Ex Parte Rahrer et al

Patent Trial and Appeal Board

Sep 27, 2016

12342174 (P.T.A.B. Sep. 27, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/342,174 12/23/2008
27820 7590 09/29/2016
WITHROW & TERRANOVA, P.L.L.C.
106 Pinedale Springs Way
Cary, NC 27511
FIRST NAMED INVENTOR
Timothy J. Rahrer
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.
7000-637 2214
EXAMINER
TARKO,ASMAMAWG
ART UNIT PAPER NUMBER
2482
NOTIFICATION DATE DELIVERY MODE
09/29/2016 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):
patents@wt-ip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte TIMOTHY J. RAHRER, EMRE GUNDUZHAN,
and MARTIN JAN SOUKUP
Appeal2015-002650
Application 12/342,174
Technology Center 2400
Before JOHN A. JEFFERY, LARRY J. HUME, and JOYCE CRAIG,
Administrative Patent Judges.
JEFFERY, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's
decision to reject claims 1-5 and 7-23. Claim 6 has been indicated as
containing allowable subject matter. Ans. 2. 1 We have jurisdiction under
35 U.S.C. § 6(b). We affirm-in-part.
1 Throughout this opinion, we refer to ( 1) the Appeal Brief filed
June 2, 2014 ("App. Br."); (2) the Examiner's Answer mailed
October 28, 2014 ("Ans."); and (3) the Reply Brief filed December 22, 2014
("Reply Br.").
Appeal2015-002650
Application 12/342,174
STATEMENT OF THE CASE
Appellants' invention corrects media packet errors by using different
error correction processes on different network segments. See generally
Abstract; Spec. i-fi-1 7-9. Claim 1 is illustrative:
1. A method for delivering a plurality of media packets in a
switched digital video network from a head end to a customer
premises apparatus through a video serving office and a
residential gateway, the method comprising:
receiving at the video serving office a first plurality of
video packets;
providing first error correction on the first plurality of
video packets using a first error correction process;
sending a second plurality of video packets comprising
the first plurality of video packets via the switched digital video
network to the residential gateway; and
providing second error correction on the second plurality
of video packets using a second error correction process at the
residential gateway, wherein the first error correction process is
different from the second error correction process.
THE REJECTIONS
The Examiner rejected claims 1-3, 9, 11-17, 19, and 21-23 under
35 U.S.C. § 103(a) as unpatentable over Bhatt (US 2003/0005386 Al;
Jan. 2, 2003) and Driessen (US 2005/0010850 Al; Jan. 13, 2005). Ans. 3-7.
The Examiner rejected claims 4, 5, 10, and 20 under 35 U.S.C.
§ 103(a) as unpatentable over Bhatt, Driessen, and Wu (US 2006/0159026
Al; July 20, 2006). Ans. 7-8.
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Application 12/342,174
The Examiner rejected claims 7, 8, and 18 under 35 U.S.C. § 103(a)
as unpatentable over Bhatt, Driessen,2 and Song (US 2008/0002765 Al; Jan.
3, 2008). Ans. 8-9.
THE OBVIOUSNESS REJECTION OVER BHATT AND DRIESSEN
The Examiner finds that Bhatt discloses every recited element of
claim 1 except for two different devices performing two different error
correction processes on the same packets, but cites Driessen as teaching this
feature in concluding that the claim would have been obvious. Ans. 3--4.
Appellants argue the Examiner's reliance on Driessen is misplaced
not only because Driessen mitigates errors by concealing-not correcting-
them, but also because this mitigation is said to be used as an alternative to
forward error correction (FEC), not in addition to that correction. App.
Br. 7-9; Reply Br. 2-3. As such, Appellants contend, Driessen does not
perform different error correction processes on the same packets. Id.
Appellants argue other recited limitations summarized below.
ISSUES
Under§ 103, has the Examiner erred by finding that Bhatt and
Driessen collectively would have taught or suggested:
2 Although the Examiner omits Driessen in this rejection, claims 7, 8, and 18
depend from independent claims 1 and 15 that are rejected over Bhatt and
Driessen. Compare Ans. 3, with Ans. 8. The Examiner, however,
acknowledges that claims 7, 8, and 18 include limitations similar to those
treated in the rejections of independent claims 1 and 15, and are "met by the
references as discussed above" (Ans. 8}-references that include Driessen.
We, therefore, presume that the Examiner intended to include Driessen in
this rejection, and treat the Examiner's error in this regard as harmless.
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Application 12/342,174
( 1 )(a) providing first error correction on a first plurality of video
packets using a first error correction process, and (b) providing second error
correction on a second plurality of video packets using a second error
correction process different from the first at a residential gateway as recited
in claim 1?
(2) removing a second plurality of FEC packets from a first plurality
of FEC packets to form a third plurality of such packets, and sending the
first plurality of video packets and the third plurality of FEC packets to a
second service node as recited in claim 11?
(3) the receiving and sending steps of claim 14?
( 4) the second plurality of error correction packets is a proper subset
of the first plurality of error correction packets as recited in claim 17?
ANALYSIS
Claims 1-3, 9, 15, 16, 19, and 21-23
We begin by noting key aspects of independent claim 1. Although the
claim requires receiving a first plurality of video packets at the video serving
office, the first error correction process need not be performed at that
location, unlike the second error correction process which must be
performed at the residential gateway. That is, claim 1 requires performing
the second error correction process at the residential gateway, but lacks a
similar requirement that the first error correction process be performed at the
video serving office. Indeed, the first error correction could occur at some
other location---even the residential gateway in addition to the second error
correction process being performed at that location.
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Application 12/342,174
In the latter case, the first error correction need not occur before
sending the second plurality of video packets to the residential gateway, for
it is well settled that method steps are not ordinarily construed to require an
order unless they expressly or implicitly require performance in that order,
which is not the case here. See Altiris v. Symantec Corp., 318 F.3d 1363,
1369 (Fed. Cir. 2003) (citing Interactive Gift Express, Inc. v. Compuserve
Inc., 256 F.3d 1323, 1342--43 (Fed. Cir. 2001)). That is, the second plurality
of video packets could be sent to the residential gateway before providing
both recited error correction processes on the respective packet pluralities
either at (1) the residential gateway, or (2) the gateway and some other
location.
Therefore, to the extent that Appellants contend that both recited error
corrections must occur at different locations (see Reply Br. 2), such an
argument is not commensurate with the scope of the claim.
Nor does claim 1 require that the first and second pluralities of video
packets differ, unlike both recited error correction processes which must be
different. Although the second plurality of video packets comprises the first
such plurality in claim 1 's sending step, that recitation does not mean that
they are necessarily different. That Appellants argue repeatedly that both
recited error correction processes are performed on the same packet (App.
Br. 8; Reply Br. 2-3) only bolsters this conclusion.
Turning to the rejection, we first note that the Examiner's reliance on
Bhatt for teaching various limitations of claim 1 (Ans. 3) is undisputed, as is
its combinability with Driessen. Notably, in one of the cited paragraphs of
Bhatt, both servers 202 and 206 in Figure 2 can generate error correction
data associated with streamed media-not just one. Bhatt i-f 42 (noting that
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Application 12/342,174
server 202 and/or server 206 can generate error correction data). The
Examiner, however, cites Driessen for teaching two different devices
performing two different error correction processes on the same packets.
Ans. 3--4, 9.
We see no error in the Examiner's findings in this regard. As shown
in Driessen's Figure 1, transmitter unit 110 includes FEC circuit 113 that
calculates error correction data for the original data, both of which are
transmitted to receiver unit 140 after packetizing. Driessen i-fi-123, 35, 37-
39, 43--49; Fig. 2. Upon receipt, if the receiver unit determines that a packet
is corrupted, then the receiver's FEC circuit 143 corrects the corrupted data.
Driessen i-fi-141, 52; Fig. 3 (steps 320-340). But if corrupted data remains in
the corrected data, the receiver's FEC circuit transmits the data packet to
mitigator circuit 144 for correction. Driessen i-fi-1 40--41, 52; Fig. 3 (steps
360 ("YES" condition) and 350). Therefore, despite Appellants' arguments
to the contrary (App. Br. 8-9; Reply Br. 2), Driessen's system performs two
different error correction processes sequentially: one performed by the FEC
circuit, and then the other performed by the mitigator circuit.
Appellants' contention that Driessen' s error mitigation conceals-but
does not correct---errors (App. Br. 8; Reply Br. 1) is unavailing. As
Driessen indicates in paragraph 7, error mitigation replaces corrupted data
with interpolated data, and is sometimes known as error concealment. But
despite this label, Driessen is replete with teachings that error mitigation
corrects erroneous data. See, e.g., Driessen i140 (noting that data packets
are sent to mitigator circuit 144 for correction). See also id., claim 7
(reciting that the receiver performs error mitigation to correct corrupt data);
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Application 12/342,174
claim 23 ( recitingjurther correcting erroneous data by performing error
mitigation).
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 1, and claims 2, 3, 9, 15, 16, 19, and 21-23 not argued separately with
particularity. 3
Claims 11-13
We will not, however, sustain the Examiner's rejection of independent
claim 11 reciting, in pertinent part, removing a second plurality of FEC
packets from the first plurality of FEC packets to form a third plurality of
such packets, and sending the first plurality of video packets and the third
plurality of FEC packets to a second service node. As Appellants indicate,
this limitation requires creating a subset of FEC packets, namely the third
plurality of FEC packets, and sending that subset along with the first
plurality of video packets to the second service node. App. Br. 9-1 O; Reply
Br. 3--4.
In the rejection, the Examiner relies solely on Bhatt's paragraph 47 for
teaching this limitation. Ans. 5. This paragraph notes that a requested error
correction level can specify the density of error correction packets and the
number of streaming media packets in a span, and that server 206 can either
3 Although Appellants group independent claim 15 with independent claim
14, Appellants nonetheless argue claim 15 for the reasons indicated for
claim I-not claim 14 which recites different limitations. See App. Br. 11-
12. We, therefore, group claim 15 with claim 1. We similarly group
independent claim 21 with claim 1 despite Appellants grouping claim 21
with claim 17 which recites different limitations. See App. Br. 12 (arguing
that claim 21 contains limitations similar to those in claim 1 ).
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Application 12/342,174
( 1) accept that request; ( 2) propose a different correction level; or ( 3)
override the requested error correction level. Bhatt i-f 4 7. But the Examiner
does not explain how or why this process creates a subset of FEC packets by
removing a second plurality of such packets from the first plurality of video
packets, let alone sending this subset along with the first plurality of video
packets to a second service node as claimed. See Ans. 5, 9-10. Although
the Examiner concludes that it would have been obvious to correct an error
by replacing or removing a defect in light of Bhatt and Driessen (Ans. 9-10),
to the extent that the Examiner likewise concludes that the recited subset-
based limitations would have been obvious, we find such a position
problematic for the reasons noted above and by Appellants. App. Br. 9-1 O;
Reply Br. 3--4.
Therefore, we are persuaded that the Examiner erred in rejecting (1)
independent claim 11, and (2) dependent claims 12 and 13 for similar
reasons. Because this issue is dispositive regarding our reversing the
rejection of these claims, we need not address Appellants' other arguments
regarding claims 12 and 13. App. Br. 10.
Claim 14
We will also not sustain the Examiner's rejection of independent
claim 14 reciting, in pertinent part, (1) receiving, at a first service node, a
first plurality of interleaved data packets comprising a first plurality of video
packets and a first plurality of FEC packets, and (2) sending, to a second
service node, a second plurality of data packets comprising the first plurality
of video packets and a second plurality of FEC packets comprising a proper
subset of the first plurality of FEC packets, where the second plurality of
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Application 12/342,174
data packets is sent in a sequential order based on the recited sequence
number.
In the rejection, the Examiner concludes summarily that claim 14's
limitations are similar to those in other rejections, and are ostensibly met by
Bhatt and Driessen without further explanation. Ans. 6. But as Appellants
indicate, claim 14 contains different limitations that the Examiner fails to
address in the rejection. App. Br. 11. Despite citing Bhatt's Figure 7 on
page 11 of the Answer in responding to Appellants' arguments, the
Examiner does not explain how or why this figure or its associated
functionality teaches or suggests the recited limitations apart from mere
conclusory assertions. See Ans. 10-11. Although this figure pertains to
applying FEC encoding to sequential or non-sequential packets as noted in
Bhatt's paragraph 145 as Appellants indicate (Reply Br. 5), we fail to see
how this functionality teaches or suggests the particular limitations of claim
14 noted above. To the extent that the Examiner's position is premised on
Bhatt' s switching between sequential and non-sequential encoding in
paragraph 14 7 in connection with claim 14' s recited rearrangement of
interleaved packets in sequential order for sending to the second service
node, we cannot say on this record. Nor will we speculate in that regard
here in the first instance on appeal.
Therefore, we are persuaded that the Examiner erred in rejecting
claim 14.
Claim 17
We will also not sustain the Examiner's rejection of claim 17 reciting
that the second plurality of error correction packets is a proper subset of the
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Application 12/342,174
first plurality of error correction packets. As Appellants indicate (App.
Br. 12), the Examiner's relied-upon passages from Bhatt, namely paragraphs
41to43 and 47, and Figure 2, do not reasonably teach or suggest the recited
subset, nor has the Examiner explained how or why these passages teach this
feature. Nor will we speculate in that regard here in the first instance on
appeal. That the Examiner fails to respond to Appellants' arguments
regarding claim 17 in the Examiner's Answer only further undermines the
Examiner's position.
Therefore, we are persuaded that the Examiner erred in rejecting
claim 17.
THE REJECTION OVER BHATT, DRIESSEN, AND SONG
We also will not sustain the Examiner's rejection of claim 7 reciting
that ( 1) the first error correction process is an FEC process using respective
pluralities of row and column FEC packets, and (2) the second error
correction process is an FEC process using only a second plurality of
column FEC packets. As Appellants indicate (App. Br. 13), the Examiner's
relied-upon passages from Song, namely paragraphs 13 and 125 to 128, do
not reasonably teach or suggest the recited FEC error correction processes
that use the particular pluralities of column and row packets specified in the
claim, nor has the Examiner explained how or why these passages teach this
feature. Nor will we speculate in that regard here in the first instance on
appeal. That the Examiner fails to respond to Appellants' arguments
regarding claim 7 in the Examiner's Answer only further undermines the
Examiner's position.
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Therefore, we are persuaded that the Examiner erred in rejecting ( 1)
claim 7; (2) dependent claim 8 for similar reasons; and (3) claim 18 which
recites commensurate limitations.
THE REMAINING OBVIOUSNESS REJECTION
We will, however, sustain the Examiner's obviousness rejection of
claims 4, 5, 10, and 20 over Bhatt, Driessen, and Wu. Ans. 7-8. Appellants
reiterate similar arguments made in connection with claims 1 and 15 that we
find unpersuasive for the reasons previously discussed. See App. Br. 12-13.
CONCLUSION
Under§ 103, the Examiner did not err in rejecting claims 1-5, 9, 10,
15, 16, and 19-23, but erred in rejecting claims 7, 8, 11-14, 17, and 18.
DECISION
The Examiner's decision rejecting claims 1-5 and 7-23 is affirmed-
in-part.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED-IN-PART
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