ground of rejection and state
with particularity the points believed to have been
misapprehended or overlooked in entering the new ground of
rejection and also state all other grounds upon which rehearing
is sought.
Further guidance on responding to a new ground of rejection can be
found in the Manual of Patent Examining Procedure § 1214.01.
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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).
REVERSED
37 C.F.R. $ 41.50(b)
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