Ex Parte KOTECHA et al

Patent Trial and Appeal Board

Jan 12, 2016

12849916 (P.T.A.B. Jan. 12, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/849,916 08/04/2010
25537 7590 01/14/2016
VERIZON
PA TENT MANAGEMENT GROUP
1320 North Court House Road
9th Floor
ARLINGTON, VA 22201-2909
FIRST NAMED INVENTOR
Lalit Ratilal KOTECHA
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.
20100425 8787
EXAMINER
LONSBERRY, HUNTER B
ART UNIT PAPER NUMBER
2427
NOTIFICATION DATE DELIVERY MODE
01114/2016 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):
patents@verizon.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte LALIT RA TILAL KOTECHA, SERGIO AGUIRRE,
RAAFAT KAMEL, and KAMLESH KAMDAR1
Appeal2013-011028
Application 12/849,916
Technology Center 2400
Before CARL W. WHITEHEAD JR., MICHAEL J. STRAUSS, and
AMBER L. HAGY, Administrative Patent Judges.
HAGY, Administrative Patent Judge.
DECISION ON APPEAL
1 Appellants identify Verizon Communications Inc. and its subsidiary
companies as the real parties in interest. (Br. 3.)
Appeal2013-011028
Application 12/849,916
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from a rejection of claims
1-3, 5-8, 10-15, 18-22, and 25. 2 We have jurisdiction under 35 U.S.C.
§ 6(b ).
We affirm.
Introduction
The present invention pertains to providing "QoS [quality of service]
guarantees to video content delivered to fixed user devices over wireless
access networks." (Spec. i-f 11.)
Exemplary Claim
Claim 1, reproduced below with disputed limitations italicized, is
illustrative of the claimed subject matter:
1. A method implemented by a computing device, the
method comprising:
receiving, by the computing device, a video content
request from a fixed user device connected to a wireless access
network;
providing, by the computing device, the video content
request to a content provider;
receiving, by the computing device, a trigger for creating
a dedicated bearer, in the wireless access network, based on
traffic parameters associated with the video content request;
creating, by the computing device, a dedicated bearer for
the fixed user device based on the trigger;
receiving, by the computing device, video content from
the content provider based on the video content request;
2 The Examiner indicates claims 9, 16, 17, and 23 are allowed. (Final Act.
1.)
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assigning, by the computing device, quality of service
(QoS) parameters to the video content based on the traffic
parameters; and
providing, by the computing device and to the fixed user
device, the video content with the QoS parameters,
wherein the QoS parameters include at least two of a
required bit rate, a delay, jitter, packet dropping probability, or
a bit error rate (BER) associated with the video content.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Oyama
Yu
Jana
US 2006/0168303 Al
US 2010/0115575 Al
US 2010/0254370 Al
REJECTION
July 27, 2006
May 6, 2010
Oct. 7, 2010
Claims 1-3, 5-8, 10-15, 18-22, and 25 stand rejected under 35 U.S.C
§ 103(a) as being unpatentable over Jana, Yu, and Oyama. (Final Act. 5-
11.)
ISSUES
( 1) Whether the Examiner erred in finding Oyama teaches or
suggests "a trigger for creating a dedicated bearer, in the wireless access
network, based on traffic parameters associated with the video content
request," as recited in independent claim 1, and commensurately recited in
independent claims 14 and 18.
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(2) Whether the Examiner erred in finding the combination of Yu
and Oyama teaches or suggests "assigning, by the computing device, quality
of service (QoS) parameters to the video content based on the traffic
parameters," as recited in independent claim 1, and commensurately recited
in independent claims 6, 14, 18, and 22.
(3) Whether the Examiner erred in finding the combination of Jana,
Yu, and Oyama teaches or suggests "providing, by the computing device and
to the fixed user device, the video content with the QoS parameters, wherein
the QoS parameters include at least two of a required bit rate, a delay, jitter,
packet dropping probability, or a bit error rate (BER) associated with the
video content," as recited in independent claim 1 and commensurately
recited in independent claim 18 and dependent claims 12, 21, and 25.
( 4) Whether the Examiner erred in finding Oyama teaches or
suggests "where the traffic parameters include one or more of: source or
destination Internet protocol (IP) addresses over which the video content
will be delivered ... ,"as recited in claim 3.
ANALYSIS
We have reviewed the Examiner's rejections in light of Appellants'
arguments the Examiner has erred. We disagree with Appellants'
conclusions and we adopt as our own: (1) the findings and reasons set forth
by the Examiner in the action from which this appeal is taken (Final Act. 2-
11 ); and (2) the reasons set forth by the Examiner in the Examiner's Answer
in response to Appellants' Appeal Brief. (Ans. 4--25.) We concur with the
conclusions reached by the Examiner. We highlight the following points for
emphasis.
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A. Claims 1, 2, and 5
1. "a trigger for creating a dedicated bearer, in the wireless
access network, based on traffic parameters associated with the
video content request"
Appellants raise several challenges to the Examiner's findings
regarding this limitation. (See Final Act. 2-5, 7-8; Ans. 7, 10-18.)
Appellants first argue "[t]he Final Office Action does not disclose or explain
how the traffic parameter (token) in Oyama is associated with the video
request." (Br. 12.) We disagree and are not persuaded the Examiner's
findings are deficient. The Examiner finds Oyama discloses a "trigger" in
the form of a "token" that is used "to set up the session in response to a user
request for a particular content to display." (Ans. 11, 12.) The Examiner
also finds the token functions as a trigger because the token "is passed back
and forth between the mobile terminal and a network operator which is
media specific, but the token and corresponding charges may be declined."
(Ans. 12.) The Examiner further finds Oyama teaches this token "is
generated based off a particular session/stream which is generated, prior to
actual delivery of the content and the required service level contract
parameters." (Ans. 12 (citing Oyama i-fi-f 116-121 and Fig. 19).) The
Examiner also finds "there is a relationship between a given [IP] address for
the particular session setup, and the corresponding QoS parameters." (Ans.
11.) As the Examiner correctly concludes, "traffic parameters" as recited in
claim 1 include "Internet protocol (IP) addresses." (Id. at 10-11 (citing
Spec. i-fi-f 19, 35, and 39).) This is further clear from claim 3 which specifies
the traffic parameters of claim 1 may include "source or destination Internet
protocol (IP) addresses over which the video content will be delivered."
(Claims App'x.) Accordingly, the Examiner finds Oyama teaches a
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"trigger" (token) that is "based on traffic parameters" (e.g., IP addresses)
associated with a "video content request." We agree these findings are
supported by the teachings of the cited reference.
Appellants further challenge the Examiner's findings by arguing "the
session token is associated after the ... multi-media session" has been
created, "which is after the creation of the packet access bearer." (Ans. 12-
13 (emphases added).) According to Appellants, "the token of Oyama
cannot possibly be received, by the computing device, as a trigger for
creating a dedicated bearer ... since the packet access bearer is the
mechanism by which Oyama transports the multimedia session and the
token." (Br. 13-14.) In other words, Appellants argue the "token" disclosed
by Oyama cannot teach the claimed "trigger for creating a dedicated bearer"
as recited in claim 1 because Oyama teaches a bearer has already been
created to transport the token.
Appellants' arguments are not persuasive of Examiner error. As the
Examiner finds, "a bearer is simply a communications channel that does not
carry signaling commands." (Ans. 13.) The Examiner further explains a
communication channel must be open to allow a trigger to be sent:
"[ e ]stablishing a session is required to set up the connection between the
sink and source" in an IP network, "and must occur prior to transmitting any
multimedia data." (Ans. 14.) Thus, based on the Examiner's findings,
Oyama's disclosing the packet access bearer is active (that is, a
communications channel is active between the mobile terminal (user device)
and the remote host (computing device)) does not mean the token cannot be
a "trigger for creating a dedicated bearer ... based on traffic parameters
associated with the video content request," as recited in claim 1 (emphasis
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added). As the Examiner further finds, Oyama teaches the token does act as
a trigger for creating a dedicated bearer, as it is generated "prior to actual
delivery of the content and the required service level contract parameters"
(Ans. 12 (citing Oyama i-f 120)), and also "is utilized to establish the session,
in response to a request ... [and t]he QoS parameters are set up based on
traffic parameters." (Ans. 14 (emphasis added) (citing Oyama i-fi-170-72,
118-121).) We agree the Examiner's findings are supported by the
teachings of the cited reference and are unpersuaded by Appellants'
argument that Oyama's token fails to teach the disputed trigger for creating a
dedicated bearer.
Appellants additionally argue "since Oyama discloses selecting a set
of attributes that describes the bearer requirements, this means that the
bearer attributes are already known. . . . Therefore, Oyama clearly teaches
away from receiving a trigger for creating a dedicated bearer." (Br. 16
(citing Oyama i-f 41) (italicized emphases added).) We disagree. As the
Examiner correctly finds, "it does not matter if the bearer attributes are
known in advance[] ... as the claims don't require the steps to be performed
dynamically." (Ans. 16.) That is, "the claims do not contain language
which indicates a particular order in which the steps are to be taken." (Ans.
17.) We agree. "[A ]lthough a method claim necessarily recites the steps of
the method in a particular order, as a general rule the claim is not limited to
performance of the steps in the order recited, unless the claim explicitly or
implicitly requires a specific order." Baldwin Graphic Systems, Inc. v.
Siebert, Inc., 512 F.3d 1338, 1345 (Fed. Cir. 2008) (citing Interactive Gift
Express, Inc. v. Compuserve Inc., 256 F.3d 1323, 1342-43 (Fed. Cir. 2001)).
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Moreover, as the Examiner further correctly finds, Oyama does not
teach that the bearer attributes are known in advance. Rather, the Examiner
finds Oyama teaches "4 different QoS classes," with the differences in the
classes relating "to the type of content which is being transmitted." (Ans. 16
(citing Oyama i-fi-141--43).) Thus, as the Examiner also correctly finds,
Oyama teaches "multiple possible QoS settings, one of which is selected in
response to the traffic parameters." (Ans. 16.) Therefore, as the Examiner
correctly finds, "selection of one of the QoS profiles is done in response to
the connection being set up for the particular content type to be
transmitted." (Id.)
For the foregoing reasons, we are unpersuaded of error in the
Examiner's finding Oyama teaches or suggests "receiving, by the computing
device, a trigger for creating a dedicated bearer, in the wireless access
network, based on traffic parameters associated with the video content
request," as recited in claim 1. Although Appellants also nominally
challenge the Examiner's findings regarding the limitation "creating, by the
computing device, a dedicated bearer for the fixed user device based on the
trigger" also recited in claim 1, Appellants merely reiterate that Oyama does
not teach or suggest the "receiving" limitation, which we have found
unpersuasive as addressed above. (See Br. 14.)
2. "assigning, by the computing device, quality of service (QoS)
parameters to the video content based on the traffic
parameters "
The Examiner finds the combination of Yu and Oyama teaches or
suggests the "assigning" limitation as recited in claim 1. (Final Act. 6-8
(citing Yu i-f 18; Oyama Figs. 10, 12, 15, 22, i-fi-142--45 and i-fi-f 116-121).)
We agree this finding is supported by the teachings of the cited references.
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Appellants' challenge to this finding is not persuasive, in part because
it addresses the Examiner's findings as to each reference only in piecemeal
fashion. (Br. 15.) Where, as here, the rejections are based upon the
teachings of a combination of references, "[ n ]on-obviousness cannot be
established by attacking references individually." In re Merck & Co., 800
F.2d 1091, 1097 (Fed. Cir. 1986) (citing In re Keller, 642 F.2d 413, 425
( CCP A 1981)). Appellants otherwise merely reiterate arguments regarding
the "receiving" limitation, which we have found unpersuasive as addressed
above. We further note the Examiner's analysis as discussed in the
preceding section overlaps with, and thus also supports, the Examiner's
analysis regarding this limitation.
3. "providing, by the computing device and to the fixed user
device, the video content with the QoS parameters, wherein the
QoS parameters include at least two of a required bit rate, a
delay, jitter, packet dropping probability, or a bit error rate
(BER) associated with the video content"
The Examiner finds the combination of Yu and Oyama teaches or
suggests the "providing" limitation as recited in claim 1. (Final Act. 7-8
(citing Yu i-fi-f 18, 48; Oyama Figs. 10, 12, 15, 22, i-fi-142--45 and i-fi-f 116-
121 ). ) We agree the Examiner's finding is supported by the teachings of the
cited references.
Appellants' challenges to the Examiner's finding are unpersuasive.
First, Appellants misstate the Examiner's finding as premised solely on the
Oyama reference (Br. 15-16), when, instead, the Examiner relies on the
combination of Yu and Oyama as noted above. Appellants' failure to
address the Examiner's findings regarding the combined teachings of these
references is inherently unpersuasive. In re Keller, 642 F.2d at 425.
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Appellants' individual challenge to the Examiner's findings regarding the
Oyama reference is also unpersuasive as not well-founded factually. As the
Examiner correctly finds, Oyama discloses in Figure 12 "a number of QOS
related parameters for a cellular network including a maximum bit rate,
guaranteed bit rate, residual bit error ratio and transfer delay." (Ans. 7-8
(citing Oyama Fig. 12 and i-fi-142--45).) As the Examiner further correctly
finds, Oyama teaches "QOS parameters are assigned based on traffic."
(Ans. 7 (citing Oyama Figs. 15, 14, 22 and i-fi-f 116-121).) Other than the
naked assertion that Oyama fails to disclose the recited limitation (Br. 16),
Appellants do not address the Examiner's findings, e.g., explain why
Oyama's teachings, as cited by the Examiner, fail to teach or suggest the
claimed limitation. Appellants have, therefore, not rebutted the Examiner's
findings. See In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) ("[W]e hold
that the Board reasonably interpreted Rule 41.37 to require more substantive
arguments in an appeal brief than a mere recitation of the claim elements and
a naked assertion that the corresponding elements were not found in the
prior art.").
4. Motivation To Combine
Appellants also argue the Examiner does not provide "a factual basis
to support the conclusion of obviousness" because the Examiner "fails to
cite any portions of Jana or Yu for allegedly disclosing a motive for the
combination." (Br. 19.) Appellants similarly argue the Examiner's further
combination of Jana, Yu, and Oyama is deficient "in that the Examiner fails
to cite any portions of Jana, Yu, or Oyama for allegedly disclosing a motive
for the combination." (Br. 21.)
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We recognize that the Examiner must articulate "reasoning with some
rational underpinning to support the legal conclusion of obviousness." In re
Kahn, 441F.3d977, 988 (Fed. Cir. 2006). However, the Examiner's
reasoning need not appear in, or be suggested by, one or more of the
references on which the Examiner relies upon, as Appellants assert. (Br. 19,
21.) Instead, a reason to combine teachings from the prior art "may be
found in explicit or implicit teachings within the references themselves, from
the ordinary knowledge of those skilled in the art, or from the nature of the
problem to be solved." WMS Gaming Inc. v. Int'! Game Tech., 184 F.3d
1339, 1355 (Fed. Cir. 1999) (citing In re Rouffet, 149 F.3d 1350, 1355 (Fed.
Cir. 1998) ). "Under the correct [obviousness] analysis, any need or problem
known in the field of endeavor at the time of invention and addressed by the
patent can provide a reason for combining the elements in the manner
claimed." KSR Int 'l Co. v. Teleflex Inc., 550 U.S. 398, 420 (2007).
In the instant appeal, the Examiner has provided a rationale
supporting motivation by a person of ordinary skill in the art to achieve the
claimed subject matter. (Final Act. 8; Ans. 19--20.) Appellants have not
provided persuasive evidence or line of reasoning explaining why such
rationale is erroneous or why a person of ordinary skill in the art would not
have reached the conclusions reached by the Examiner. See DyStar
Textilfarben GmbH & Co. Deutsch/and KG v. CH Patrick Co., 464 F.3d
1356, 1368 (Fed. Cir. 2006) ("[T]he proper question is whether the ordinary
artisan possesses knowledge and skills rendering him capable of combining
the prior art references."). Consequently, we are not persuaded that the
Examiner failed to articulate a sufficient rationale for combining Jana, Yu,
and Oyama.
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Appellants additionally posit, in conclusory fashion, that "Jana and
Yu, or the combination of Jana, Yu, and Oyaman [sic] are not analogous art
from the same field of endeavor." (Br. 21.) We disagree, and concur with
the Examiner's findings that, inter alia, Jana, Yu, and Oyama are all
"concerned with video on demand content transmitted over a wireless
network," and, as such, are all analogous art to the field of endeavor of
Appellants' invention. (Ans. 19-21.)
For the foregoing reasons, we are not persuaded of error in the
Examiner's 35 U.S.C. § 103(a) rejection of independent claim 1 over Jana,
Yu, and Oyama. We, therefore, sustain this rejection as well as the rejection
of dependent claims 2 and 5, which Appellants argue collectively with claim
1. (Br. 10, 18.)
B. Claim 3
Claim 3 depends from claim 1, and adds the limitation "where the
traffic parameters include one or more of' several items listed in the
alternative, including "source or destination Internet protocol (IP) addresses
over which the video content will be delivered." (Claims App'x.) The
Examiner cites Oyama as teaching "a wide variety of charging and QoS
features," including "Internet Protocol Quality of Service mechanisms," in
which "an IP address of a source or destination is inherent." (Final Act. 8-
9 (emphasis added).) We agree Oyama teaches or suggests IP addresses as
traffic parameters-for example, in discussing the QoS attributes disclosed
in Figure 12, Oyama also teaches "[a] subscription is associated with one or
more Packet Data Protocol (PDP) addresses, i.e., IP addresses in the case of
IP traffic." (Oyama i-f 44 (emphases added).) The Examiner also "takes
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official notice that traffic parameters which include a sink and source IP
address are well known in the art." (Final Act. 9 (emphasis added).)
Appellants argue that the Examiner's rejection is internally
contradictory because "the Examiner has taken Official Notice and
simultaneously stated that the feature of claim 3 has been disclosed by
Oyama." (Br. 22 (citing Final Act. 3).) We disagree the Examiner's
findings are contradictory, but rather find them to be complementary and
treat them as findings in the alternative. 3
Appellants' additional arguments are conclusory and unpersuasive. In
particular, Appellants acknowledge Oyama "discloses providing IP quality
of services end-to-end which is from a mobile terminal to a remote host,"
but do not explain why this point contradicts or rebuts the Examiner's
findings regarding Oyama's teaching or suggesting the limitations of claim
3. (Br. 22.) Appellants have therefore failed to provide sufficient evidence
or technical reasoning explaining why the Examiner's findings and
conclusions are erroneous.
3 Appellants also object to the Examiner's reliance on Official Notice as
lacking "documentary evidence." (Br. 23 (citing "M.P.E.P. 2144.03(B) and
2144.03(C)").) Appellants contend they timely objected to the Examiner's
conclusion of Official Notice and the Examiner did not properly respond to
the objection. (Br. 23.) Notwithstanding Appellants' arguments, this matter
is not before us because we lack jurisdiction over petitionable matters. See,
e.g., also MPEP § 706.01(8th ed., 9th rev., Aug. 2012) ("[T]he Board will
not hear or decide issues pertaining to objections and formal matters which
are not properly before the Board."); see also MPEP § 1201 ("The Board
will not ordinarily hear a question that should be decided by the Director on
petition .... ").
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For the foregoing reasons, we are not persuaded of error in the
Examiner's 35 U.S.C. § 103(a) rejection of claim 3 over Jana, Yu, and
Oyama. We, therefore, sustain this rejection.
C. Claims 6-8, 10-15, 18-22, and 25
Although Appellants purport to argue claims 6-8, 10-15, 18-22, and
25 separately from claim 1 (Br. 23-29), Appellants rely principally on
incorporating by reference their arguments made in connection with claim 1,
which we have found unpersuasive for the reasons discussed above.
Appellants' contentions as to these claims otherwise amount to no
more than terse statements of what Jana, Yu, and Oyama purportedly
disclose, followed by a conclusory statement that "Jana, Yu, and Oyama do
not disclose or suggest" recited limitations of these claims. (Br. 23-29.)
Such conclusory attorney assertions have little or no value in identifying the
Examiner's alleged error, and, consequently, have little persuasive value.
See 3 7 C.F .R. § 41.3 7 ( c )(iv) ("A statement which merely points out what a
claim recites will not be considered an argument for separate patentability of
the claim."); see also In re Lovin, 652 F.3d at 1357. In making these
conclusory assertions, Appellants do not address the Examiner's findings
and thus have failed to explain why the Examiner's findings are insufficient.
In the absence of sufficient rebuttal to the Examiner's findings, Appellants'
contentions are unpersuasive of Examiner error.
Therefore, for the foregoing reasons, we sustain the Examiner's 35
U.S.C. § 103(a) rejection of claim 6-8, 10-15, 18-22, and 25 over Jana, Yu,
and Oyama.
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DECISION
For the above reasons, the Examiner's rejection of claims 1-3, 5-8,
10-15, 18-22, and 25 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 3 7 C.F .R. § 1.13 6( a )(1 )(iv).
AFFIRMED
tj
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