Ex Parte Kozlowski

Patent Trial and Appeal Board

Jun 28, 2017

13732269 (P.T.A.B. Jun. 28, 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.
13/732,269 12/31/2012 Anthony Kozlowski P2012-09-14 (290110.560) 1093
70336 7590 06/30/2017
Seed IP Law Group LLP/EchoStar (290110)
701 FIFTH AVENUE
SUITE 5400
SEATTLE, WA 98104
EXAMINER
GEE, ALEXANDER
ART UNIT PAPER NUMBER
2425
NOTIFICATION DATE DELIVERY MODE
06/30/2017 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):
Patentlnfo @ SeedIP. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ANTHONY KOZLOWSKI
Appeal 2017-004539
Application 13/732,2691
Technology Center 2400
Before JOHN A. JEFFERY, BRUCE R. WINSOR, and
JUSTIN BUSCH, Administrative Patent Judges.
BUSCH, Administrative Patent Judge.
DECISION ON APPEAL
Appellant seeks our review under 35 U.S.C. § 134(a) of the
Examiner’s final decision rejecting claims 1—5, 7—14, 16, 17, 19, and 20.
Claims 6, 15, and 18 were canceled previously. We have jurisdiction under
35 U.S.C. § 6(b).
We affirm-in-part.
1 According to Appellant, the real party in interest is EchoStar Technologies
L.L.C. App. Br. 2.
Appeal 2017-004539
Application 13/732,269
CLAIMED SUBJECT MATTER
Claims 1,10, and 17 are independent claims. The claims generally
relate to wirelessly transmitting data on two separate wireless networks and
providing a higher priority to the wireless network transmitting a first data
type. Spec. 1—2.
Claims 1 and 17 are reproduced below:
1. A method, comprising:
receiving, by control circuitry within a first television
receiver, media content from a media content provider;
establishing by a first wireless bridge circuit, a first
wireless network between the first television receiver and a
second wireless bridge circuit coupled to a second television
receiver, the first wireless network having a first unique serial set
identifier;
establishing a second wireless network between the first
wireless bridge circuit and the second wireless bridge circuit, the
second wireless network being separate from the first wireless
network, the second wireless network having a second unique
serial set identifier; and
transmitting, by the first and second wireless bridge
circuits, the media content from the first television receiver to a
second television receiver, the transmitting including:
transmitting a first data type only over the first
wireless network, the first wireless network being a higher
priority wireless network;
transmitting a second data type only over the second
wireless network the second wireless network being a lower
priority wireless network, and
automatically reducing bandwidth of the second
wireless network and increasing bandwidth of the first
wireless network, by the first and second television
receivers, when a high data volume approaching
maximum capacity is being transmitted across the first and
second wireless networks.
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17. A method, comprising:
receiving, by control circuitry within a first television
receiver, internet data from the Internet;
receiving, by the control circuitry within the first
television receiver, media data from a media content provider;
establishing, by a single wireless bridge circuit coupled to
the control circuitry, a first, higher priority, wireless network
having a first unique serial set identifier;
establishing, by the wireless bridge circuit, a second, lower
priority, wireless network having a second unique serial set
identifier, the first and second wireless networks providing
separate communication paths between the first television
receiver and a second television receiver;
transmitting, from the first television receiver to the
second television receiver, via the wireless bridge circuit, the
media data over the first wireless network and the Internet data
over the second wireless network and
automatically reducing bandwidth of the second wireless
network and increasing bandwidth of the first wireless network,
by the first and second television receivers, when a high data
volume approaching maximum capacity is being transmitted
across the first and second wireless networks.
REJECTIONS
Claims 1—4, 7, 10, 16, 17, and 19 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Pal (US 2009/0296000 Al; Dec. 3,
2009), Hassan (US 2012/0147268 Al; June 14, 2012), Cook (US 8,131,303
B2; Mar. 6, 2012), and Manor (US 2012/0201255 Al; Aug. 9, 2012).
Final Act. 2—10.
Claims 5 and 12—14 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Pal, Hassan, Cook, Manor, and Nakata (US 2009/0064250
Al; Mar. 5, 2009). Final Act. 10-11, 1^U15.
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Application 13/732,269
Claims 8, 9, 11, and 20 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Pal, Hassan, Cook, Manor, and Lee
(US 2006/0053452 Al; Mar. 9, 2006). Final Act. 11-14.
OPINION2 * 4
Claims 1—5, 7—14, and 16
Claim 1 is directed to a method in which a first television receiver
receives media content from a media content provider and transmits the
received media content to a second television receiver. The Examiner finds
Pal teaches a first television receiver that receives content from a content
source and transmits content to a second television receiver. Final Act. 2—3
(citing Pal 10—12, 14—16, 18, 19; Figure 1). The Examiner further finds
Hassan teaches transmitting, between a computing device and a television, a
first data type over a first wireless network and a second data type over a
second wireless network. Id. at 4 (citing Hassan || 31—36; Figure 1).
Appellant contends the Examiner erred in finding Pal teaches or
suggests a first television receiver that transmits the same media content it
received from a media content provider to a second television receiver.
App. Br. 16. In particular, Appellant asserts Pal teaches a first television
receiver that receives media content from a media content provider, and
transmits aggregated data to a second television receiver, such as ordering,
2 Appellant asserts the Examiner has failed to respond to the substance of
previously-presented arguments. App. Br. 14. This is a petitionable
matter, not an appealable matter and, accordingly, is not properly before us.
See In re Schneider, 481 F.2d 1350, 1356—57 (CCPA 1973); In re Mindick,
371 F.2d 892, 894 (CCPA 1967); see also Manual of Patent Examining
Procedure (MPEP) §§ 1002.02(c)(3), 1003, and 1201.
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Application 13/732,269
diagnostic and usage data. Id. (citing Pal Tflf 17, 18, 20); see also Reply Br. 4
(citing Pal Abstract; || 12, 24, 44). Appellant argues the aggregated data
transmitted from the first television receiver to the second television receiver
is not the media content received from the media content provider.
App. Br. 16; see also Reply Br. 4.
We are not persuaded of Examiner error because Appellant’s
arguments are not responsive to the rejection as articulated by the Examiner.
Specifically, the Examiner finds “Hassan teaches that a first display device
may transmit media data to a second display device.” Ans. 19. We agree
with the Examiner’s findings and adopt them as our own.
Hassan is directed to pairing a wireless computer with a remote audio­
video presentation device. Hassan, Abstract. Figure 1 of Hassan, relied
upon by the Examiner, is illustrative and is reproduced below:
FIG. 1
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Application 13/732,269
Figure 1 of Hassan “illustrates an environment in which a computing device
[120] may be used to control presentation of audio-video information on a
presentation device . . ., which in this example is represented by television
130.” Hassan 130. As illustrated, computing device 120 streams audio­
video content data through audio-video channel 132 and further transmits
commands to television 130 through side channel 134. Id. 131. Hassan
further teaches computing device 120 may obtain audio-video content from
the Internet 150 through connection 142, and further stream the audio-video
content through audio-video channel 132 to television 130. Id. 141.
Accordingly, Hassan teaches or suggests computing device 120 (the claimed
“first television receiver”) that receives audio-video content data (the
claimed “media content”) and transmits the audio-video content data to
television 130 (the claimed “second television receiver”).
Claim 1 further recites “automatically reducing bandwidth of the
second wireless network and increasing bandwidth of the first wireless
network, by the first and second television receivers, when a high data
volume approaching maximum capacity is being transmitted across the first
and second wireless networks.” In the Answer, the Examiner clarifies the
rejection of claim 1 by finding that although Manor does not disclose
allocating bandwidth “between two networks between two television
receivers,” Manor’s teaching of allocating bandwidth between sessions may
be applied to the “two networks between television receives for exchanging
media data between the two receivers” as taught by the combination of Pal,
Hassan, and Cook. Ans. 18.
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In response, Appellant contends “[i]t is not apparent. . . how the
networks disclosed in Pal in view of Hassan and Cook may be modified
using the method taught in Manor to reduce bandwidth for the lower priority
network . . . and increase the bandwidth for the higher priority network”
disclosed in the combination of Pal, Hassan, and Cook. Reply Br. 3.
Specifically, Appellant asserts Manor teaches allocating bandwidth of a
communication path between a network and user equipment using a
bandwidth allocator inside a third party device. Id. Appellant argues
Manor’s bandwidth allocator “is not applicable to the networks disclosed in
the Pal, Hassan and Cook combination because, in the Pal, Hassan and Cook
combination, the bandwidth allocation is allegedly performed by first and
second television receivers, that is, by the television receivers themselves
that are in communication.” Id. at 3^4 (emphasis added). Appellant further
argues Manor does not teach increasing or reducing bandwidth of a first or
second wireless network, respectively, because Manor’s sessions
communicate over the same network whose bandwidth is fixed.
Reply Br. 2; see also App. Br. 15.
We are not persuaded of Examiner error because Appellant’s
arguments improperly attack the references individually though the rejection
is based on the combined teachings of the references. The test for
obviousness is not what the references show individually but what the
combined teachings would have suggested to one of ordinary skill in the art.
See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986); see also
Merck & Co. v. Biocraft Labs., Inc., 874 F.2d 804, 807—08 (Fed. Cir. 1989)
(“[T]he question under 35 U.S.C. [§] 103 is not merely what the references
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expressly teach but what they would have suggested to one of ordinary skill
in the art at the time the invention was made.”).
Paragraph 28 of Manor, as relied upon by the Examiner (Final Act. 6),
teaches:
In a fourth network condition, there is maximum bandwidth
usage, with a high number of sessions being initiated,
maintained, and terminated. In this condition, there may be little
or no available bandwidth to allocate to new low priority
sessions. Also, in this condition, there is no optional
enhancement bandwidth that can be re-allocated to new sessions.
In fact, lower priority sessions may experience reduced
bandwidth to allow bandwidth for higher priority sessions.
Thus, Manor teaches automatically reducing bandwidth of a lower
priority session and increasing bandwidth of a higher priority session when a
high data volume approaching maximum capacity is being transmitted
across the first and second sessions. The Examiner does not rely on Manor
to teach allocating bandwidth of a communication path between a network
and user equipment; or reducing bandwidth of existing communication
sessions over a network whose bandwidth is fixed; the Examiner merely
relies on Manor for its teaching of bandwidth allocation. The Examiner
relies on Hassan to teach transmitting, between a computing device and a
television, audio-video content data over an audio-video channel (the
claimed “first wireless network”) and commands over a side channel (the
claimed “second wireless network”). Final Act. 4 (citing Hassan || 31—36;
Figure 1). The Examiner further relies on Cook to teach “distributing] the
bandwidth so that the first network is allocated more bandwidth than the
second network.” Id. at 5 (citing Cook 2:36—67, 3:1—67, 4:1—46, 6:3—18).
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We agree with the Examiner’s findings and adopt them as our own.
Accordingly, the Examiner’s proposed combination of Pal, Hassan, Cook,
and Manor teaches or suggests automatically reducing bandwidth of one
channel (e.g., a side channel) (the claimed “first wireless network) and
increasing bandwidth of the other channel (e.g., an audio-video channel) (the
claimed “second wireless network), by a computing device and a television,
when a high data volume approaching maximum capacity is being
transmitted across the channels, as recited in claim 1.
In the Answer, the Examiner clarifies the rationale for combining Pal
and Hassan by finding it would have been obvious to a person of ordinary
skill in the art to apply the method taught in Hassan to Pal
because the exchange of media content data from one display
device/receiver to another is common in the art in order to allow
a user to stream content from the user’s network/media provider
through a common node, such as a network router or STB, to
other devices located within the person’s dwelling.
Ans. 19.
In response, Appellant contends “the Examiner has failed to provide
any reason why one would want to modify Pal.” Reply Br. 5. In particular,
Appellant asserts Pal already discloses a second receiver receiving content
from a content source, and argues “the Examiner has not explained any
benefit to modifying this way of receiving content in Pal to make it so that
content is instead streamed from one common node to other devices in the
person’s dwelling.” Id. Appellant further asserts Pal is directed to an
analyzing operation of receivers by exchanging ordering, diagnostic, and
usage data, and argues there is no reason provided as to why one of ordinary
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skill in the art would want modify Pal to make it so that content is streamed
from one common node to other devices in the person’s dwelling. Id. at 5—6.
We remain unpersuaded of Examiner error. The Examiner has
articulated a reason for the proposed combination based on rational
underpinnings. See KSRInt’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007).
The Court in KSR further held, “the 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.” Id. Appellant has not persuasively
shown the Examiner’s reasoning to be in error.
For the reasons discussed supra, we are unpersuaded of Examiner
error. Accordingly, we sustain the Examiner’s rejection of independent
claim 1. For similar reasons, we also sustain the Examiner’s rejection of
independent claim 10, which recites similar limitations, and is not argued
separately. Further, we sustain the Examiner’s rejection of claims 2—5, 7—9,
11—14, and 16, which depend therefrom and were not argued separately.
Claims 17, 19, and 20
Claim 17 recites, inter alia, “transmitting, from the first television
receiver to the second television receiver, via the wireless bridge circuit, the
media data over the first wireless network and the Internet data over the
second wireless network.” Appellant contends “the Examiner has failed to
present aprima facie case of obviousness for claim 17.” App. Br. 18. In
particular, Appellant argues the Examiner ignores the argued limitation and
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Application 13/732,269
does not allege the argued limitation is disclosed by Pal, Hassan, Cook, or
Manor. Id.
We agree with Appellant. The Examiner has a duty to give notice of
the rejection with sufficient particularity to give Appellant a fair opportunity
to respond to that rejection. See 35 U.S.C. § 132(a). Section 132 requires
sufficient notice be provided to an application, as noted by the Federal
Circuit:
[A] 11 that is required of the [Patent] [0]ffice to meet its prima
facie burden of production is to set forth the statutory basis of the
rejection and the reference or references relied upon in a
sufficiently articulate and informative manner as to meet the
notice requirement of [35 U.S.C.] § 132.
In re Jung, 637 F.3d 1356, 1363 (Fed. Cir. 2011).
Here, the Final Rejection indicates independent claims 1, 10, and 17
are rejected under 35 U.S.C. § 103(a) as unpatentable over Pal, Hassan,
Cook, and Manor. Final Act. 2. Though the Examiner addresses claims 1,
10, and 17 together in the body of the rejection, id. at 2—7, we find the
Examiner did not address the argued limitation of claim 17. Thus, we find
the Examiner did not articulate which aspects of the Pal, Hassan, Cook,
and/or Manor references were relied on for teaching the argued limitation in
a manner sufficient to give Appellant a fair opportunity to respond to the
rejection of claim 17.
Thus, we find the Examiner has not established a prima facie case for
claim 17. Accordingly, we do not sustain the rejections of (1) claim 17; and
(2) claims 19 and 20, which depend from claim 17.
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DECISION
For the above reasons, the Examiner’s decision to reject claims 1—5,
7—14, and 16 is affirmed, but the Examiner’s decision to reject claims 17, 19,
and 20 is reversed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 41.50(f).
AFFIRMED-IN-PART
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