Ex Parte Poulin

Patent Trial and Appeal Board

May 24, 2017

13329200 (P.T.A.B. May. 24, 2017)

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.
13/329,200 12/16/2011 Eric Poulin GEN-194 5133
105956 7590
Fogarty, L.L.C
P.O. Box 703695
Dallas, TX 75370-3695
05/26/2017 EXAMINER
JAGANNATHAN, MELANIE
ART UNIT PAPER NUMBER
2468
NOTIFICATION DATE DELIVERY MODE
05/26/2017 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):
jody.bishop@genband.com
docketing@fogartyip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ERIC POULIN
Appeal 2015-005913
Application 13/329,200
Technology Center 2400
Before JEREMY J. CURCURI, AMBER L. HAGY, and
MICHAEL M. BARRY, Administrative Patent Judges.
CURCURI, Administrative Patent Judge.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1—27. Final Act. 1. We have jurisdiction under
35 U.S.C. § 6(b).
Claims 25 and 27 are rejected under 35 U.S.C. § 112, first paragraph,
as failing to comply with the written description requirement. Ans. 2—3.
Claim 25 is rejected under 35 U.S.C. § 102(b) as anticipated by
Hellwig (US 2010/0161325 Al; June 24, 2010). Ans. 3-6.
Claims 1—3 and 8—12 are rejected under 35 U.S.C. § 103(a) as obvious
over Hellwig and Amster (US 6,961,315 Bl; Nov. 1, 2005). Ans. 7—12.1
1 On page 7 of the Examiner’s Answer, the Examiner states that claims 1—3
and 8—12 are rejected under 35 U.S.C. § 102(b); however, the Examiner’s
Appeal 2015-005913
Application 13/329,200
Claims 13—15 and 20-24 are rejected under 35 U.S.C. § 103(a) as
obvious over Hellwig and Khanduri (US 2009/0238085 Al; Sept. 24, 2009).
Ans. 12—17.
Claim 26 is rejected under 35 U.S.C. § 103(a) as obvious over
Hellwig, Amster, and Khanduri. Ans. 17—18.
Claims 4—6 are rejected under 35 U.S.C. § 103(a) as obvious over
Hellwig, Amster, and Everson (US 7,768,998 Bl; Aug. 3, 2010). Ans. 18—
19.
Claims 16—18 are rejected under 35 U.S.C. § 103(a) as obvious over
Hellwig, Khanduri, and Everson. Ans. 19—21.
Claim 7 is rejected under 35 U.S.C. § 103(a) as obvious over Hellwig,
Amster, and Kampmann (US 2010/0070286 Al; Mar. 18, 2010). Ans. 21—
22.
Claim 19 are rejected under 35 U.S.C. § 103(a) as obvious over
Hellwig, Khanduri, and Kampmann. Ans. 22.
We affirm-in-part.
STATEMENT OF THE CASE
Appellant’s invention relates to “a method for selecting a codec pair
based on network conditions.” Abstract. Claims 1, 13, and 25 are
illustrative and reproduced below:
1. A method for selecting a codec pair based on
network conditions, the method comprising:
findings and reasons (Ans. 7—12) are consistent with claims 1—3 and 8—12
being rejected under 35 U.S.C. § 103(a). Thus, we treat claims 1—3 and 8—
12 as being rejected under 35 U.S.C. § 103(a).
2
Appeal 2015-005913
Application 13/329,200
at a network node including a first communication
interface and a second communication interface:
obtaining a first performance metric indicating a
condition of a first network connected to the network node via
the first communication interface, the first network including a
first endpoint;
obtaining a second performance metric indicating a
condition of a second network connected to the network node
via the second communication interface, the second network
including a second endpoint;
modifying a first impairment value for the first network
connection according to the first performance metric;
modifying a second impairment value for the second
network connection according to the second performance
metric;
generating or updating a codec selection model based on
the first impairment value modified by the obtained first
performance metric and the second impairment value modified
by the obtained second performance metric;
selecting a first codec from a plurality of codecs
compatible with the first endpoint based on the codec selection
model;
selecting a second codec from a plurality of codecs
compatible with the second endpoint based on the codec
selection model; and
utilizing the first selected codec and the second selected
codec to communicate a portion of a communication session
between the first endpoint and the second endpoint.
13. A system for selecting a codec pair based on
network conditions, the system comprising:
a first communication interface configured to interface
with a first network including a first endpoint;
a second communication interface configured to interface
with a second network including a second endpoint;
a network performance module configured to obtain a
first performance metric indicating a condition of the first
network and a second performance metric indicating a
condition of the second network;
3
Appeal 2015-005913
Application 13/329,200
a codec selection module configured to generate a codec
selection model based on the obtained first performance metric
and the obtained second performance metric, select a first codec
from a plurality of codecs compatible with the first endpoint
based on the codec selection model, and select a second codec
from a plurality of codecs compatible with the second endpoint
based on the codec selection model, and update the codec
selection model during a call in response to a change in the first
performance metric or the second performance metric during
the call; and
a transcoder configured to utilize the first selected codec
and the second selected codec to communicate a portion of a
communication session between the first endpoint and the
second endpoint.
25. A non-transitory computer readable medium
comprising computer executable instructions that when
executed by a processor of a computer control the computer to
perform steps comprising:
at a network node including a first communication
interface and a second communication interface:
obtaining a first performance metric indicating a
condition of a first network connected to the network node via
the first communication interface, the first network including a
first endpoint;
obtaining a second performance metric indicating a
condition of a second network connected to the network node
via the second communication interface, the second network
including a second endpoint, wherein the first performance
factor and the second performance factor are obtained by a
media gateway in a media plane of the first network connection
and the second network connection respectively;
generating or updating a codec selection model based on
the obtained first performance metric and the obtained second
performance metric;
selecting a first codec from a plurality of codecs
compatible with the first endpoint based on the codec selection
model;
4
Appeal 2015-005913
Application 13/329,200
selecting a second codec from a plurality of codecs
compatible with the second endpoint based on the codec
selection model; and
utilizing the first selected codec and the second selected
codec to communicate a portion of a communication session
between the first endpoint and the second endpoint.
ANALYSIS
The Written Description Rejection of Claims 25 and 27
Claims 25 and 27 each recite “wherein the first performance factor
and the second performance factor are obtained by a media gateway in a
media plane of the first network connection and the second network
connection respectively.” App. Br. 39-40 (Claims App’x) (emphasis
added).
The Examiner finds claims 25 and 27 fail to comply with the written
description requirement. Ans. 2—3; see also Ans. 23—26. In particular, the
Examiner finds:
The [Specification does not disclose the first performance
factor and the second performance factor are obtained by a
media gateway in a media plane of the first network connection
and the second network connection respectively. The
disclosure teaches a media gateway performing transcoding for
the call but does not recite the performance factors being
obtained by a media gateway in a media plane for the
connections as claimed.
Ans. 2—3 (emphasis added).
Appellant cites to the Specification at page 7, lines 3—22, and also
presents the following principal argument:
As one of ordinary skill in the art will appreciate, in a
distributed model, where the media plane (handled by the media
gateway) and the signaling plane (handled by the media
gateway controller) are separated, the only place where the
5
Appeal 2015-005913
Application 13/329,200
media gateway has access to the metrics listed (jitter, packet
delay, packet loss) is from the media plane. In network
components such as a session bo[]rder controller^] the
signaling plane and the media plane are within the same box.
Yet, all these metrics must be obtained within the media plane
since this is where the things they measure are occurring.
Hence, all the metrics listed ought to be measured in the media
plane because they describe conditions occurring within the
media plane. Further, the above [Specification text also
discusses RTCP [(real-time transport control protocol)] and
RTCP-XR [(RTCP-extended reports)] which are well known
protocols that are only used to describe transports statistics for
media connections (i.e. it gives statistics on the Real-time
Transport Protocol, which is the de facto protocol to carry
media). Hence, it is clear that at least this portion of the
[Specification is referring to media plane metrics.
App. Br. 11-12; see also Reply Br. 3—5.
We agree with and adopt as our own the Examiner’s finding that
claims 25 and 27 fail to comply with the written description requirement.
Ans. 2—3.
“[T]he test for sufficiency [of the written description] is whether the
disclosure of the application relied upon reasonably conveys to those skilled
in the art that the inventor had possession of the claimed subject matter as of
the filing date.” AriadPharms., Inc. v. EliLilly & Co., 598 F.3d 1336, 1351
(Fed. Cir. 2010) (enbanc).
Appellant’s Specification discloses:
Network performance module 204 may be configured to obtain
one or more performance metrics. For example, network
performance module 204 may be configured to obtain one or
more of a measure of packet loss, a measure of end-to-end
packet delay, and a measure of jitter. Network performance
module 204 may be operative to communicate with
communication interface 200 and/or communication interface
202 for obtaining one or more performance metrics. For
6
Appeal 2015-005913
Application 13/329,200
example, network performance module 204 and/or one or both
of communication interface(s) 200 and 202 may include a
network probe for obtaining one or more performance metrics.
In some embodiments, network performance module 204 may
have access to one or more performance metrics from a probe
external to transcoder node 116. For example, network
performance module 204 may have access to one or more
performance metrics associated with access network 106 and/or
access network 108 from a probe external to transcoder node
116 via communication interface 200 and/or communication
interface 202. In some embodiments, network performance
module 204 may access one or more performance metrics using
a standardized protocol, such as real-time transport control
protocol (RTCP) or RTCP-extended reports (RTCP-XR).
RTCP-XR is an extended version of RTCP which may provide
access to more extensive information regarding network
conditions.
Spec. 7:3—22.
Appellant’s cited portion of the Specification reasonably describes to
a skilled artisan that the first performance factor and the second performance
factor are obtained by a media gateway of the first network connection and
the second network connection respectively. However, Appellant’s cited
portion of the Specification does not reasonably describe to a skilled artisan
that these performance factors are obtained in a media plane.
The cited portion of the Specification describes accessing
performance metrics using “real-time transport control protocol (RTCP) or
RTCP-extended reports (RTCP-XR).” Spec. 7:19—20 (emphasis added).
We find the examples disclose actions taken in a control plane, as opposed
to a media plane. We appreciate that those skilled in the art would have
understood that the cited portion of the Specification is exemplary and non­
limiting. Nonetheless, we see no suggestion of obtaining performance
factors in the media plane. Regarding Appellant’s arguments that various
7
Appeal 2015-005913
Application 13/329,200
metrics are accessed from the media plane, these arguments do not show any
error in the Examiner’s finding because although jitter, packet delay, and
packet loss occur in the media plane, we see no suggestion that the
performance factors (measures of jitter, packet delay, and packet loss) are
obtained in the media plane.
We, therefore, agree with the Examiner and find that the Specification
fails to reasonably describe the recited limitation “wherein the first
performance factor and the second performance factor are obtained by a
media gateway in a media plane of the first network connection and the
second network connection respectively” so as to convey to those skilled in
the art that the inventor had possession thereof.
We, therefore, sustain the Examiner’s rejection under 35 U.S.C.
§112, first paragraph, of claims 25 and 27.
The Anticipation Rejection of Claim 25 by Hell wig
The Examiner finds Hellwig discloses all limitations of claim 25.
Ans. 3—6.
Appellant presents the following principal arguments:
i. The Examiner did not examine claim 25’s recited limitation of
“the first performance factor and the second performance factor are obtained
by a media gateway in a media plane of the first network connection and the
second network connection respectively.” App. Br. 13; see also Reply Br.
6-7.
Hellwig only discloses impairment values that are available
from the MSC [Mobile Switching Center], which operates in
the signaling plane, not in the media plane. Appellant asserts
that the media plane accesses the payload/media, whereas the
8
Appeal 2015-005913
Application 13/329,200
applied reference appears to only use/access signaling data in
the nature of predetermined impairment values previously
stored.
App. Br. 15—16; see also Reply Br. 8—12.
ii.
[A]t best, Hellwig can be said to teach receiving expected
impairment values of combined codecs along a communication
path. Hellwig is silent concerning a media gateway actively
obtaining any sort of metric (i.e. measurement) that indicates a
condition of a network. Conversely, in Hellwig the expected
impairment values, based on the codecs that can be used, are
transmitted to MSCs.
App. Br. 14—15; see also Reply Br. 7—8.
iii.
Hellwig does not take into account the performance factors that
can be obtained by the MGW [Mobile Gateway] during the call.
Rather, Hellwig looks up a predetermined impairment value
and selects a static codec model to be used for the entire call.
Accordingly, Hellwig fails to disclose “generating or updating a
codec selection model based on the first performance metric
and the obtained second performance metric,” as recited in
claim 25.
App. Br. 16; see also Reply Br. 12.
We see an error in the contested findings of the Examiner.
Regarding argument (i), the Examiner erred in finding Hellwig
discloses the recited “the first performance factor and the second
performance factor are obtained by a media gateway in a media plane of the
first network connection and the second network connection respectively.”
In the rejection, the Examiner does not address this limitation. See Ans. 3—6.
In the Answer’s Response to Argument section, however, the Examiner
finds “Hellwig would inherently be communicating through its media plane
9
Appeal 2015-005913
Application 13/329,200
as [it] has been argued [that] it is typically known by one of ordinary skill in
the art.” Ans. 27; see also Ans. 29—32. Hellwig discloses Mobile Switching
Centers (MSCs) updating impairment values. See Hellwig, Abstract. That
said, we agree with Appellant’s argument (i) that Hellwig’s MSCs operate in
the signaling plane, and not in the media plane.
Regarding argument (ii), the Examiner did not err in finding Hellwig
discloses claim 25 ’s recited “obtaining a first performance metric indicating
a condition of a first network” and “obtaining a second performance metric
indicating a condition of a second network.” We agree with and adopt as
our own the Examiner’s finding that Hellwig’s impairment values disclose
the recited performance metrics. See Ans. 4—5; see also Ans. 27—28.
Hellwig’s Abstract discloses:
A Total Accumulated Impairment (TAI) element is forwarded
between the MSCs and step by step updated by these MSCs that
includes individual partially accumulated impairment values
corresponding to each of the supported codec candidates. Each
individual indicator value provides information representative
of the expected accumulated impairment along a candidate
connection path leading up to, and including, the corresponding
codec.
Contrary to Appellant’s argument (ii), Hellwig’s impairment value indicates
the condition of the network because Hellwig’s impairment value provides
information representative of the expected impairment. See Hellwig,
Abstract. Put another way, Hellwig’s impairment value indicates the
expected impairment when the associated codec is used on the network,
which is a condition of the network. The broad claim language does not
require the performance metric to be obtained during a call or to be
otherwise actively obtained as argued; we find expected impairment
reasonably describes a condition of the network.
10
Appeal 2015-005913
Application 13/329,200
Regarding argument (iii), the Examiner did not err in finding Hell wig
discloses claim 25 ’s recited “generating or updating a codec selection model
based on the obtained first performance metric and the obtained second
performance metric.” We agree with and adopt as our own the Examiner’s
finding that Hellwig’s codec selection based on impairment values discloses
the recited claim limitation. See Ans. 5 (citing Hellwig 62, 63); see also
Ans. 32—33. Hellwig (Tflf 62—63) discloses a terminating MSC analyzing
impairment values to determine an optimal codec sequence, and
activating/deactivating codecs along the communication link in accordance
with the optimal codec sequence. Contrary to Appellant’s argument (iii),
Hellwig activates/deactivates codecs based on impairment values, and the
broad claim language does not require the performance metric to be obtained
during a call or to be otherwise actively obtained as argued.
Because we find one of the contested fact findings to be erroneous,
we, therefore, do not sustain the Examiner’s rejection based on Hellwig of
claim 25.
The Obviousness Rejection of Claims 1-3 and 8-12
over Hellwig and Amster
The Examiner finds Hellwig and Amster teach all limitations of claim
1. Ans. 7—10. The Examiner relies on Hellwig for all limitations of claim 1,
except for the recited “modifying a first impairment value for the first
network connection according to the first performance metric; modifying a
second impairment value for the second network connection according to the
second performance metric” for which the Examiner relies on Amster. Ans.
10 (citing Amster, col. 2,11. 9—13, 21—30, cols. 3—4).
11
Appeal 2015-005913
Application 13/329,200
Appellant presents the following principal arguments:
i. “Hellwig teaches receiving expected impairment values for a
codec that has yet to be selected. In sum, Hellwig is silent concerning
obtaining any sort of metric (i.e. measurement) that is indicating a (current)
condition of a network.” App. Br. 18; see also Reply Br. 13—14.
ii. “Amster only teaches measure of impairments in a single
network, not first and second networks as claimed.” App. Br. 18; see also
Reply Br. 14—15.
iii.
Hellwig merely teaches that the E-model is used to examine
expected impairment values/TAI element to derive a list of
supported codecs, not generating or updating a codec selection
model based on first and second impairment values modified by
respective first and second performance metrics. Appellant also
maintains that Amster only teaches a method to determine
conversational voice quality of Voice-over-Packet
transmissions (see col. 2, lines 34-38, col. 4, lines 10-14, and
claim 1), but is silent concerning any sort [of] use of the
monitored metrics, much less generating or updating of a codec
selection model based on first and second impairment values
modified by respective first and second performance metrics.
App. Br. 20; see also Reply Br. 15—16.
iv.
Amster teaches away from the proposed combination of
Hellwig and Amster, that it teaches away from the use of the E-
model, as specified, as a measure of voice quality. It is further
clear that Hellwig teaches away from the proposed combination
in that it teaches the use of expected impairment values to avoid
the need to make measurements, as called for in Amster.
App. Br. 21; see also Reply Br. 16—17.
We do not see any error in the contested findings of the Examiner.
Nor do we see any error in the Examiner’s conclusion of obviousness.
12
Appeal 2015-005913
Application 13/329,200
Regarding argument (i), the Examiner did not err in finding Hell wig
discloses claim l’s recited “obtaining a first performance metric indicating a
condition of a first network” and “obtaining a second performance metric
indicating a condition of a second network.” We agree with and adopt as
our own the Examiner’s finding that Hellwig’s impairment values disclose
the recited performance metrics. See Ans. 7—8; see also Ans. 33—34.
Contrary to Appellant’s argument (i), Hellwig’s impairment value indicates
the condition of the network because Hellwig’s impairment value provides
information representative of the expected impairment. See Hellwig,
Abstract. Put another way, Hellwig’s impairment value indicates the
expected impairment when the associated codec is used on the network,
which is a condition of the network.
Regarding arguments (ii) and (iii),
[t]he test for obviousness is not whether the features of a
secondary reference may be bodily incorporated into the
structure of the primary reference; nor is it that the claimed
invention must be expressly suggested in any one or all of the
references. Rather, the test is what the combined teachings of
the references would have suggested to those of ordinary skill
in the art.
In re Keller, 642 F.2d 413, 425 (CCPA 1981) (citations omitted).
Here, the Examiner finds Amster’s disclosure of deriving a quality
measure from measured delay, jitter, and packet loss teaches modifying an
impairment value for a network connection according to a performance
metric. See Ans. 9—10 (citing Amster, col. 2,11. 21—30, cols. 3^4); see also
Ans. 34. We agree with and adopt this finding as our own. The Examiner
reasons
[a]t the time the invention was made it would have been
obvious to modify Hellwig’s modeling of path quality to
13
Appeal 2015-005913
Application 13/329,200
include Amster’s measuring of delay, jitter and loss. One of
ordinary skill in the art would [have been] motivated to do so to
facilitate ongoing metric measurements to improve quality[.]
Ans. 10 (citing Amster, col. 2,11. 9—13); see also Ans. 34. We agree with
and adopt this reasoning as our own. Thus, to the extent Amster teaches an
impairment value for a single network (Appellant’s argument (ii)), Hellwig’s
teaching of obtaining first and second performance metrics, when modified
in light of Amster’s teaching of modifying an impairment value, would have
suggested to a skilled artisan modifying first and second impairment values
as recited in claim 1.
Further, the Examiner further finds Hellwig’s impairment values teach
generating or updating a codec selection model based on first and second
performance metrics. See Ans. 8 (citing Hellwig 62—63). We agree with
and adopt this finding as our own. Thus, Hellwig, when combined with
Amster, teaches claim l’s recited “generating or updating a codec selection
model based on the first impairment value modified by the obtained first
performance metric and the second impairment value modified by the
obtained second performance metric.” See Ans. 9—10 (citing Amster, col. 2,
11. 9—13, 21—30, cols. 3^4); see also Ans. 34 and Amster, Abstract (“From
the delay and loss measurements, analytic values for the voice quality
impairment caused by delay and by network loss, respectively, are
established.”).
Regarding argument (iv), while an alternative may be inferior to or
less desirable than another, that alone is insufficient to teach away from the
inferior alternative unless the disclosure criticizes, discredits, or otherwise
discourage that alternative. In re Fulton, 391 F.3d 1195, 1200-1 (Fed. Cir.
2004). Here, Hellwig (]Hf 62—63) discloses using expected impairment
14
Appeal 2015-005913
Application 13/329,200
values. This does not constitute a teaching away from delay and loss
measurements. Amster’s Abstract discloses delay and loss measurements.
This also does not constitute a teaching away from using expected
impairment values.
We, therefore, sustain the Examiner’s rejection based on Hellwig and
Amster of claim 1, as well as claims 2 and 8—12, which are not argued
separately with particularity.
Claim 3 further recites “wherein the codec selection model is based on
at least one of processing delay, algorithmic delay, and buffering delay.”
The Examiner finds this further recited subject matter is taught by Hellwig.
See Ans. 11 (citing Hellwig 6, 14); see also Ans. 37.
Appellant presents the following principal argument: Hellwig
discloses transcoding induced speech impairment, but is silent with regard to
delay. App. Br. 22; see also Reply Br. 18.
We see an error in the contested finding of the Examiner. The
Examiner erred in finding Hellwig teaches the recited subject matter of
claim 3.
Hellwig (1 6) discloses: “The number of transcoding stages in a
connection end to end can significantly affect the speech quality. More than
three transcoding stages typically cause substantial speech impairment.”
Hellwig (114) discloses: “Conventional E-Model techniques assume that
these impairments are added along the voice path.”
Thus, we agree with Appellant that Hellwig is silent with regard to
delay, and does not teach the recited subject matter of claim 3.
We, therefore, do not sustain the Examiner’s rejection based on
Hellwig and Amster of claim 3.
15
Appeal 2015-005913
Application 13/329,200
The Obviousness Rejection of Claims 13-15 and 20-24
over Hell wig and Khanduri
The Examiner finds Hellwig and Khanduri teach all limitations of
claim 13. Ans. 12—15. The Examiner relies on Hellwig for all limitations of
claim 13, except for the recited “update the codec selection model during a
call in response to a change in the first performance metric or the second
performance metric during the call,” for which the Examiner relies on
Khanduri. Ans. 14—15 (citing Khanduri | 64). The Examiner reasons “it
would have been obvious to one of ordinary skill in the art to modify
Hellwig to include dynamic updating according to quality as in Khanduri.
One of ordinary skill in the art would be motivated to do so for the dynamic
nature of speech and VOIP channel.” Ans. 15 (citing Khanduri 129).
Appellant presents the following principal arguments:
i.
Hellwig only teaches that each individual indicator value
provides information representative of the expected
accumulated impairment along a candidate connection path, and
that [f]or a given individual connection, a supported codec list
with [a] TAI element listing individual impairment values for
candidate paths is received, not obtained.
App. Br. 27; see also Reply Br. 21—22.
ii. Khanduri does not teach claim 13’s recited “update the codec
selection model during a call in response to a change in the first performance
metric or the second performance metric during the call.” See App. Br. 28—
29; see also Reply Br. 22—23.
We see an error in the contested findings of the Examiner.
Regarding argument (i), the Examiner did not err in finding Hellwig
discloses the recited (claim 13) “a network performance module configured
16
Appeal 2015-005913
Application 13/329,200
to obtain a first performance metric indicating a condition of the first
network and a second performance metric indicating a condition of the
second network.” We agree with and adopt as our own the Examiner’s
finding that Hellwig’s impairment values disclose the recited performance
metrics. See Ans. 12—13 (citing Hellwig 28); see also Ans. 41—43.
Hellwig (128) discloses “[e]ach value of the indicator indicates the
accumulated impairment associated with the corresponding supported
coding scheme of the current stage, as well as the impairment of any coding
schemes along one particular candidate path chosen among the plurality of
candidate paths leading to the current stage.”
Contrary to Appellant’s argument (i), Hellwig’s impairment value
indicates the condition of the network because Hellwig’s impairment value
provides information representative of the expected impairment. See
Hellwig 128; see also Hellwig, Abstract. Put another way, Hellwig’s
impairment value indicates the expected impairment when the associated
codec is used on the network, which is a condition of the network.
Regarding argument (ii), the Examiner erred in finding Khanduri
teaches claim 13 ’s recited “update the codec selection model during a call in
response to a change in the first performance metric or the second
performance metric during the call.” In the rejection, the Examiner cites to
Khanduri (| 64) as teaching the recited subject matter. See Ans. 15; see also
Ans. 43. Khanduri (| 64) discloses: “[tjhis voice quality and network
performance data can be used by network engineers for network assessment,
and engineers can use this data for remote voice quality analysis, i.e.,
without having to travel to a customer’s site.” We agree with Appellant that
17
Appeal 2015-005913
Application 13/329,200
the cited portion of Khanduri does not teach updating the codec selection
model during the call.
Because we find one of the contested fact findings to be erroneous,
we, therefore, do not sustain the Examiner’s rejection based on Hellwig and
Khanduri of claim 13, or of claims 14, 15, and 20-24, which depend from
claim 13.
The Obviousness Rejection of Claim 26 over
Hellwig, Amster, and Khanduri
The Examiner finds the combination of Hellwig, Amster, and
Khanduri teaches all limitations of claim 26. Ans. 17—18; see also Ans. 39.
The Examiner finds Khanduri teaches the claim 26’s recited “wherein the
codec selection model is updated during a call in response to a change in the
first impairment value or the second impairment value.” Ans. 17 (citing
Khanduri | 64). The Examiner reasons
it would have been obvious to one of ordinary skill in the art to
modify Hellwig and Amster to include dynamic updating
according to quality as in Khanduri. One of ordinary skill in
the art would [have been] motivated to do so for the dynamic
nature of speech and VOIP channel.
Ans. 17—18 (citing Khanduri 129).
Appellant presents the following principal argument:
Khanduri does not teach claim 26’s recited “wherein the codec
selection model is updated during a call in response to a change in the first
impairment value or the second impairment value.” See App. Br. 24—25; see
also Reply Br. 19—20.
We see an error in the contested finding of the Examiner.
18
Appeal 2015-005913
Application 13/329,200
We agree with Appellant that the cited portion of Khanduri does not
teach updating the codec selection model during the call, for reasons
discussed above when addressing claim 13.
We, therefore, do not sustain the Examiner’s rejection based on
Hellwig, Amster, and Khanduri of claim 26.
The Obviousness Rejection of Claims 4—6 over
Hellwig, Amster, and Everson
Appellant does not present separate arguments for claims 4 and 6. See
App. Br. 21—22; see also Reply Br. 17.
We, therefore, sustain the Examiner’s rejection based on Hellwig,
Amster, and Everson of claims 4 and 6.
The Examiner finds the combination of Hellwig, Amster, and Everson
teaches all limitations of claim 5. Ans. 18—19; see also Ans. 38. The
Examiner finds Everson teaches claim 5’s recited “wherein each of the
factors is assigned a weight and wherein generating or updating the codec
selection model includes taking into account each of the factors to the extent
of its assigned weight.” Ans. 18—19 (citing Everson, Abstract). The
Examiner reasons:
it would have been obvious to one of ordinary skill in the art to
modify Hellwig and Amster to include measuring network
characteristics such as bandwidth, loss and delay etc. as
Everson. One of ordinary skill in the art would [have been]
motivated to do this to improve quality of the call and to avoid
degradation.
Ans. 19 (citing Everson, col. 2,11. 4—10).
19
Appeal 2015-005913
Application 13/329,200
Appellant presents the following principal argument:
The final Office Action relies on Everson as disclosing a codec
selection mechanism that measures the effective data
transmission rate and other network characteristics such as
delay, bandwidth, jitter and packet loss rates. However,
Appellant respectfully points out that the proposed combination
of Hellwig, Amster and Everson still does not teach or suggest
both assigning a weight, but also “generating or updating the
codec selection model includes taking into account each of the
factors to the extent of its assigned weight.”
App. Br. 23; see also Reply Br. 18—19.
We see an error in the contested finding of the Examiner.
Everson discloses:
A VoIP call signaling method including a codec selection
mechanism that measures the effective data transmission rate
and other network characteristics. In some embodiments, a
proxy performs a network test between itself and both end
terminals to quantify the quality of the link before notifying
both of the endpoints the optimal codec they should use for a
peer-to-peer call. In alternative embodiments, the proxy informs
the endpoints of the network characteristics and allows the
endpoints to negotiate the codec selection. The network test
preferably identifies delay, bandwidth, jitter and packet loss
rates.
Abstract (emphasis added). Everson further discloses:
One deficiency of this codec selection process is that the
devices may not have network connections that are able to
support communication at the selected data rate or quality of
service required for the selected codec. If either device has a
network connection that cannot support the selected coded, the
overall quality of the VoIP call will be degraded. Therefore, an
improved codec selection mechanism is desired.
Col. 2,11. 4-10.
20
Appeal 2015-005913
Application 13/329,200
We agree with Appellant that the cited portion of Everson does not
teach taking into account each of the factors to the extent of its assigned
weight. In particular, we do not readily see, in Everson, taking into account
specifically assigned weights for a plurality of factors, as claimed. See
Everson, Abstract, col. 2,11. 4—10.
We, therefore, do not sustain the Examiner’s rejection based on
Hell wig, Amster, and Everson of claim 5.
The Obviousness Rejection of Claims 16-18
OVER HELLWIG, KHANDURI, AND EVERSON
Claims 16—18 depend from claim 13. The Examiner does not find
that Everson cures the deficiencies of Hellwig and Khanduri discussed
above when addressing claim 13. See Ans. 19—21, 43, 44.
We, therefore, do not sustain the Examiner’s rejection based on
Hellwig, Khanduri, and Everson of claims 16—18 for reasons discussed
above with respect to claim 13.
The Obviousness Rejection of Claim 7 over
Hellwig, Amster, and Kampmann
Appellant does not present separate arguments for claim 7. See App.
Br. 8—31; see also Reply Br. 2—25.
We, therefore, sustain the Examiner’s rejection of claim 7.
21
Appeal 2015-005913
Application 13/329,200
The Obviousness Rejection of Claim 19 over
Hell wig, Khanduri, and Kampmann
Claim 19 depends from claim 13. The Examiner does not find that
Kampmann cures the deficiencies of Hellwig and Khanduri discussed above
when addressing claim 13. See Ans. 22.
We, therefore, do not sustain the Examiner’s rejection based on
Hellwig, Khanduri, and Kampmann of claim 19.
DECISION
The Examiner’s decision rejecting claims 1, 2, 4, 6—12, 25, and 27 is
affirmed.
The Examiner’s decision rejecting claims 3, 5, 13—24, and 26 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)(1).
AFFIRMED-IN-PART
22