Ex Parte Pujet et al

Patent Trial and Appeal Board

May 23, 2018

12114167 (P.T.A.B. May. 23, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/114,167 05/02/2008
83579 7590 05/25/2018
LEVEL 3 COMMUNICATIONS, LLC
Attn: Patent Docketing
1025 Eldorado Blvd.
Broomfield, CO 80021
FIRST NAMED INVENTOR
Nicolas Pujet
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.
0109-US-Ol 2528
EXAMINER
CHUNG, HOON J
ART UNIT PAPER NUMBER
2474
NOTIFICATION DATE DELIVERY MODE
05/25/2018 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):
patent.docketing@level3.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte NICOLAS PUJET and CHRIS McREYNOLDS
Appeal 2016-007036
Application 12/114, 167 1
Technology Center 2400
Before MAHSHID D. SAADAT, ADAM J. PYONIN, and
MICHAEL J. ENGLE, Administrative Patent Judges.
ENGLE, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 1--47. A hearing was held on May 8, 2018. We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM.
Technology
The application relates to "a content distribution platform (CDP) ...
to determine an optimal combination of one or more CDP components for
distributing a specified content item based on at least one content item
profile." Spec. Abstract.
1 According to Appellants, the real party in interest is Level 3
Communications, LLC. App. Br. 2.
Appeal2016-007036
Application 12/114, 167
Illustrative Claim
Claim 16 is illustrative and reproduced below with certain limitations
at issue emphasized:
16. A method comprising:
accessing a data store storing at least one content profile;
receiving the at least one content profile; and
determining, using the[2J at least one processor, an optimal
combination of at least two or more content distribution platform
(CDP) components for distributing a specified content item
based on the received at least one content profile.
Rejections
Claims 1-10, 16, 17, 20, 21, and 26-38 stand rejected under 35 U.S.C.
§ 103(a) as obvious over the combination of Othmer (US 2005/0154996 Al;
July 14, 2005) and Hudson et al. (US 2003/0204602 Al; Oct. 30, 2003).
Final Act. 8-16.
Claim 11 stands rejected under 35 U.S.C. § 103(a) as obvious over the
combination of Othmer, Hudson, and Official Notice. Final Act. 16-17.
Claims 12-15, 22-24, and 39 stand rejected under 35 U.S.C. § 103(a)
as obvious over the combination of Othmer, Hudson, and Vrijsen
(US 2009/0310020 Al; Dec. 17, 2009). Final Act. 17-20.
Claims 18, 19, and 40-47 stand rejected under 35 U.S.C. § 103(a) as
obvious over the combination of Othmer, Hudson, and Baumeister et al.
(US 2006/0112179 Al; May 25, 2006). Final Act. 20-22, 23-27.
Claim 25 stands rejected under 35 U.S.C. § 103(a) as obvious over the
combination of Othmer, Hudson, Vrijsen, and Kolhi et al. (US
2010/0312861 Al; Dec. 9, 2010). Final Act. 22-23.
2 We note that no "at least one processor" was previously introduced.
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Appeal2016-007036
Application 12/114, 167
ISSUE
Did the Examiner err in finding Hudson teaches or suggests a "content
profile" and "determining ... an optimal combination ... based on the
received at least one content profile," as recited in independent claim 16?
ANALYSIS
Independent claim 16 recites a "content profile" and "determining ...
an optimal combination ... based on the received at least one content
profile." Independent claims 1, 30, 35, 40, and 44 recite commensurate
limitations, with claims 1 and 30 reciting a "content item profile" rather than
a "content profile."
Appellants argue "Hudson's 'content identifier' is not a 'content
profile."' App. Br. 11; see also id. at 7-8 ("The 'content unit identifier' of
Hudson does not teach the 'content item profile' of claim 1 "). Appellants
further argue that because Hudson does not teach a "content profile,"
therefore "Hudson cannot teach that a determination is made based on a
received content profile." Id. at 11; see also id. at 8 (similar for claim 1).
The Examiner's Answer, however, correctly notes that "the Office
action, mailed on May 11, 2015, does not map the content unit identifier of
Hudson to the content item profile of the claim." Ans. 2 (emphasis omitted).
"Instead, the Office action clearly explains that Hudson discloses ....
catalog records (i.e., content item profile), which are used to select an
optimal set of peer nodes." Id. (citing Hudson i-fi-147, 48, 64).
In line with the Answer, the Final Office Action states:
Hudson '602 discloses at least one non-transitory computer
readable medium including at least one content item profile
(catalog records corresponding to the content segments
necessary to construct the requested content unit 1s
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Appeal2016-007036
Application 12/114, 167
received/accessed from database 44, and such information is
used to balance the distribution load, see FIG. 1, and i-f 47) ....
Final Act. 9 (emphasis added). The Final Office Action never mentions
Hudson's "content identifier" or "content unit identifier" for these
limitations. See Final Act. 9-10.
Although Appellants address Hudson's "catalog records" in the Reply
Brief (see Reply Br. 3-7), the Appeal Brief never addresses the Examiner's
reliance on Hudson's "catalog records." See App. Br. 6-19. By regulation,
"any arguments or authorities not included in the appeal brief will be refused
consideration by the Board for purposes of the present appeal." 37 C.F.R.
§ 41.37(c)(l)(iv); see also Ex parte Borden, 93 USPQ2d 1473, 1474 (BPAI
2010) (informative) ("Any bases for asserting error, whether factual or legal,
that are not raised in the principal brief are waived."). Also by regulation,
"[a]ny argument raised in the reply brief which was not raised in the appeal
brief ... will not be considered by the Board for purposes of the present
appeal, unless good cause is shown." 37 C.F.R. § 41.41(b)(2); see also Fuji
Photo Film Co. v. Jazz Photo Corp., 394 F.3d 1368, 1375 n.4 (Fed. Cir.
2005) (arguments first raised in a reply brief and not properly raised in the
opening brief are not addressed). Here, Appellants have not shown good
cause, so we do not consider their arguments regarding whether Hudson's
"catalog records" teach or suggest either the claimed profiles or optimization
based on such catalog records.
Appellants further contend that Othmer fails to teach or suggest use of
the claimed "content item profile." See App. Br. 8-10. The Examiner,
however, relied on Hudson's "catalog records" for teaching the claimed
"content item profile" or "content profile," not Othmer. Ans. 3; Final Act.
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Appeal2016-007036
Application 12/114, 167
8-9. As discussed above, Appellants waived any argument regarding
whether Hudson's "catalog records" teaches the claimed profile.
Appellants also argue Vrijsen, Baumeister, and Kolhi do not cure the
deficiencies of Hudson and Othmer. App. Br. 13, 14, 16, 19. For the
reasons discussed above, however, Appellants have not persuaded us that
Hudson or its combination with Othmer are deficient.
Accordingly, given the record before us, we sustain the Examiner's
rejections of independent claims 1, 16, 30, 35, 40, and 44, and their
dependent claims 2-15, 17-29, 31-34, 36-39, 41--43, and 45--47, which
Appellants argue are patentable for similar reasons. See App. Br. 11-19; 37
C.F.R. § 41.37(c)(l)(iv).
DECISION
For the reasons above, we affirm the decision rejecting claims 1--47.
No time for taking subsequent action in connection with this appeal
may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 41.50(f).
AFFIRMED
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