Ex Parte Pedlow

Patent Trial and Appeal Board

Jun 22, 2015

12698951 (P.T.A.B. Jun. 22, 2015)

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.
12/698,951 02/02/2010 Leo Mark Pedlow JR. 7114-95566-US 4968
37123 7590 06/22/2015
FITCH EVEN TABIN & FLANNERY, LLP
120 SOUTH LASALLE STREET
SUITE 1600
CHICAGO, IL 60603-3406
EXAMINER
SHELEHEDA, JAMES R
ART UNIT PAPER NUMBER
2424
MAIL DATE DELIVERY MODE
06/22/2015 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte LEO MARK PEDLOW JR.
____________________

Appeal 2012-010841
Application 12/698,951
Technology Center 2400
____________________

Before MURRIEL E. CRAWFORD, HUBERT C. LORIN, and
JOSEPH A. FISCHETTI, Administrative Patent Judges.

FISCHETTI, Administrative Patent Judge.

DECISION ON APPEAL1

STATEMENT OF THE CASE2
Appellant seeks our review under 35 U.S.C. § 134 from the
Examiner’s final rejection of claims 1–10 and 18–20.
We affirm-in-part.

1 Our decision refers to the Appellant’s Amended Appeal Brief (“App. Br.,”
filed February 21, 2012) and the Examiner’s Answer (“Ans.,” mailed May 9,
2012) and Final Rejection (“Final Action,” mailed June 14, 2011).
2 The Appellants identify Sony Corporation and Sony Electronics Inc. as the
real parties in interest. (App. Br. 2).
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THE CLAIMED INVENTION
Appellant claims “a method and apparatus for correcting corrupted
digital video transport streams using a constant minimum bandwidth
allocation, randomized null packet payloads, and/or framing validity
technique.” (Spec. 1, ll. 8–11). Claim 1is illustrative of the claimed subject
matter on appeal:
1. A video-on-demand (VOD) system, comprising:
a headend coupled to a transmission channel, said
headend comprising:
a video server configured to transmit, over
the transmission channel, one or more VOD sessions to one or
more receivers, where each receiver comprises a VOD client
capable of subscribing to one or more VOD sessions over a
transport stream; and
a control server coupled to the video server,
the control server is configured to dynamically allocate and
terminate VOD sessions over the transport stream as VOD
clients are added and terminated, and to cause the video server
to transmit one or more dummy sessions over the transport
stream such that a bandwidth over the transport stream is
substantially constantly maintained above a predefined
minimum bandwidth of content.
App. Br. 30.

REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Payton
Milsted
Tani
US 5,790,935
US 6,263,313 B1
US 7,020,081 B1
Aug. 4, 1998
July 17, 2001
Mar. 28, 2006

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REJECTIONS
The following rejections are before us for review.
The Examiner rejected claims 1–9, 18, and 20 under 35 U.S.C.
§ 102(b) as anticipated by Payton.
The Examiner rejected claim 10 under 35 U.S.C. § 103(a) as
unpatentable over Payton and Tani.
The Examiner rejected claim 19 under 35 U.S.C. § 103(a) as
unpatentable over Payton and Milsted.

FINDINGS OF FACT
We find the following facts by a preponderance of the evidence.
1. The Specification describes dummy sessions, stating:
To maintain a minimum non-null content for each [Radio
Frequency (RF)] channel at all times, the VOD control server
415 creates dummy copies of purchased content and/or
activates “padding streams” (hereinafter referred to as “dummy
sessions”). The dummy sessions cause the video server(s) 420
to spool out content to [Packet Identifiers (PIDs)]. However,
no client is assigned or authorized to access the content.
(Spec. 17, ll. 5–10).
2. Payton discloses “broadcasting the recommended items to the
subscribers during off-peak hours (download access 14) and storing the
items locally . . .” to reduce bandwidth demands during peak hours for
on-demand communication of content. (Col. 4, ll. 35–44).
3. Payton discloses that if “bandwidth is available and the on-demand
queue 49 is empty,” items from the refresh queue are selected and
transmitted to “subscribers’ local servers 28.” (Col. 7, ll. 41–46).
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4. Payton discloses “[a] collaborative filtering system 42 synthesizes the
subscriber profiles 40[,] predicts which of the available items 36 each
subscriber may be interested in or may request, and produces a list 44 of
those recommended items for each subscriber.” (Col. 5, ll. 12–16).
5. Payton discloses its system will “prioritize the items 36 from the most to
the least frequently recommended and places identifiers for these items
in a refresh queue 47 for broadcast over the digital transport system 26”
during off-peak hours, to local user storage. (Col. 5, ll. 22–31).
6. Payton discloses that if the load on the on-demand queue is low, “the
processor broadcasts over the digital transport system 26 a request to
increase the menu selection available to the subscribers (step 106).”
(Col. 7, ll. 56–60).
7. Payton discloses that:
the transport capacity for the virtual on-demand system of the
present invention need only be sufficient to meet the
subscribers’ on-demand requests that cannot be serviced from
their respective local storage systems. As shown in FIG. 1b,
broadcasting the recommended items to the subscribers during
off-peak hours (download access 14) and storing the items
locally (1ocal access 16) reduces the on-demand access 18 of
transport system by 95% or more depending on the
effectiveness of the collaborative filtering system. As a result,
the peak transport capacity 20 required to provide virtual on-
demand service can be less than 5% of the bandwidth that
would be required to provide a true on-demand system.
Commercially available satellites or cable systems can provide
this bandwidth cost effectively.
(Col. 4, ll. 3044.)
8. Tani discloses that when insufficient bandwidth is available to distribute
programs A, B, and C, “the stream distribution server 2 distributes only
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program B to the terminal device 3 for example, and stops the
distribution of other programs A and C.” (Col. 10, ll. 37–39).
9. Tani discloses that “programs A and C may be distributed by debasing
the quality by filtering processing . . . .” (Col. 10, ll. 40–48).
10. Milsted discloses permitting a user to download unreleased content
before its release date, but not allowing access to the content until the
release date. (Col. 47, ll. 1–15).

ANALYSIS
Claims 1, 3–7, 18, and 20
Initially, we note that the Appellant argues independent claims 1 and
18 together as a group. (App. Br. 13). Correspondingly, we select
representative claim 1 to decide the appeal of these claims, with remaining
claim 18 standing or falling with claim 1. Appellant does not provide a
substantive argument as to the separate patentability of claims 3–7 and 20
that depend from claims 1 and 18. Thus, claims 3–7, 18, and 20 stand or fall
with claim 1. See 37 C.F.R. § 41.37(c)(1)(vii).
The claim term “dummy sessions” is not defined by the Specification.
(FF 1). We construe the term broadly as transmitted content, because the
Specification describes that a dummy session is used to “spool out content.”
(FF 1). The claim term “substantially constantly” is also not defined, but is
construed as an approximation of an amount, such as above a threshold
level. Epcon Gas Sys., Inc. v. Bauer Compressors, Inc., 279 F.3d 1022,
1031 (Fed. Cir. 2002).
Appellants argue “that Payton may transmit content, but does not
show that it is necessarily present that Payton substantially constantly
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maintain the bandwidth above the minimum bandwidth.” (App. Br. 15, see
also App. Br. 13–18, Reply Br. 1–4).
We are not persuaded by Appellant’s argument. Payton discloses
using “off-peak” hours to automatically transmit content from its servers to
local servers close to users, so that content may be served to users from
nearby local servers without impacting the network and server load centrally
during peak times. (FF 2, 3). Content transmitted during off-peak hours is
driven by a list of recommended titles, which is prioritized and transmitted.
(FF 4, 5). Payton further discloses if an on-demand queue is low, selections
available to customers are increased. (FF 6).
The effect of these acts disclosed in Payton is to keep network
bandwidth being used when its use is low, by increasing the list of items
available to customers, and then automatically transmitting items from that
list of items across the network to local servers. The claim does not specify
settings for the “minimum bandwidth.” We construe “substantially
constantly maintained” as keeping the level of content transmission above an
approximated level, which means the bandwidth may sometimes fall below a
threshold and still meet the claim language. Payton sets a minimum
bandwidth low, and takes steps to keep content transmission bandwidth
above that threshold. (FF 2–7). Although there may be instances in Payton
where the bandwidth may fall below the threshold before the acts it takes
have an effect, this is acceptable within the meaning of “substantially
constantly” being an approximation.
Therefore, we sustain the Examiner’s rejection of claim 1, and of
claims 3–7, 18, and 20 stand or fall with claim 1.

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Claim 2
Dependent claim 2 recites “wherein the control server is further
configured to transmit one or more dummy sessions over the transport
stream to maintain the minimum bandwidth of content over the transport
stream to ensure that each receiver can synchronize to a subscribed VOD
session.” App. Br. 30.
Appellant argues that in Payton there is “no discussion of
synchronization, or maintaining a bandwidth to ensure synchronization.”
(App. Br. 21–22).
The term “synchronization” is not defined in the Specification, which
describes two types of synchronization problems and three ways that may be
used separately or in combination to address MPEG synchronization
problems. (Spec. 10, l. 24 to 19, l. 19). Limitations appearing in the
specification but not recited in the claim are not read into the claim. E-Pass
Techs., Inc. v. 3Com Corp., 343 F.3d 1364, 1369 (Fed. Cir. 2003).
The Examiner maintains Payton discloses ensuring that each receiver
can synchronize to a subscribed VOD session in that “each receiver can
synchronize to a subscribed VOD session (ensuring that every subscriber
can receive, and thus synchronize, with their MPGE [sic] movie by ensuring
that recommended ones are transmitted in advance.” (Ans. 5 (citing Payton,
col.3, ll.3442, col. 4, ll. 5964); see also id. at 17–18).
We find the Examiner’s interpretation to be reasonable because
receiving for viewing purposes would require synchronizing to a subscribed
VOD session.
Therefore, we sustain the Examiner’s rejection of claim 2.
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Claims 8 and 9
Independent claim 8 recites:
A video-on-demand (VOD) server, comprising:
a server configured to transmit requests from one or more VOD
clients for one or more VOD sessions, cause transmission of
one or more VOD sessions over a transport stream to the one or
more VOD clients, determine whether the number of VOD
sessions transmitted over the transport stream is below a
minimum threshold, and cause transmission of one or more
padding sessions over the transport stream if the number of
VOD sessions transmitted over the transport stream is below
the minimum threshold to maintain the number of VOD
sessions at or above the minimum threshold.
App. Br. 31.
Appellant argues Payton does not expressly or inherently “describe
making any determination regarding the number of VOD sessions being
transmitted,” or “transmitting padding sessions in response to determining
that the number of VOD sessions being below a minimum threshold”
because Payton only considers “bandwidth” and not a number of sessions.
(See App. Br. 18–21, Reply Br. 4–6).
We disagree with Appellant, because Payton discloses that it will send
items from a refresh queue if the “on-demand queue is empty.” (FF 3). If
the queue is empty, the number of items in the queue is less than one, thus
meeting the claim language.
Therefore, we sustain the Examiner’s rejection of claims 8 and 9.
Claim 10
Dependent claim 10 recites “wherein when the server is configured to
receive a request for a new VOD session from a VOD client, the control
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server is configured to terminate one or more of the one or more padding
sessions, and cause transmission of the new VOD session.” App. Br. 32.
Appellant argues “Tani only describes pausing a program” but does
not teach or suggest “terminating a transmission of a program.” (App. Br.
26–27; see also Reply Br. 6–7). We are not persuaded by Appellant’s
argument because Tani discloses stopping transmission of programs A and
C, and instead transmitting lower-quality content instead. (See FF 8, 9).
The original transmission of programs A and C, therefore, is terminated.
Appellant also argues that by incorporating Tani into the system of
Payton, “teaches away” and would “change the principle of operation” of
Payton. (App. Br. 27–28; see also Reply Br. 7).
We do not agree that Payton teaches away. “A reference may be said
to teach away when a person of ordinary skill, upon [examining] the
reference, would be discouraged from following the path set out in the
reference, or would be led in a direction divergent from the path that was
taken by the applicant.” Para-Ordnance Mfg., Inc. v. SGS Importers Int’l,
Inc., 73 F.3d 1085, 1090 (Fed. Cir. 1995) (alteration in original) (quoting In
re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994)). However, “[t]he prior art’s
mere disclosure of more than one alternative does not constitute a teaching
away from any of the alternatives when the disclosure does not criticize,
discredit, or otherwise discourage the solution claimed . . . .” In re Fulton,
391 F.3d 1195, 1201 (Fed. Cir. 2004). Payton does not discourage
additional acts to maximize content transmission, such as those disclosed in
Tani.
We also do not agree that adding the additional function of
terminating low-priority content transmissions, as disclosed in Tani, would
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change the principle of operation of Payton. Appellant speculates that
“Payton would not terminate the transmission of a requested item,” or of
“recommended items,” because the system “intends for the subscribers to
playback the content.” (See App. Br. 2728). However, substituting a
lower-quality stream does not frustrate this purpose, because a lower-quality
version of the content is still available to the user.
Therefore, we sustain the Examiner’s rejection of claim 10.
Claim 19
Dependent claim 19 recites:
wherein the control server is further configured to determine
whether the bandwidth of content over the transport stream is
below a predetermined threshold, and cause the video server to
transmit the one or more dummy sessions to ensure that the
bandwidth of content is substantially continuously maintain at
or above the predetermined threshold, wherein the dummy
sessions comprise non-null data and cannot be accessed by the
one or more receivers.
App. Br. 32.
Appellant argues that Milsted, which the Examiner relies on as
disclosing content that “cannot be accessed” by the receiver “instead
describes content that can be accessed,” because the access is merely
delayed. (App. Br. 23–24, see also Reply Br. 6).
The Examiner reasons that the claim recites that a “session” cannot be
accessed, not the content in the session, and Milsted transmits content for
storage before it is available for release, thus delaying access until a later
release date. (Ans. 10–11, 18). If the claim meant that a session cannot be
accessed, that would mean that the receiver cannot receive the content. This
construction is not reasonable.
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Instead, we construe claim 19 as meaning that the content cannot be
accessed. Milsted delays the ability to access content (FF 10), but the
content nonetheless may be accessed, just at a later date. This does not meet
the claim language. Therefore, we do not sustain the rejection of claim 19.

CONCLUSIONS OF LAW
The Examiner did not err in rejecting claims 1–9, 18, and 20 under
35 U.S.C. § 102(b).
The Examiner did not err in rejecting claim 10 under 35 U.S.C.
§ 103(a).
The Examiner erred in rejecting claim 19 under 35 U.S.C. § 103(a).

DECISION
For the above reasons, the Examiner’s rejection of claims 1–10, 18,
and 20 are AFFIRMED.
The Examiner’s rejection of claim 19 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.
§ 1.136(a)(1)(iv).

AFFIRMED-IN-PART
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