Ex Parte McCoy et al

Patent Trial and Appeal Board

Aug 30, 2018

13429166 (P.T.A.B. Aug. 30, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO.
13/429, 166
103865 7590
Procopio - SPE
525 B Street
Suite 2200
FILING DATE
03/23/2012
09/04/2018
San Diego, CA 92101
FIRST NAMED INVENTOR
Charles McCoy
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.
l 14514-082UT1 7838
EXAMINER
FLANDERS, ANDREW C
ART UNIT PAPER NUMBER
2656
NOTIFICATION DATE DELIVERY MODE
09/04/2018 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):
docketing@procopio.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CHARLES MCCOY, LEO MARK PEDLOW, JR.,
JASON WALLACE, and TRUE XIONG
Appeal2017-004394
Application 13/429, 166
Technology Center 2600
Before ERIC S. FRAHM, JOHN D. HAMANN, and JOYCE CRAIG,
Administrative Patent Judges.
CRAIG, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's
Final Rejection of claims 1-3, 5-13, 15-18, and 20. 1, 2 We have jurisdiction
under 35 U.S.C. § 6(b ).
We affirm.
1 According to Appellants, Sony Corporation and Sony Pictures
Entertainment, Inc. are the real parties in interest. App. Br. 2.
2 In the Answer, the Examiner withdrew the rejection of claims 4, 14, and
19 under pre-AIA 35 U.S.C. § 103(a) as unpatentable over the combination
of Maharajh, Thenthiruperai, Thomas, and Liu. Ans. 13.
Appeal2017-004394
Application 13/429,166
INVENTION
Appellants' invention relates to an Internet Protocol television (IPTV)
radio device using a low-bandwidth connection. Abstract. Claim 1 is
illustrative and reads as follows:
1. A method of providing audio services to an Internet
television device using a low-bandwidth Internet
connection, the method comprising:
configuring the Internet television device to operate
and receive audio only services using a low-bandwidth
Internet connection when only the low-bandwidth Internet
connection is available;
presenting a list of authorized services on a display
of the Internet television device;
receiving one of: ( 1) a selection from the list of
authorized services; or (2) a search word for desired
services from a user;
searching using the search word, aggregating search
results, and presenting a playlist of services and stations
obtained from the search results based on a playback
history of the user and modular capabilities of the Internet
television device, when the desired services are not in the
list of authorized services and the search word is received;
enabling a customer to select a service from the
play list of services and stations;
receiving the service selected from the playlist of
services and stations; and
generating and sending only audio portion of one of:
the selection from the list of authorized services; or the
selected service from the play list of services and stations
to the Internet television device.
REJECTIONS
Claims 1, 6, 7, 9--12, 15-17, and 20 stand rejected under pre-AIA
35 U.S.C. § I03(a) as unpatentable over the combination ofMaharajh et al.
(US 2008/0201225 Al; published Aug. 21, 2008) ("Maharajh") and
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Appeal2017-004394
Application 13/429,166
Thenthiruperai et al. (US 7,069,014 Bl; issued June 27, 2006)
("Thenthiruperai"). Final Act. 4--8.
Claims 2, 3, 13, and 18 stand rejected under pre-AIA 35 U.S.C.
§ I03(a) as unpatentable over the combination of Maharajh, Thenthiruperai,
and Thomas et al. (US 2009/0013348 Al; published Jan. 8, 2009)
("Thomas"). Final Act. 8-10.
Claims 5 and 8 stand rejected under pre-AIA 35 U.S.C. § I03(a) as
unpatentable over the combination of Maharajh, Thenthiruperai, and Kulis et
al. (US 8,438,485 B2; issued May 7, 2013) ("Kulis"). Final Act 12-15.
ANALYSIS
We have reviewed the rejections of claims 1-3, 5-13, 15-18, and 20
in light of Appellants' arguments that the Examiner erred. We have
considered in this decision only those arguments Appellants actually raised
in the Briefs. Any other arguments Appellants could have made, but chose
not to make, in the Briefs are waived. See 37 C.F.R. § 4I.37(c)(l)(iv).
Appellants' arguments are not persuasive of error. We agree with and
adopt as our own the Examiner's findings of facts and conclusions as set
forth in the Answer (Ans. 2-15) and in the Action from which this appeal
was taken (Final Act. 4--10, 12-15). We provide the following explanation
for emphasis.
In rejecting claim 1, the Examiner found Maharajh teaches or suggests
all of the recited limitations, except sending only audio when only the low
bandwidth connection is available. The Examiner relied on Thenthiruperai
as teaching that limitation. Final Act. 4--5.
Appellants contend the Examiner erred because cited portions of
Maharajh and Thenthiruperai do not teach or suggest the limitation
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Application 13/429,166
"generating and sending only audio portion of one of: the selection from the
list of authorized services; or the selected service from the playlist of
services and stations to the Internet television device," as recited in claim 1.
App. Br. 7, 13 (Claims App'x). Appellants argue the cited portions of the
references "fail to disclose the specifics of generating and sending audio
portion from the first or second selection to the IPTV in the context of other
limitations of claim 1." App. Br. 7.
We are not persuaded the Examiner erred. The Examiner found
Maharajh at least suggests selecting services, items from a playlist, and/or
stations. Ans. 14 (citing Maharajh ,r 192). The Examiner also found
Maharajh teaches that broadcast rights may be considered in a profile, and
that the teaching of cable and pay services like AOL suggest authorization.
Id. (citing Maharajh ,r 130). The Examiner combined the teachings of
Maharajh with those of Thenthiruperai, which the Examiner found teaches
the ability to eliminate or remove video from an audio/video stream when
bandwidth is limited. Id.
Although Appellants contend the cited portions of the references "fail
to disclose the specifics of generating and sending audio portion from the
first or second selection to the IPTV in the context of other limitations of
claim 1," Appellants do not provide any persuasive explanation to support
their argument. See App. Br. 7. It is well settled that mere attorney
arguments and conclusory statements, which are unsupported by factual
evidence, are entitled to little probative value. In re Geisler, 116 F.3d 1465,
1470 (Fed. Cir. 1997); see also In re Pearson, 494 F.2d 1399, 1405 (CCPA
1974) (Attorney argument is not evidence.).
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Application 13/429,166
Moreover, the test for obviousness is not whether the claimed
invention is expressly taught in any one or all of the references, but whether
the claimed subject matter would have been obvious to those of ordinary
skill in the art in light of the combined teachings of those references. See In
re Keller, 642 F.2d 413,425 (CCPA 1981). Appellants do not persuasively
address the combined teachings of Maharajh and Thenthiruperai. Nor do
Appellants persuasively rebut the Examiner's findings and explanations in
the Answer.
For these reasons, we are not persuaded the Examiner erred in finding
that the combination of Maharajh and Thenthiruperai teaches or suggests the
disputed limitation of claim 1.
Accordingly, we sustain the Examiner's§ 103(a) rejection of
independent claim 1, as well as the Examiner's§ 103(a) rejection of
independent claims 11 and 17, which Appellants argue are patentable for
similar reasons. App. Br. 8. We also sustain the Examiner's rejections of
dependent claims 2, 3, 5-10, 12, 13, 15, 16, 18, and 20, not argued
separately with particularity. Id. at 6-11.
DECISION
We affirm the decision of the Examiner rejecting claims 1-3, 5-13,
15-18, and 20.
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). See
37 C.F.R. § 4I.50(f).
AFFIRMED
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