Ex Parte Pedlow

Board of Patent Appeals and Interferences

May 29, 2009

09881609 (B.P.A.I. May. 29, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte LEO MARK PEDLOW, JR.
____________

Appeal 2009-007628
Application 09/881,609
Technology Center 2400
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Decided:1 May 29, 2009
____________

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

FISCHETTI, Administrative Patent Judge.

DECISION ON APPEAL

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).
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STATEMENT OF THE CASE
Appellant seeks our review under 35 U.S.C. § 134 of the Examiner’s
final rejection of claims 1-12 and 20-22. Claims 13-19 and 23-25 are
cancelled. We have jurisdiction under 35 U.S.C. § 6(b) (2002).

SUMMARY OF DECISION
We AFFIRM-IN-PART.

THE INVENTION
Appellant claims an apparatus for television systems, and specifically,
to an apparatus for correcting corrupted digital video transport streams using
a constant minimum bandwidth allocation. (Specification 1:8-10.)
Claim 1, reproduced below, is representative of the subject matter on
appeal.
Claim 1: A video-on-demand (VOD)
system, comprising:
a transmission channel;
a plurality of receivers coupled to the
transmission channel, a VOD client at each
receiver capable of subscribing to one or more
VOD sessions over a transport stream; and
a headend coupled to the transmission
channel, said headend including a video server
than can transmit one or more VOD sessions to
one or more receivers, and a control server coupled
to the video server, the control server 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 to maintain the predetermined
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minimum bandwidth of content over the transport
stream.

THE REJECTION
The Examiner relies upon the following as evidence of
unpatentability:
Payton US 5,790,935 Aug. 4, 1998

The following rejections are before us for review.
The Examiner rejected claims 1-12 and 20-22 under 35 U.S.C. §
102(b) as anticipated by Payton.
ISSUE
Has Appellant shown that the Examiner erred in rejecting claims 1-12
and 20-22 on appeal as being unpatentable under 35 U.S.C. § 102(b) on the
grounds that a person with ordinary skill in the art would understand Payton
by adding data to an otherwise unoccupied bandwidth to insure that as much
data is sent during transmission times meets the claim requirement to
maintain the predetermined minimum bandwidth of content over the
transport stream.

FINDINGS OF FACT
We find the following facts by a preponderance of the evidence:
1. The Examiner found that
both Payton and the current invention add more
data to be sent out. While the current application
adds data when usage is low, Payton's adding of
data when ever possible is doing the same thing.
That is, adding data to make sure that as much (a
minimum level) data is sent.
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(Answer 13.)
2. The Specification describes the problem as
[w]hen data is not evenly distributed, the
concentration of null packets is locally increased
due to the burst nature of the multiplexer
algorithm. Consequently, the type of multiplexer
algorithm used may exasperate the synchronization
problem, making the number of repeated null
packets appear to be greater than is actual and
therefore reduce the threshold to the onset of the
problem.
(Specification 14:10-14.)
3. The Specification describes one way to resolve the MPEG frame
synchronization problem as:
the headend maintains a constant minimum
bandwidth allocation to reduce the number of null
packets in the transport stream. In constant
minimum bandwidth allocation, the headend
system controlling assignment of VOD clients to
RF carriers and PIDs insures that each RF channel
and its associated transport stream has a minimum
non-null content at all times.
(Specification 15:17-22.)
4. The Specification describes using dummy sessions of packets such
that
[t]he actual minimum content varies from one
system to another and depends upon factors such
as video bit rate, modulation constellation,
multiplexer homogeneity, downstream bit error
rate (BER), etc. To maintain a minimum non-null
content for each 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
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sessions"). The dummy sessions cause the video
server(s) 420 to spool out content to PIDs.
However, no client is assigned or authorized to
access the content. This would create non-null
content on the transport stream that is above the
threshold for minimum content. When client
demand for channel bandwidth exceeds the
minimum bandwidth (e.g., a threshold), the session
streams can be terminated and the bandwidth
assigned to revenue producing session streams.
(Specification 17:3-13.)
5. 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 (local
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.
(Payton, col. 4, ll. 30-44.)
6. Payton discloses dummy packets in that programming not
otherwise requested but probable to be watched is sent to a viewer in that:
[w]hen the recommended items reach the top of
the refresh queue 47, they are retrieved from
repository 34 and are broadcast to the local users,
preferably during off-peak viewing hours so that
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all of the system's bandwidth is available to service
on-demand requests during on-peak hours. In
response to a subscriber's on-demand request that
cannot be served by that subscriber's local server
28, the scheduling processor 46 merges requests
for that item and places it in an on-demand 49
queue. Items broadcast in response to subscriber
requests take priority over the broadcast of the
recommended items. As a result, the subscribers'
on-demand requests are served either from their
local server or from the central distribution server
24 virtually on-demand. The subscribers
encounter only small delays so that the system
appears transparent. If the system becomes
loaded, the scheduling processor 46 limits the
number of items, in addition to those stored on the
subscribers' local servers, that are available to the
subscribers. This has the effect of reducing the
number of on-demand requests made to the central
distribution server.
(Payton, col. 5, ll. 25-45.)
7. Payton discloses
the scheduling processor 46 monitors available
bandwidth over the digital transport system 26
(step 86) and determines whether sufficient
bandwidth is available for transmission of another
item. If bandwidth is available and the on-demand
queue 49 is empty (step 88), the processor 46
retrieves the next item from the refresh queue 47
(step 90), removes the item from the queue 47
(step 92), and updates the subscriber profiles to
reflect the storage change that will occur when the
item is received by the subscribers' local servers 28
(step 94).
(Payton, col. 7, ll. 37-47.)
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8. Payton discloses that “…the digital items are preferably encrypted
so that downloaded items cannot be accessed without first being paid for.”
(Payton, col. 4, ll. 64-66.)

PRINCIPLES OF LAW
“A claim is anticipated only if each and every element as set forth in
the claim is found, either expressly or inherently described, in a single prior
art reference.” Verdegaal Bros. v. Union Oil Co. of California, 814 F.2d
628, 631 (Fed. Cir.), cert. denied, 484 U.S. 827 (1987).

ANALYSIS
The rejections are affirmed as to claims 1, 3, 4, 5, 6, 7, 8, 10, 11, 12,
20, 21, and 22 and reversed as to claims 2 and 9. The Appellant does not
provide a substantive argument as to the separate patentability of claims 5, 7,
8, 10, 11, 12, 20, 21 and 22. Therefore, regarding the claims whose rejection
is affirmed, we address only claim 1. Claims 5, 7, 8, 10, 11, 12, 20, 21, and
22 fall with claim 1. See, 37 C.F.R. § 41.37(c)(1)(vii) (2008).
Appellant argues that the Examiner’s equating the recommended
items in Payton as “dummy sessions” is error because
the "recommended items" described in Payton are
not dummy sessions in at least that recommended
items are predicted to be, and sent with the
intention that they will be locally stored and
viewed by customers in a virtual video-on-demand
(VOD) system. Additionally, the recommended
items in Payton are sent to reduce the amount of
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bandwidth used by the true VOD system in
Payton, and thus cannot be sent "to maintain a
predetermined minimum bandwidth" in the video-
on-demand (VOD) system recited in claim 1.
(Appeal Br. 10-11.)
We disagree with Appellant. The Examiner maintains, and we agree,
that Payton discloses maintaining a predetermined minimum bandwidth
because Payton, like Appellant’s device, adds data when usage is low to
make sure that as much (a minimum level) data is sent. (FF 1.) Appellant’s
claim 1 is drawn to an article, and thus we are constrained to look to the
structure of the device and how the claim structurally defines over the prior
art. As such, taking the frame in time where the recommended video items
are being sent in Payton, we find that the bandwidth is being filled with
recommended content to occupy otherwise vacant or null spaces defined by
unused bandwidth. To delve into the type of content being transmitted as a
way to determine patentability as Appellant suggests would be error in that
such an analysis would attempt to distinguish the prior art by content. This
is especially true since the dummy sessions are described as having the sole
purpose of occupying bandwidth without respect to content (FF 4).
Patentable weight need not be given to descriptive material absent a new and
unobvious functional relationship between the descriptive material and the
substrate. See In re Lowry, 32 F.3d 1579, 1582-83 (Fed. Cir. 1994). Thus,
we agree with the Examiner that Payton discloses dummy sessions which
maintain a predetermined minimum bandwidth because such data adds to an
otherwise null bandwidth space.
Appellant further argues that in Payton, “…the recommended item is
sent to reduce bandwidth usage during peak hours, with the intention and a
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high probability that the subscriber will in fact view the recommended item,
and not to maintain a minimum bandwidth.” (Appeal Br. 12.) We disagree
with Appellant because it is not assured in Payton that the recommended
item will be viewed or even considered by the recipient (FF 5, 6, 7). Thus,
such an unviewed recommended item would have had the sole purpose of
occupying otherwise unused bandwidth during transmission, similar to
Appellant’s dummy sessions.
Appellant argues that “…Payton teaches away from a server, such as
the central distribution system, causing a dummy session to be transmitted to
maintain a minimum bandwidth.” (Appeal Br. 16.) We disagree with
Appellant. A reference may be said to teach away when a person of
ordinary skill, upon reading 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. The degree of
teaching away will of course depend on the particular facts; in general, a
reference will teach away if it suggests that the line of development flowing
from the reference's disclosure is unlikely to be productive of the result
sought by the applicant. In re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994)
(citing United States v. Adams, 383 U.S. 39, 52 (1966)). The scheduling
processor 46 in Payton monitors available bandwidth over the digital
transport system 26 and determines whether sufficient bandwidth is
available for transmission of another item (FF 7). If bandwidth is available,
transmission of a recommended item occurs (FF 7). A person with ordinary
skill in the art would not be discouraged by this disclosure because the
processor 46 is functioning just as Appellant’s server in that is adding
content to otherwise vacant bandwidth (FF 4).
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Claim 2:
Claim 2 recites: “wherein the control server to prevent each receiver
from decoding the dummy sessions.” (Emphasis added.) Appellant argues
that “… Payton intends the requested items and the recommended items be
accessed and decoded, and thus, Payton does not expressly or inherently
teach or suggest, and in fact teaches away from, preventing each receiver
from decoding content, particularly the recommended items.” (Appeal Br.
18.) We agree with Appellant. In Payton, the goal is to provide
recommended content (FF 6) which is usable at the discretion of the
receiver. Thus, a controller as claimed, which prevents each receiver from
decoding the dummy sessions, cannot be anticipated by one which does not
prevent decoding.
Claim 3:
Claim 3 recites: “wherein the control server, if necessary, to transmit
one or more dummy sessions over the transport stream to maintain a
minimum bandwidth of content over the transport stream to ensure that each
receiver can synchronize to a subscribed VOD session.” (Emphasis added.)
The Examiner maintains Payton discloses ensuring that each receiver can
synchronize to a subscribed VOD session in that “…every subscriber can
receive, and thus synchronize, with their MPGE movie by ensuring that
recommended ones are transmitted in advance…” (Answer 4-5).
We find the Examiner’s interpretation to be reasonable because
receiving for viewing purposes would require synchronizing to a subscribed
VOD session.
Claim 4:
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Claim 4 recites: “wherein the control server to determine whether the
bandwidth of content over the transport stream is below a predetermined
threshold, and to cause the video server to transmit one or more dummy
sessions, as necessary, to maintain the bandwidth of content at or above the
predetermined threshold.” (Emphasis added.) Appellant maintains that the
limitation of claim 4 is not disclosed in Payton because
[d]etermining when it is possible to send another
item during refresh broadcasts and sending the
next item on the list when there is bandwidth
available, cannot be interpreted to mean
determining whether the bandwidth of content over
the transport stream is below a predetermined
threshold, and transmitting a dummy session to
maintain the bandwidth above the threshold. This
is because, in Payton, when the on-demand queue
and the refresh queue are empty, no content will be
sent.
(Appeal Br. 20.)
We disagree with Appellant. As discussed supra, the claims at issue
are article claims reciting bandwidth structure which is met by Payton when
the scheduling processor broadcasts during off-peak viewing hours so that
all of the system's bandwidth is available to service on-demand requests
during on-peak hours. In this mode, the bandwidth of content is at the
predetermined threshold namely, at the capacity level of on-peak hours.
Claim 6:
Claim 6 recites: “wherein said headend includes a transmitter having
an MPEG frame synchronizer, encoder, and modulator.” (Emphasis added.)
Appellant argues that “… the content delivered to the system in Payton is
delivered in a compressed and encoded format, and thus, there is no need to
encode the content.” (Appeal Br. 22.) We disagree with Appellant. First,
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Payton explicitly discloses that the transmitted data is encrypted so that
downloaded items cannot be accessed without first being paid for (FF 8.).
Nowhere does Payton disclose or intimate that the content is encoded when
the scheduling processor receives it as Appellant’s argument suggests. The
Examiner maintains that an encoder is inherent to encode the MPEG video.
We agree. The disclosure in Payton of encrypted data makes it clear that the
missing description of an encoder is necessarily present and that it would be
so recognized by persons of ordinary skill. See In re Robertson, 169 F.3d
743, 745 (Fed. Cir. 1999).
Claim 9:
Claims 9 recites: “wherein when the control server receives a request
for a new VOD session from a VOD client, the control server terminates one
or more of the one or more dummy sessions, and causes transmission of the
new VOD session over the transport stream.” (Emphasis added.)
Appellant argues that “Payton describes how the system in Payton
prioritizes between retrieving content from the requested on-demand queue
and recommended items in the refresh queue, and does not provide for the
termination of the transmission.” (Appeal Br. 23.) We agree with
Appellant. The refresh feature of the Payton system does not cause the
termination of transmission, and thus we will not sustain the rejection of
claim 9.

CONCLUSIONS OF LAW
We conclude the Appellant has not shown that the Examiner erred in
rejecting claims 1, 3, 4, 5, 6, 7, 8, 10, 11, 12, 20, 21, and 22 under 35 U.S.C.
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§ 102(b) as anticipated by Payton, and has shown that the Examiner erred in
rejecting claims 2 and 9 under 35 U.S.C. § 102(b) as anticipated by Payton.

DECISION
The decision of the Examiner to reject claims 1, 3, 4, 5, 6, 7, 8, 10, 11,
12, 20, 21, and 22 is AFFIRMED.
The decision of the Examiner to reject claims 2 and 9 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) (2007).

AFFIRMED-IN-PART

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