Ex Parte Sahoo

Patent Trial and Appeal Board

Nov 9, 2017

13725201 (P.T.A.B. Nov. 9, 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
ATTORNEY DOCKET NO. CONFIRMATION NO.
10202-12007AUS 8153
EXAMINER
MIAH, LITON
ART UNIT PAPER NUMBER
2642
NOTIFICATION DATE DELIVERY MODE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/725,201 12/21/2012
58898 7590 11
Lempia Summerfield Katz LLC
20 South Clark
Suite 600
CHICAGO, IL 60603
Sanjib Sahoo
11/14/2017 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):
docket-us @ lsk-iplaw.com
mail@lsk-iplaw.com
pair_lsk @ firsttofile.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SANJIB SAHOO
Appeal 2017-002263
Application 13/725,2011
Technology Center 2600
Before KRISTEN L. DROESCH, CATHERINE SHIANG, and
JOYCE CRAIG, Administrative Patent Judges.
CRAIG, Administrative Patent Judge.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 1—25, which are all of the claims pending in this
application. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 The Applicant is OptionMonster Holdings, Inc. and the Brief identifies
Trademonster Group, Inc. as the real party in interest. App. Br. 2.
Appeal 2017-002263
Application 13/725,201
INVENTION
Appellant’s invention relates to the provisioning of a service to a
device. Abstract. Claim 1 below reads as follows, with the disputed
limitation emphasized:
1. A computer implemented method for dynamically managing
utilization of at least one capability of a device, the device
executing at least one application operative to receive a plurality
of data transmitted from a data source to the device over a period
of time, the method comprising:
monitoring, by a processor, during the period of time,
utilization of the at least one capability to determine an available
portion thereof; and
causing, by the processor based on the determined
available portion of the at least one capability of the device, the
at least one application to cause the data source to modify the
transmission of the data to the device.
REJECTION
Claims 1—25 stand rejected under pre-AIA 35 U.S.C. § 103(a) as
unpatentable over the combination of Rohrle (EP 1317109 Al; published
June 4, 2003) and Bae (US 2011/0149763 Al; published June 23, 2011).
ANALYSIS
We have considered Appellant’s arguments, but do not find them
persuasive of error. We agree with and adopt as our own the Examiner’s
findings of facts and conclusions as set forth in the Examiner’s Answer and
in the Final Action from which this appeal was taken. We provide the
following explanation for emphasis.
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Application 13/725,201
In rejecting representative claim 1, the Examiner found Rohrle teaches
or suggests all of the recited limitations, except the “causing” limitation
shown in italics above. Final Act. 3. For that limitation, the Examiner relied
on Bae. Id. at 3^4 (citing Bae 15, 87).
Appellant contends the Examiner erred because each of Rohle and
Bae fails to teach or suggest the disputed “causing” limitation. App. Br. 4,
6. With regard to Bae, Appellant argues that, although Bae teaches that the
server calculates the transmission bandwidth based on the time stamp
provided by the reception apparatus and streams to the reception apparatus
using that calculated bandwidth, “there is no teaching or suggestion that the
reception apparatus tells the server to modify the transmission bandwidth.”
Id. at 8; see also Reply Br. 5 (‘TTlhere is no teaching or suggestion that the
reception apparatus calculates available bandwidth or otherwise causes, tells
or otherwise directs the server to modify the transmission bandwidth.”).
We are not persuaded the Examiner erred. Appellant’s argument that
Rohrle does not teach or suggest the disputed limitation is not persuasive
because the Examiner relied on Bae, not Rohrle, as teaching or suggesting
the disputed limitation. See Final Act. 3^4 (citing Bae ]Hf 15, 87).
Appellant’s argument regarding the teachings of Bae is not persuasive
because it addresses features that are beyond the scope of claim 1. Claim 1
does not recite, or otherwise require, that “the reception apparatus tells the
server to modify the transmission bandwidth,” as Appellant asserts. See
App. Br. 8; see also Reply Br. 5. Rather, claim 1 requires “the at least one
application to cause the data source to modify the transmission of the data to
the device.” App. Br. 11. The Examiner found, and we agree, that Bae’s
teaching of calculating a bandwidth based on information from the receiving
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Application 13/725,201
apparatus, and using the calculated bandwidth to stream data to the receiving
apparatus, teaches or suggests the limitation “the at least one application to
cause the data source to modify the transmission of the data to the device,”
recited in claim 1. Ans. 4—5. Because we decline Appellant’s invitation to
read limitations directed to telling, or otherwise directing, the server to
modify the transmission bandwidth into the claim, Appellant has not
persuasively rebutted the Examiner’s findings.
Moreover, Appellant attacks Rohrle and Bae individually, even
though the Examiner relies on the combined teachings of the references in
rejecting claim 1. Nonobviousness cannot be established by attacking the
references individually when the rejection is predicated upon a combination
of prior art disclosures. In re Merck & Co., Inc. 800 F.2d 1091, 1097 (Fed.
Cir. 1986). The test for obviousness is not whether the claimed invention is
expressly suggested in any one or all of the references, but whether the
claimed subject matter would have been obvious to those of ordinary skill in
the art in light of the combined teachings of those references. In re Keller,
642 F.2d 413, 425 (CCPA 1981). Appellant has not persuasively addressed
what the combined teachings of Rohrle and Bae would have suggested to an
artisan of ordinary skill.
For these reasons, we are not persuaded the Examiner erred in finding
that the combination of Rohrle and Bae teaches or suggests the disputed
limitation.
Accordingly, we sustain the Examiner’s 35 U.S.C. § 103(a) rejection
of representative independent claim 1, as well as the Examiner’s 35 U.S.C.
§ 103(a) rejection of grouped independent claims 10 and 19 and grouped
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Application 13/725,201
dependent claims 2—9, 11—18, and 20-25, not argued separately. See App.
Br. 9; see also 37 C.F.R. § 41.37(c)(l)(iv).
DECISION
The decision of the Examiner to reject claims 1—25 is affirmed.
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). See
37 C.F.R. § 41.50(f).
AFFIRMED
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