Ex Parte Nguyen

Patent Trial and Appeal Board

Aug 29, 2016

10949021 (P.T.A.B. Aug. 29, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
10/949,021 0912412004
13214 7590 08/31/2016
The Carter Law Firm, c/o: Jeffrey D, Carter,
Esquire
1107 Caroline Street, Suite 2000
Fredericksburg, VA 22401
FIRST NAMED INVENTOR
JinoNguyen
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.
PF030149 4868
EXAMINER
LANGHNOJA, KUNAL N
ART UNIT PAPER NUMBER
2427
NOTIFICATION DATE DELIVERY MODE
08/31/2016 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):
carterlaw@cox.net
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte IINO NGUYEN
Appeal2015-005311
Application 10/949,021
Technology Center 2400
Before CATHERINE SHIANG, LINZY T. McCARTNEY, and
JOHN D. HAMANN, Administrative Patent Judges.
SHIANG, Administrative Patent Judge.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner's
rejection of claims 13-30, which are all the claims pending and rejected in
the application. We have jurisdiction under 35 U.S.C. § 6(b). We affirm.
STATEMENT OF THE CASE
Introduction
The present invention relates to content transmission systems. See
generally Spec. 1. Claim 13 is exemplary:
13. A method implemented in a digital data stream receiver, said method
comprising steps of:
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Application 10/949,021
receiving, via said digital data stream receiver, a plurality of digital
data streams including data of a list of services provided by said digital data
streams,
wherein for each of said services in said list, said data includes an
original network identifier, a transport stream identifier and a service
identifier;
storing said data in a memory of said digital data stream receiver;
detecting, via said digital data stream receiver, a condition in which at
least two different said received digital data streams include a same original
network identifier and a same service identifier, but a different transport
stream identifier;
in response to detecting said condition, detecting a digital signal
quality rating for each of said at least two different received digital data
streams to thereby determine which one of said at least two different
received digital data streams has a best digital signal quality rating; and
updating said data in said memory based on said determination to
indicate one of said at least two different received digital data streams
having said best digital signal quality rating.
References and Rejections
Claims 13-18 and 22-27 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Uchida (JP 2001-21l126A; Aug. 3, 2001), Van
Horck (US 2006/0230429 Al; Oct. 12, 2006), and Ludvig (US 7,216,170
B2; May 8, 2007).
Claims 19, 21, 28, and 30 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Uchida, Van Horck, Ludvig, and Inose (US
6,687,308 Bl; Feb. 3, 2004).
Claims 20 and 29 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Uchida, Van Horck, Ludvig, Inose, and Cao (US
2004/0187161 Al; Sept. 23, 2004).
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ANALYSIS
On this record, we find the Examiner did not err in rejecting claim 13.
We disagree with Appellant's arguments, and agree with and adopt
the Examiner's findings and conclusions in (i) the action from which this
appeal is taken and (ii) the Answer to the extent they are consistent with our
analysis below. 1
Appellant contends the cited references do not collectively "detecting,
via said digital data stream receiver, a condition in which at least two
different said received digital data streams include a same original network
identifier and a same service identifier, but a different transport stream
identifier; in response to detecting said condition, detecting a digital signal
quality rating for each of said at least two different received digital data
streams to thereby determine which one of said at least two different
received digital data streams has a best digital signal quality rating, " as
recited in claim 13 (emphases added). See App. Br. 5-8, Reply Br. 2--4. In
particular, Appellant asserts:
[Ludvig's paragraph 16, lines 62-67] mention[]
absolutely nothing about actually "detecting" any type of
condition as claimed, much less detecting a specific condition
in which at least two different received digital data streams
include a same original network identifier and a same service
identifier, but a different transport stream identifier, as recited
by the independent claims under appeal. Moreover, this passage
of Ludvig nowhere discloses or suggests that such identifiers
may be used to identify or detect identical services being
transmitted at the same time by different received digital data
streams.
1 To the extent Appellant advances new arguments in the Reply Brief
without showing good cause, Appellant has waived such arguments.
See 37 C.F.R. § 41.41(b)(2).
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Application 10/949,021
Appellants further submit that the instant rejection
appears to be the result of improper hindsight reconstruction ...
the relied upon teachings of Ludvig have absolutely nothing to
do with detecting a situation where an identical service is being
transmitted by different received data streams (as relied upon in
Uchida and Van Horck). As such, the Examiner is improperly
combining isolated teachings of Ludvig, related to potential
network conditions that may exist "when ... services are re-
multiplexed" in a network, with teachings of Uchida and Van
Horck related to detecting a condition when identical services
are simultaneously transmitted by different received data
streams in a network, in an ostensible effort to merely meet the
claim language and deprecate the present invention.
App. Br. 7-8; see also Reply Br. 2-3.
Appellant has not persuaded us of error.
First, because the Examiner relies on the combination of Uchida, Van
Horck, and Ludvig to teach the disputed claim limitations, Appellant cannot
establish nonobviousness by attacking Ludvig individually. See In re Merck
& Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
The Examiner finds-and Appellant does not offer any substantive
argument to dispute-the following: (i) Uchida teaches "detecting, via said
digital data stream receiver, a condition in which at least two different said
received digital data streams [providing similar content]"; (ii) Van Horck
teaches "in response to detecting said condition, detecting a digital signal
quality rating for each of said at least two different received digital data
streams to thereby determine which one of said at least two different
received digital data streams has a best digital signal quality rating." See
Ans. 5---6; claim 13 (emphases added). The Examiner further finds-and
Appellant does not offer any substantive argument to dispute-Ludvig
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teaches "[data] includ[ing] a same original network identifier and a same
service identifier, but a different transport stream identifier." See Ans. 6-7.
Therefore, the Examiner finds Uchida, Van Horck, and Ludvig
collectively teach "detecting, via said digital data stream receiver, a
condition in which at least two different said received digital data streams
include a same original network identifier and a same service identifier, but
a different transport stream identifier; in response to detecting said
condition, detecting a digital signal quality rating for each of said at least
two different received digital data streams to thereby determine which one of
said at least two different received digital data streams has a best digital
signal quality rating," as recited in claim 13 (emphasis added).
The Examiner has provided articulated reasoning with some rational
underpinning as to why one skilled in the art would have modified the
teachings of Uchida and Van Horck to include Ludvig's technique. See
Final Act. 5; Ans. 6-7; KSR Int'! Co. v. Teleflex, Inc., 550 U.S. 398, 418
(2007). Appellant has not persuasively demonstrated why the Examiner's
reasoning is incorrect.
Second, we disagree with Appellant's argument that the proposed
combination is motivated by impermissible hindsight. Our reviewing courts
have not established a bright-line test for hindsight. The U.S. Supreme
Court guides that "[a] factfinder should be aware, of course, of the distortion
caused by hindsight bias and must be cautious of arguments reliant upon ex
post reasoning." KSR, 550 U.S. at 421 (citing Graham v. John Deere Co. of
Kansas City, 383 U.S. 1, 36 (1966)). Nevertheless, the Court has also
qualified the issue of hindsight by stating "[r]igid preventative rules that
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Application 10/949,021
deny factfinders recourse to common sense, however, are neither necessary
under our case law nor consistent with it." KSR, 550 U.S. at 421.
In the present case, we see the hindsight question before us as a
balancing test: whether (1) the Examiner's proffered combination of
references is merely "the predictable use of prior art elements according to
their established functions" (KSR, 550 U.S. at 417), consistent with common
sense; or (2) an artisan would not have reasonably combined the cited
references in the manner proffered by the Examiner but for having the
benefit of the claim to use as a guide (i.e., impermissible hindsight).
Appellant has not demonstrated the Examiner's proffered combination
of references would have been "uniquely challenging or difficult for one of
ordinary skill in the art." See Leapfrog Enters., Inc. v. Fisher-Price, Inc.,
485 F.3d 1157, 1162 (Fed. Cir. 2007) (citing KSR, 550 U.S. at 418).
Further, after reviewing the respective teachings and suggestions of the cited
references, we find weight of the evidence shows the proffered combination
is merely a predictable use of prior art elements according to their
established functions, because the combination uses prior art elements based
on their well-known functions. Therefore, on this record, Appellant has not
persuaded us the Examiner engaged in impermissible hindsight.
Because Appellant has not shown the Examiner erred, we sustain the
Examiner's rejection of claim 13, and independent claim 22 for similar
reasons.
We also affirm the Examiner's rejection of corresponding depending
claims 14--21 and 23-30. Appellant does not offer separate substantive
arguments for those claims, as Appellant merely argues additionally cited
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references do not cure the alleged deficiencies discussed above with respect
to claim 13 (App. Br. 8-9).
DECISION
We affirm the Examiner's decision rejecting claims 13-30.
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).
AFFIRMED
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