Ex Parte Karaoguz et al

Patent Trial and Appeal Board

Jan 23, 2013

10675654 (P.T.A.B. Jan. 23, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte JEYHAN KARAOGUZ and JAMES BENNETT
____________________

Appeal 2010-011406
Application 10/675,654
Technology Center 2400
____________________

Before THU A. DANG, JAMES R. HUGHES, and
GREGORY J. GONSALVES, Administrative Patent Judges.

DANG, Administrative Patent Judge.

DECISION ON APPEAL

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I. STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from a Final Rejection of
claims 1-42 (App. Br. 2). We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
A. INVENTION
According to Appellants, the invention relates to information transfer
and storage in a distributed media network, and more specifically to
migration of media, data and/or services through a media processing system
(Spec. 2, ¶[04])

B. ILLUSTRATIVE CLAIM
Claim 1 is exemplary:
1. A method for communicating information in a distributed
network, the method comprising:

automatically and without user intervention, initiating
detection and detecting whether one or more of new media, data
and/or service becomes newly available within the distributed
network;

migrating said newly available one or more of new
media, data and/or service to at least a first media processing
system within the distributed media network; and

storing said migrated newly available one or more of new
media, data and/or service at said at least a first media
processing system.

C. REFERENCE
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
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Gregerson US 5,526,358 June 11, 1996
Carter US 2002/0194309 A1 Dec. 19, 2002

The Gnutella Protocol Specification v0.4: Document Revision 1.0,
pp1-13, http://www.clip2.com/GnutellaProtocol04.pdf (lasted visited on
June 3, 2001) (hereinafter “Gnutella”).

D. REJECTIONS
Claims 1-4, 7-14, 17-24, 27-35, and 38-42 stand rejected under 35
U.S.C. 103(a) as being unpatentable over Gnutella and Gregerson.1
Claims 5, 6, 15, 16, 25, 26, 36, and 37 stand rejected under 35 U.S.C.
103(a) as being unpatentable over Gnutella, Gregerson, and Carter.

II. ISSUE
The issue before us is whether the Examiner has erred in finding that
the combined teachings of Gnutella and Gregerson disclose or would have
suggested “automatically and without user intervention, initiation detection
and detecting” (claim 1, emphasis added).

III. FINDINGS OF FACT
The following Findings of Fact (FF) are shown by a preponderance of
the evidence.

1 Although claims 36 and 37 were listed by the Examiner as rejected over
Gnutella and Gregerson, the Examiner’s Answer indicates that claims 36 and
37 “are substantially similar to claims 5 and] 6, and are rejected for
substantially similar reasons” (Ans. 13). Accordingly, we deem this listing
to be a typographical error and will review claims 36 and 37 as being
rejected over Gnutella, Gregerson, and Carter, similar to claims 5 and 6.
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Gnutella
1. Gnutella discloses a servent which receives a Query descriptor
and responds with a QueryHit if a match is found against its local data set,
wherein a Gnutella servent connects itself to the network by establishing a
connection with another servent currently on the network (p. 1).
Gregerson
2. Gregerson discloses kernels residing at a network node having
one or more resources associated therewith, wherein the kernels dynamically
locate one another in real-time to form and maintain a hierarchical structure
that supports a virtually unlimited number of independently running kennels
and a dynamic context bridge communicates between end nodes thereby
allowing applications residing on different stacks to communicate with one
another automatically and transparently (col. 2, ll. 52-65)
3. “A Find Query will begin searching for resources at the local
machine” and moving up the network hierarchy if no resources are found,
(col. 13, ll. 26-36), wherein “i]f a resource is not available at the time an
application executes a Find Query,” the application executes a Persistent
Find Query (col. 12, ll. 29-34).

IV. ANALYSIS
Claims 1-4, 7-14, 17-24, and 27-35, and 38-42
With respect to independent claim 1, Appellants contend that “the
Query descriptor [of Gnutella] is used to locate a match (and a QueryHit)
against existing data within the local data set of the specific servant” (App.
Br. 8, emphasis omitted). Accordingly, Appellants argue that “[t]he Query
descriptor, as well as any of the remaining Gnutella descriptors, is not used
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(and cannot be used) for purposes of initiating detection and detecting”
wherein “a user has to specifically designate the search criteria (or the search
string)” and “the Query descriptor, as well as any other descriptor of the
Gnutella protocol, requires user participation (the user has to initiate the
query)” (App. Br. 8-9, emphasis omitted).
However, the Examiner finds that, in Gnutella, “the actual act of
detecting is performed automatically” (Ans. 3). Though the Examiner
concedes that “Gnutella does not disclose expressly initiating detecting
without user intervention,” the Examiner finds that “persistent query’s, such
as that disclosed in Gregerson, are very well known in the art” wherein “[i]f
the item being searched for is not found, the system automatically, and
without user intervention, searches for the item again after some interval or
in a continuous fashion” (Ans. 4). We find no error in the Examiner’s
findings and conclusion.
We give the claim its broadest reasonable interpretation consistent
with the Specification. See In re Morris, 127 F.3d 1048, 1054 (Fed. Cir.
1997). However, we will not read limitations from the Specification or any
other reference into the claims. In re Van Geuns, 988 F.2d 1181, 1184 (Fed.
Cir. 1993).
Although Appellants adds an argument in the Reply Brief that “the
‘persistent query’ of Gregerson does not occur ‘automatically and without
user intervention’ because a user must set up the initially query” (Reply Br.
6), Appellants appear to be arguing that a query cannot occur automatically
and without user intervention if the user set up the initial query. However,
such argument is no commensurate in scope with the recited language of
claim 1. Contrary to Appellants’ argument, claim 1 does not preclude a
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query that is initiated automatically and without intervention after an initial
query is set up. That is, claim 1 merely requires any detection that is
initiated automatically without user intervention.
Gnutella discloses detecting a resource becomes available (FF 1). We
find no error in the Examiner’s finding that in Gnutella, “the actual act of
detecting is performed automatically” (Ans. 3).
Furthermore, Gregerson discloses applications residing on different
stacks that communicate with one another automatically and transparently
(FF 2), wherein a Find Query begins searching for resources and if a
resource is not available, the application executes a Persistent Find Query
(FF 3). We find no error in the Examiner’s finding that, in Gregerson, “[i]f
the item being searched for is not found, the system automatically, and
without user intervention, searches for the item again after some interval or
in a continuous fashion” (Ans. 4). That is, we find that Gregerson’s
Persistent Find Query is initiated automatically if the item being searched is
not found, wherein there is no user intervention in such initiation.
Accordingly, we find no error in the Examiner’s conclusion that
combined teachings of Gnutella and Gregerson would at least have
suggested “automatically and without user intervention, initiation detection
and detecting” as recited in claim 1. Appellants do not provide arguments
for independent claims 11, 21, and 32 separate from those of claims 1 (App.
Br. 10), and thus, claims 1, 21, and 32 fall with claim 1.
As for claims dependent claims 2, 3, 10, 12, 13, 20, 22, 23, 30, 33, 34,
and 41, although Appellants contend that Examiner erred in taking of
Official Notice (App. Br. 12-17 and 19-20), the Examiner points to
Microsoft Internet Explorer version 6, Microsoft Windows Media Player
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7.1, and Microsoft Support Document 320926 as references that specifically
disclose this well-known concept (Ans. 19-20). In response, Appellants do
not point to any evidence or express any persuasive reasoning tending to
establish that the Examiner erred in his finding of Official Notice (see Reply
Br.).
“To adequately traverse such a finding [of official notice], an
applicant must specifically point out the supposed errors in the examiner’s
action, which would include stating why the noticed fact is not considered to
be common knowledge or well-known in the art. See 37 CFR 1.111(b).”
M.P.E.P. § 2144.03(C). An adequate traverse must contain adequate
information or argument to create on its face, a reasonable doubt regarding
the circumstances justifying notice of what is well known to one of ordinary
skill in the art. In re Boon, 439 F.2d 724, 728 (CCPA 1971).
Thus, though the Examiner offers evidence to support his taking of
notice, Appellants do not address this evidence. We find that Appellants’
arguments do not contain adequate information to create on its face, a
reasonable doubt regarding the circumstances justifying notice of what is
well known to one of ordinary skill in the art.
Accordingly, we find no error in the Examiner’s rejection of claims 2,
3, 10, 12, 13, 20, 22, 23, 30, 33, 34, and 41 over Gnutella and Gregerson in
view of Official Notice.
Appellants do no provide arguments for dependent claims 4, 7, 9, 14,
17, 19, 24, 27, 29, 31, 35, 38, 40, and 42 separate from those of claims 1, 11,
21, and 32, from which they respectively depend (App. Br. 17-20).
Accordingly, claims 4, 7, 9, 14, 17, 19, 24, 27, 29, 31, 35, 38, 40, and 42 fall
with claim 1. See 37 C.F.R. § 41.37(c)(1)(iv).
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As to claims 8, 18, 28, and 39, in response to the Examiner’s finding
that “Internet Explorer allowed a file to be scheduled to be immediately
downloaded” (Ans. 21), Appellants merely argue in the Reply Brief that
“[t]he Examiner offers absolutely no credible support for construing
‘scheduling’ to cover an instance where a user chooses to immediately
download a file in the manner set forth [in claim 8]” (Reply Br. 7).
However, since we give the claims its broadest reasonable
interpretation, we find no error in the Examiner’s broad reading of claim 8.
That is, claim 8 merely requires a step of “scheduling” the migration. Thus,
though the Examiner offers evidence to support his taking of notice that
scheduling of migration is well-known, Appellants do not address this
evidence. Accordingly, we find no error in the Examiner’s rejection of
claim 8 and claims 18, 28, and 39 falling therewith (App. Br. 19) over
Gnutella and Gregerson.
Claims 5, 6, 15, 16, 25, 26, 36, and 37
Appellants do not provide any arguments for claims 5, 6, 15, 16, 25,
26, 36, and 37 separate from those of claim 1, 11, 21, and 32 from which
they respectively depend (App. Br. 21). Accordingly, we also find no error
with the rejection of claims 5, 6, 15, 16, 25, 26, 36, and 37 over Gnutella and
Gregerson, in further view of Carter.

V. CONCLUSION AND DECISION
The Examiner’s rejection of claims 1-42 under 35 U.S.C. § 103(a) 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).
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AFFIRMED

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