Ex Parte Patil et al

Patent Trial and Appeal Board

Jul 29, 2016

13894562 (P.T.A.B. Jul. 29, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/894,562 05/15/2013 Abhishek P. Patil
36738 7590 08/02/2016
ROGITZ & AS SOCIA TES
750B STREET
SUITE 3120
SAN DIEGO, CA 92101
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.
200902 7 61. 02 7490
EXAMINER
MATTIS, JASON E
ART UNIT PAPER NUMBER
2461
NOTIFICATION DATE DELIVERY MODE
08/02/2016 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):
Noelle@rogitz.com
eofficeaction@appcoll.com
J ohn@rogitz.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Exparte ABHISHEKP. PATIL, XIANGPENG JING,
AIXIN LIU, and DJUNG NGUYEN
Appeal2015-003333
Application 13/894,562
Technology Center 2400
Before JASON V. MORGAN, MELISSA A. HAAPALA, and
NABEEL U. KHAN, Administrative Patent Judges.
KHAN, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 appeal under 35 U.S.C. § 134(a) from the Final Rejection
(June 26, 2014) of claims 21-24, 27-29, 31-37, and 39-50.2 We have
jurisdiction under 35 U.S.C. § 6(b). We affirm-in-part.
1 According to Appellants, the real parties in interest are Sony Corp. and
Sony Electronics, Inc. App. Br. 2.
2 The Examiner withdrew the nonstatutory double patenting rejection of
claims 22-24 and 26-29, which was the only rejection remaining for claim
26. See Final Act. 8, Ans. 2. Claim 26 recites similar subject matter as
claim 38, which is objected to as being dependent upon a rejected base
claim, but allowable if rewritten in independent form. See Final Act. 34.
We accordingly treat claim 26 as not rejected, i.e., likewise objected to. We
leave the Examiner to confirm the above.
Appeal2015-003333
Application 13/894,562
THE INVENTION
Appellants' invention "relates generally to monitoring wireless link
quality in network-enabled TVs and more specifically for providing
indications thereof to a user." Spec. 1.
21. A device comprising:
at least one networked processor; and
at least one computer memory associated with the processor and
bearing instructions which when executed by the processor
configure the processor for:
gathering information pertaining to quality of a link over which
the processor receives streamed multimedia content;
determining if link quality associated with the link violates a
threshold at least in part by testing current link signal strength
against a minimum threshold, and/or comparing packet loss per
second against a threshold maximum packet loss per second,
and/or comparing streaming delay against a threshold maximum
deiay period; and
responsive to a determination that the link quality violates the
threshold, presenting a prompt on a display for a user to select an
instruction; and
responsive to a user selection of the instruction on the display,
reporting poor link quality to a network server accessed by
technical personnel such that the server can respond to link
quality conditions.
34. Method for sending audio video (A/V) signals from an
audio video signal provider different from a manufacturer of a
receiver, compnsmg:
sending to the receiver A/V data having a first resolution over a
network link;
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based on the receiver determining whether at least one quality
index related to the network link violates a threshold, receiving
from the receiver a report that the at least one quality index
related to the network link violates the threshold; and
responsive to receiving the report from the receiver that the at
least one quality index related to the network link violates the
threshold, sending, to the receiver without further input from the
receiver, video having a second resolution less than the first
resolution.
46. Server computer, comprising:
at least one processor accessing at least one computer readable
storage medium bearing instructions which when executed by
the processor cause the processor to undertake a method
compnsmg:
receiving at least one link quality report from a system to which
video is being streamed from a server, the link quality report
indicating that at least one metric of link quality as measured by
the system violates a threshold;
responsive to the link quality report, automatically adjusting
streaming video bandwidth, and/or sending a message to the
system that streaming video to the system is not possible, and/or
sending a message to the system that streaming video will be of
a first resolution lower than a second resolution;3 and
receiving from at least one receiver link quality indicia for access
thereof by a server associated with a manufacturer of the
receiver.
3 The Appeal Brief' s claims appendix fails to account for a prior amendment
of claim 46. Arndt. (May 6, 2014) 8 (changing "streamlining" to
"streaming").
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Application 13/894,562
REFERENCES and REJECTIONS
The Examiner rejects claims 46-49 under 35 U.S.C. § 112, first
paragraph, as failing to comply with the written description requirement.
The Examiner rejects claim 21under35 U.S.C. § 103 as being
unpatentable over Sano (US 2005/0059350 Al; March 17, 2005), Ahmad
(US 2008/0013613 Al; Jan. 17, 2008), and Lee (US 2007/0283401 Al; Dec.
6, 2007).
The Examiner rejects claims 22 and 24 under 35 U.S.C. § 103 as
being unpatentable over Sano and Savoor (US 2010/0322091 Al; Dec. 23,
2010).
The Examiner rejects claims 23, 27, and 29 under 35 U.S.C. § 103 as
being unpatentable over Sano, Savoor, and Ahmad.
The Examiner rejects claim 28 under 35 U.S.C. § 103 as being
unpatentable over Sano, Savoor, and Papakostas (US 2011/0053513 Al;
Mar. 3, 2011).
The Examiner rejects claim 31under35 U.S.C. § 103 as being
unpatentable over Sano, Savoor, and Tinsman (US 2011/0255535 Al; Oct.
20, 2011).
The Examiner rejects claims 32 and 33 under 35 U.S.C. § 103 as
being unpatentable over Sano, Savoor, and Weaver (US 2012/0079520 Al;
Mar. 29, 2012).
The Examiner rejects claims 34, 36, 37, 43, and 50 under
35 U.S.C. § 103 as being unpatentable over Sano, Savoor, and Zhou
(US 2010/0098047 Al; Apr. 22, 2010).
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Application 13/894,562
The Examiner rejects claims 35, 39, and 41 under 35 U.S.C. § 103 as
being unpatentable over Sano, Savoor, Zhou, and Ahmad.
The Examiner rejects claim 40 under 35 U.S.C. § 103 as being
unpatentable over Sano, Savoor, Zhou, and Papakostas.
The Examiner rejects claim 42 under 35 U.S.C. § 103 as being
unpatentable over Sano, Savoor, and Guo (US 2009/0175201 Al; July 9,
2009).
The Examiner rejects claims 44 and 45 under 35 U.S.C. § 103 as
being unpatentable over Sano, Savoor, Zhou, and Weaver.
ISSUES
1. Did the Examiner err in concluding the Specification does
not describe "sending a message to the system that
streaming video to the system is not possible, and/or sending
a message to the system that streaming video will be of a
first resolution lower than a second resolution," in such a
way as to reasonably convey to one of skill in the art that the
inventor had possession of this subject matter recited in
claim 46?
2. Did the Examiner err in finding the combination of Sano,
Ahmad, and Lee teaches or suggests "responsive to a
determination that the link quality violates the threshold,
presenting a prompt on a display for a user to select an
instruction," as recited in claim 21?
3. Did the Examiner err in finding the combination of Sano,
Savoor, and Zhou teaches or suggests "responsive to
receiving the report from the receiver that the at least one
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quality index related to the network link violates the
threshold, sending, to the receiver without further input from
the receiver, video having a second resolution less than the
first resolution," as recited in claim 34?
ANALYSIS
Issue 1
Independent claim 46 and depending claims 47-49 are rejected under
35 U.S.C. § 112, first paragraph, as lacking a written description. Claim 46
recites the following at-issue subject matter: "sending a message to the
system that streaming video to the system is not possible, and/or sending a
message to the system that streaming video will be of a first resolution lower
than a second resolution."
The Examiner finds two of the above features are not described by the
originally-filed Specification. Final Act. 10.4 Particularly, the Examiner
finds the Specification does not describe sending a message that streaming
video is not possible or sending a message that streaming video will have a
lower resolution. Id. 5
4 The Examiner's findings are also directed to claims 48 and 49, which
respectively require performance of the "not possible" and "lower
resolution" features, i.e., respectively recite in non-alternative form.
5 Because "streamingling video" cannot be both "not possible" and be
streamed at a lower resolution, the claimed invention cannot be reasonably
understood as sending both at-issue messages in response to the report.
Because this issue is not raised by the Examiner, we consider only whether
each of the at-issue messages is described by the Specification. In the event
of further prosecution the Examiner may wish to review claim 46 in
consideration of the above.
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Appellants argue the Specification's pages 7-8 describe notifications
that convey the at-issue messages. App. Br. 5-6; Reply Br. 1-2.
Specifically, Appellants argue:
The second full paragraph of page 8 teaches when the link quality
can no longer satisfy the threshold (and thus cannot sustain the
necessary network bandwidth for good quality video streaming
applications), a prompt with such information can be presented
to the user. Thus, the message described on page 8 is that link
quality can no longer sustain good video streaming, which means
that, in systems that do not have lower quality streamlining video
as a backup, the user is notified that streaming video is not
possible. The second full paragraph of page 7 further amplifies
this by stating that some content may be blocked altogether
responsive to the same determination of poor link quality that
triggers the message on page 8.
App. Br. 5-6. Appellants further argue Figure 2 and pages 7 and 8 of the
Specification describe a unified flow of sequential logic; therefore, a skilled
artisan would understand that streaming video of a first resolution lower than
a second resolution responsive to the same determination of poor link
quality that triggers the message on page 8 would understand that Appellant
possessed the message claimed. Reply Br. 2.
We agree with Appellants' argument. To satisfy the written
description requirement, a patent specification must "reasonably convey[] to
those skilled in the art that the inventor had possession of the claimed
subject matter as of the filing date." Ariad Pharm., Inc. v. Eli Lilly and Co.,
598 F.3d 1336, 1351 (Fed. Cir. 2010) (citing Vas-Cath Inc. v. Mahurkar,
935 F.2d 1555, 1562-63 (Fed. Cir. 1991)).
Page 7 and Figure 2 of the Specification describe blocking and
varying of streaming content in response to poor link quality. Page 7 states,
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for example, "content that is of a character, e.g., high bandwidth HD, which
prevents proper display under current link quality conditions, may be
blocked'' (emphasis added). Page 7 further states "[i]f one or more quality
indicia fall below the respective thresholds, the user may be prompted at
block 58 to take corrective action." See also Figure. 2. Additionally, page 7
states "the link quality indicia may be sent to the content provider's network
server so that the server can send to the TV only content that can be
supported by current network conditions," such as "the same content as the
content currently being delivered except with a lower resolution" (emphasis
added).
Page 8 of the Specification describes notifications generated in
response to poor link quality and, moreover, describing the cause and
corrective action. Page 8 states, for example, "when the link quality can no
longer satisfy the threshold (and thus cannot sustain the necessary network
bandwidth for good quality video streaming applications), a prompt with
such information can be presented to the user" (emphasis added).
The above statements convey that the user may receive a detailed
notification responsive to poor link quality, stating the cause of poor link
quality, and stating the corrective actions to be taken. The first paragraph of
the invention's summary further conveys this concept of providing users the
same link quality information provided to technicians, stating "it is
advantageous to provide enough information to the end user which can be
passed on to the service representative regarding wireless link quality."
Spec. 2.
Considering all the above, the Specification describes a user
notification responsive to poor link quality and stating the service provider's
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corrective action in detail, e.g., denoting the disclosed blocking of streamed
content altogether or disclosed decreasing of streamed content resolution.
We conclude the cited description would reasonably convey to one of
ordinary skill that the inventor had possession of (i) sending a message that
streaming video is not possible (ii) and sending a message that streaming
video will have a lower resolution.
Accordingly, we do not sustain the rejection of claims 46-49.
Issue 2
Independent claim 21 is rejected as obvious over Sano, Ahmad, and
Lee. Claim 21 recites the following at-issue limitation: "responsive to a
determination that the link quality violates the threshold, presenting a
prompt on a display for a user to select an instruction."
The Examiner finds Sano's "reception quality level" bars G,
illustrated by Figures 6B and 9, are each a prompt insofar as being displayed
if/when reception quality falls below a threshold level and accordantly
urging the user to seek out a location of better reception. Ans. 4-5 (citing
Sano ,-i,-i 67-70, 80-84). The Examiner finds Lee suggests incorporating a
selectable "report" instruction, e.g., an accompanying icon button whereby
the user instructs the device to report the poor reception. Id. at 5-6 (citing
Lee ,-i,-i 23-31 ).
Appellants argue: "No matter how the examiner wants to characterize
it, no evidence exists in the evidence of record that a simple bar graph is a
'prompt for a user to take action'. It is a bar graph that a user can choose to
stare at passively." App. Br. 7. Appellants further argue Sano's bar graph G
does not urge or even offer selection of an action, but rather at best urges
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action only due to "the knowledge of the user to move around based on what
the user is seeing on the bar graph." Reply Br. 3.
We are not persuaded by Appellants' arguments. We agree with the
Examiner that Sano teaches, responsive to a determination that the link
quality violates the threshold, presenting information, in the form of a bar
graph, for a user to take action (e.g., move to a better location). Final Act.
12 (citing Sano ,-i,-i 67-70 and 80-84); Ans. 4. We also agree with the
Examiner that Lee teaches a prompt to select an instruction, in the form of a
button to report a problem and subsequent reporting process asking the
customer to choose to provide a description of the problem. Final Act. 14
(citing Lee ,-i,-i 23-31); Ans. 5. Appellants at best show Sano' s bar graphs do
not alone constitute a prompt urging the user to select an instruction. Reply
Br. 3. This contention attacks Sano individually and thereby fails to address
the Examiner's findings as a whole. In re Keller, 642 F.2d 413, 426 (CCPA
1981) ("[O]ne cannot show non-obviousness by attacking references
individually where, as here, the rejections are based on combinations of
references."). Even if it is assumed ( arguendo) that Sano' s bar graphs G is
not a prompt to select an instruction, the Examiner's findings for Sano' s bar
graphs Gas modified in view of Lee's teachings-i.e., combined with Lee's
button for instructing a device to report poor reception-is sufficient to
support the Examiner's finding that the combination of Sano and Lee
teaches a "prompt on a display for a user to select an instruction."
Appellants further argue: "Lee uses a subjective report that is an
explicit alternative to Sano' s quantitative determinations[. As] a
consequence Lee teaches away from using its intended replacement for
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quantitative quality determinations in the quantitative quality determination
scheme of Sano[.]" Reply Br. 3. Appellants explain:
Specifically, Lee does not disclose an adjunct to quantitatively
determining link quality, but using a subjective report that is an
explicit alternative to Sano' s quantitative determinations, in
which Lee's relied-upon report button and messages presented to
aid a user to render a subjective report oflink quality. Paragraph
8 of Lee discusses the need to make use of a human subject to
assess quality because such subjective assessments are the most
"accurate and useful"' and they further overcome the complexity
problems with quantitative assessments noted in Lee in
paragraph 7, with the point of Lee to refine the ability for such
subjective reports as replacements for quantitative quality
determinations as is done is [sic] Sano.
App. Br. 8-9.
The Examiner responds that only Lee's mechanism for a user to relay
a device's determination of poor link quality (e.g., to a service provider), not
Lee's mechanism of subjectively assessing link quality and formulating a
report thereon, is incorporated by the combination of Sano and Lee.
Ans. 5-6. In the Examiner's words:
Regardless of how poor link quality is determined (i.e. whether
it is determined based on a link quality threshold, as taught by
Sano, or not), adding a means to allow a user to select an
instruction to report poor link quality provides the advantage of
allowing quality problems to [be] reported to service providers
such that they may determine a cause of the problems and correct
the problem if possible. Therefore, it is believed that nothing in
Lee et al. or Sano teaches away from the addition of a reporting
mechanism to the system and method of Sano.
Ans. 6.
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We are not persuaded that Lee teaches away from quantitative
assessments of link quality (and therefore need not reach the above
question).
Even assuming ( arguendo) Appellants' account of Lee is correct,
merely citing advantages of one method over another is not enough for a
showing of teaching away. Medichem, S.A. v. Rolabo, S.L., 437 F.3d 1157,
1165 (Fed. Cir. 2006) ("[A] given course of action often has simultaneous
advantages and disadvantages, and this does not necessarily obviate
motivation to combine."). At best, Lee presents some of the benefits of
subjective assessments and accordingly encourages their use. See DePuy
Spine, Inc. v. Medtronic Sofamor Danek, Inc., 567 F.3d. 1314, 1326 (Fed.
Cir. 2009) ("A reference does not teach away ... if it merely expresses a
general preference[.]").
Accordingly, we sustain the rejection of claim 21.
Issue 3
Independent claims 34 and 50 are rejected as obvious over Sano,
Savoor, and Zhou. Claim 34 is representative (see 37 C.F.R.
§ 41.37(c)(l)(iv) (2014)) and recites the following at-issue subject matter:
"responsive to receiving the report from the receiver that the at least one
quality index related to the network link violates the threshold, sending, to
the receiver without further input from the receiver, video having a second
resolution less than the first resolution."
Appellants argue the Sano-Savoor-Zhou combination does not reach
the at-issue feature because Zhou, cited by the Examiner as teaching or
suggesting the feature, discloses a reduced transmission rate; not a reduced
resolution, as is claimed. App. Br. 9. Appellants particularly state:
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The allegation is clear reversible error that Zhou, paragraphs 25,
26, and 53 and figure 6 teaches responsive to determining link
quality, sending, to the receiver without further input from the
receiver, video having a second resolution less than the first
resolution. That is not what Zhou says. Paragraphs 25 and 26
relate to determining transmission rates; paragraph 53 teaches
that based on the transmission rate, the transmission data rate is
adjusted. This is not the same as changing resolution, because
the same resolution data appears to be sent regardless, albeit at
faster or slower rates.
Id. The Examiner responds:
Zhou et al. explicitly discloses that adjusting data rate can take
the form of changing a compression technique by "changing the
resolution of the video", such that reducing a data rate in
response to poor link quality may take the form of reducing the
resolution of data (See page 3 paragraph 49 of Zhou et al.).
Although not cited in the rejection, it is noted that paragraph 22
of Zhou et al. further explicitly teaches "reducing the resolution
of the video".
A~~ '7
~111:1. I.
We are not persuaded the Examiner erred. We agree with the
Examiner's findings that Zhou' s paragraph 49 teaches reducing of content
resolution in response to a reduction of transmission link quality. Zhou
particularly states:
[O]ne method of compression includes changing the resolution
of the video, another method includes skipping frames of the
video of the video data. Changing the resolution may be selected
if the estimate of the transmission link quality is considered
reliable. For example, the changing the resolution may be
selected if the variance of the transmission link quality is lower
(below) than a low variance threshold.
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Zhou iJ 49. The above teaching is unaddressed by Appellants and sufficient
to support a prima facie finding that Zhou suggests reducing resolution in
response to exceeding of a threshold variance in transmission link quality.
Accordingly, we sustain the Examiner's rejection of claims 34 and 50.
Conclusion
For the foregoing reasons, the rejection of claims 46-49 is not
sustained. The rejections of claims 21, 34, and 50 are sustained.
We further sustain the rejection of independent claim 22, for which
Appellants rely on the same arguments made for claim 21. See App. Br. 9.
The rejections of claims 22-24, 27-29, 31-33, 35-37, and 39-45 are not
separately argued and are therefore also sustained.
DECISION
The Examiner's rejection of claims 46-49 is reversed.
The Examiner's rejections of claims 21-24; 27-29; 31-37; 39-45;
and 50 are affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § l .136(a)(l )(iv).
AFFIRMED-IN-PART
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