Ex Parte Seastrom et al

Patent Trial and Appeal Board

Jan 11, 2018

13831732 (P.T.A.B. Jan. 11, 2018)

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.
13/831,732 03/15/2013 Robert E. Seastrom TWC 12-32/1033-59 8736
98417 7590 01/11/2018
Otterstedt, Ellenbogen & Kammer, LLP
P.O. Box 381
Cos Cob, CT 06807-0381
EXAMINER
CHANG, JULIAN
ART UNIT PAPER NUMBER
2455
MAIL DATE DELIVERY MODE
01/11/2018 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ROBERT E. SEASTROM, WESLEY E. GEORGE IV, and
JEFFREY A. AITKEN
Appeal 2017-008923
Application 13/831,7321
Technology Center 2400
Before ERIC S. FRAHM, CARL L. SILVERMAN, and
SCOTT B. HOWARD, Administrative Patent Judges.
HOWARD, Administrative Patent Judge.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from the Final Rejection
of claims 1—15, 19, and 24—35, which constitute all of the claims pending in
this application. Claims 16—18 and 20-23 have been cancelled. See App.
Br. 18. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 Appellant is the Applicant, Time Warner Cable Enterprises LLC. The
Appeal Brief identifies Charter Communications, Inc. as the real party in
interest and states that “Bank of America, N. A. [] has a security
interest in the present application.” App. Br. 3.
Appeal 2017-008923
Application 13/831,732
THE INVENTION
According to the Specification, the disclosed and claimed invention is
directed to a system and method for “data distribution over a network.”
Spec. 11.
Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. A method for providing seamless redundancy in an
output data stream, the method comprising the steps of:
receiving a first data stream originating from a first
content source residing in a first location, the first data stream
being conveyed over a first network path;
receiving at least a second data stream originating from a
second content source residing in a second location that is
geographically distinct from the first location, the second data
stream comprising nominally identical content relative to the
first data stream, the second data stream being conveyed over a
second network path that is topologically distinct from the first
network path; and
computing first hash values as a function of first data
segments from the first data stream;
computing second hash values as a function of second
data segments from the second data stream;
combining the first data segments and the second data
segments based at least in part on the first hash values and the
second hash values to generate a single, uninterrupted output
data stream having a reduced likelihood of at least one of
overlapping, missing and corrupt data segments;
wherein at least a portion of the first data stream and at
least a portion of the second data stream are received
simultaneously.
REFERENCES
The prior art relied upon by the Examiner as evidence in rejecting the
claims on appeal is:
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Jones US 6,512,776 B1 Jan. 28, 2003
Moon US 6,944,123 B1 Sept. 13, 2005
Jost US 2007/0153679 A1 July 5, 2007
Pereira US 2007/0237185 A1 Oct. 11,2007
Deiss US 2014/0189751 A1 July 3, 2014
REJECTIONS
Claims 1—10, 15, 19, 26—28, and 31—34 stand rejected under pre-AIA
35 U.S.C. § 103(a) as being unpatentable over Jost in view of Jones. Final
Act. 9-20, 25-31.
Claim 11 stands rejected under pre-AIA 35 U.S.C. § 103(a) as being
unpatentable over Jost in view of Jones and Pereira. Final Act. 20—21.
Claims 12—14, 24, 25, and 35 stand rejected under pre-AIA 35 U.S.C.
§ 103(a) as being unpatentable over Jost in view of Jones and Moon. Final
Act. 21-25, 31-33.
Claims 29 and 30 stand rejected under pre-AIA 35 U.S.C. § 103(a) as
being unpatentable over Jost in view of Jones and Deiss. Final Act. 33—34.
ANALYSIS
We have reviewed the Examiner’s rejection in light of Appellant’s
arguments that the Examiner erred. In reaching this decision, we have
considered all evidence presented and all arguments made by Appellant.2
We are not persuaded by Appellant’s arguments regarding the pending
claims, and we incorporate herein and adopt as our own: (1) the findings
2 Rather than reiterate the entirety of the arguments of Appellant and the
positions of the Examiner, we refer to the Appeal Brief (filed Feb. 27, 2017);
the Reply Brief (filed May 31, 2017); the Final Office Action (mailed Mar.
31, 2017); and the Examiner’s Answer (mailed June 22, 2016) for the
respective details.
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and reasons set forth by the Examiner in the action from which this appeal is
taken (Final Act. 9—34), and (2) the reasons and rebuttals set forth in the
Examiner’s Answer in response to Appellant’s arguments (Ans. 30-43). We
incorporate such findings, reasons, and rebuttals herein by reference unless
otherwise noted. However, we highlight and address specific findings and
arguments for emphasis as follows.
Claims 1—10, 15, 19, 26—28, 31, and 32
First, Appellant argues Jones “teaches away from combining first data
segments from the first data stream and second data segments from the
second data stream to generate a single, uninterrupted output data stream.”
App. Br. 11 (citing Jones 5:25—37). According to Appellant, “rather than
combining data segments from multiple data streams in the manner recited
in claim 1, Jones expressly teaches that it is preferable to select a single data
stream and send only the selected data stream (i.e., exclusively data
segments from the selected single data stream) to all clients.” Id.
We find Appellant has not established that the prior art teaches away
from the claimed invention because Appellant has not demonstrated that “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.” In re
Gurley, 27 F.3d 551, 553 (Fed Cir. 1994). Appellant does not identify any
passage in Jones that explicitly discredits or discourages combining data
segments from the multiple data streams; instead, the cited section merely
states a preference for a different way of processing multiple data streams
with the same content. See Jones 5:25—37. Accordingly, Jones “does not
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teach away. . . [as] it merely expresses a general preference for an alternative
invention but does not ‘criticize, discredit, or otherwise discourage’
investigation into the invention claimed.” DePuy Spine, Inc. v. Medtronic
Sofamor Danek, Inc., 567 F.3d 1314, 1327 (Fed. Cir. 2009) (quoting In re
Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004)).
Second, Appellant argues that “[t]he Examiner has not provided any
reason why one skilled in the art, when combining Jones with Jost, would
have used the packet selection process taught by Jost.” App Br. 12. As
support for this contention, Appellant argues Jost teaches “encryption ... is
precluded between the video source and the edge device.” Id. (quoting Jost
115). However, according to Appellant, the Specification discusses
encryption and decryption at the headend. Id. (citing Spec. H 47, 50, 64).
During prosecution, claims must be given their broadest reasonable
interpretation while reading claim language in light of the specification as it
would be interpreted by one of ordinary skill in the art. In re Am. Acad, of
Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). However, we will not
read limitations from the specification into the claims. In re Van Geuns, 988
F.2d 1181, 1184 (Fed. Cir. 1993). Regardless of the general contentions and
imputed intended meanings articulated by Appellant in the Appeal Brief,
“[i]t is the claims that measure the invention.” SRIInt’l v. Matsushita Elec.
Corp. of Am., 775 F.2d 1107, 1121 (Fed. Cir. 1985) (enbanc) (citations
omitted).
Though understanding the claim language may be aided by the
explanations contained in the written description, it is important
not to import into a claim limitations that are not a part of the
claim. For example, a particular embodiment appearing in the
written description may not be read into a claim when the claim
language is broader than the embodiment.
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SuperGuide Corp. v. DirecTV Enters, Inc., 358 F.3d 870, 875 (Fed. Cir.
2004) (citing Electro Med. Sys. S.A. v. Cooper Life Sci., Inc., 34 F.3d 1048,
1054 (Fed. Cir. 1994)). “[Although the specification often describes very
specific embodiments of the invention, we have repeatedly warned against
confining the claims to those embodiments. . . . [Cjlaims may embrace
‘different subject matter than is illustrated in the specific embodiments in the
specification.’” Phillips v. AWHCorp., 415 F.3d 1303, 1323 (Fed. Cir.
2005) (en banc) (citations omitted).
Applying the above case law, we decline to read limitations regarding
encryption and decryption into the claims from the Specification into the
claims. Such a construction is consistent with the cases cited by Appellant.
See App. Br. 12—13. In Golight, Inc. v. Wal-Mart Stores, Inc., the Federal
Circuit rejected Walmarf s argument that claim 11 should be limited “to
horizontal rotation through 360°” just because that advantage was discussed
in the written description. 355 F.3d 1327, 1331 (Fed. Cir. 2004). Similarly,
the Federal Circuit recognized in E—Pass Techs., Inc. v. 3Com Corp. that
“[a]n invention may possess a number of advantages or purposes, and there
is no requirement that every claim directed to that invention be limited to
encompass all of them.” 343 F.3d 1364, 1370 (Fed. Cir. 2003). In doing so,
the Federal Circuit found that the district court erred by adding limitations
from the specification into the claims. Id.
Because Appellant’s argument is not commensurate with the scope of
the claims, we are not persuaded that the Examiner erred. See In re Self, 671
F.2d 1344, 1348 (CCPA 1982).
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Third, Appellant contends that a person of ordinary skill in the art
“would not have believed that specific combination to have had a reasonable
expectation of success.” App. Br. 13.
However, Appellant’s contention does not persuade us that the
Examiner erred. Specifically, Appellant merely avers that there is no
reasonable expectation of success without providing any reasoning. Such a
naked assertion, without any evidence, is not persuasive. It is well settled
that mere attorney arguments and conclusory statements, which are
unsupported by factual evidence, are entitled to little probative value. In re
Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); see also In re Pearson, 494
F.2d 1399, 1405 (CCPA 1974) (attorney argument is not evidence).
Moreover, in the Answer, the Examiner makes a specific finding as to
why a person of ordinary skill in the art would have a reasonable expectation
of success. Ans. 33—34. Because Appellant did not address that finding, we
“will not. . . unilaterally review [that] uncontested aspect[] of the rejection.”
Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential).
Fourth, Appellant states that “the proposed combination would likely
be unsatisfactory for its intended purpose, or at least would require changing
the principle of operation of at least one of the references.” App. Br. 13; see
also Reply Br. 4.
We are not persuaded that Appellant has established that the proposed
change would result in such a change in the principle of operation of the
prior art as to make the claimed invention nonobvious. If a proposed
modification would render the prior art invention being modified
unsatisfactory for its intended purpose, then there is no suggestion or
motivation to make the proposed modification. In re Gordon, 733 F.2d 900,
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902 (Fed. Cir.1984). For example, our reviewing Court held that an
invention was not obvious where the prior art taught the device required
rigidity for operation whereas the claimed invention required resiliency. In
re Ratti, 270 F.2d 810, 813 (CCPA 1959). However, as our reviewing court
has explained, the proposition set forth in Ratti is inapplicable where the
modified apparatus will operate “on the same principles as before.” See
Mouttet, 686 F.3d at 1332 (citing In re Umbarger, 407 F.2d 425, 430—31
(CCPA 1969)).
We do not find the modification proposed by the Examiner to be one
that would change the principle of operation of the references. Appellant
provides no evidence in support of their argument. App. Br. 13; Reply Br. 4.
“Attorney’s argument in a brief cannot take the place of evidence.”
Pearson, 494 F.2d at 1405.
Fifth, Appellant argues neither Jones nor Jost teaches combining
“based at least on the first has values and the second has values,” as recited
in claim 1. App. Br. 13—14. Specifically, Appellant argues:
Jost fails to teach or suggest computing first hash values
as a function of first data segments from a first data stream or
computing second hash values as a function of second data
segments from a second data stream, much less combining first
data segments and second data segments based at least in part
on first hash values and second hash values. As discussed
above, Jones fails to teach combining first data segments from a
first data stream and second data segments from a second data
stream, much less doing so based at least in part on first hash
values and second hash values. To the extent that Jones teaches
the use of hash values, there is no teaching or suggestion that
use of hash values in lieu of the techniques taught at Jost at,
e.g., paragraphs [0027] and [0028] would be beneficial. In
other words, there is no proffered motivation for the proposed
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modification of Jost, much less a reasonable expectation of
success.
Id. at 14; see also Reply Br. 4 (alleging no motivation for modification).
Because Appellant addresses the references individually and does not
address the combined teachings as found by the Examiner, we are not
persuaded that the Examiner erred. For example, the Examiner finds Jones,
not Jost, teaches hash values. See Final Act. 11. It is therefore not
persuasive for Appellant to point out Jost does not teach them. See App. Br.
14.
Appellant’s argument about a lack of motivation for the combination
is also not persuasive. Contrary to Appellant’s statement, the Examiner
finds that a person of ordinary skill in the art would have “incorporate[d] the
feature of combining a plurality of identical streams from different sources,
as taught by Jones, into Jost, in order to reduce network load.” Final Act.
11. Thus, contrary to Appellant’s argument, the Examiner made a finding
on the reason to combine the teachings of the Jones and Jost. Appellant has
not explained how that finding was erroneous.
Sixth, Appellant argues in the Reply Brief that “Jones does not teach
or suggest calculating hash values for the entirety of packets to be
compared.” Reply Br. 4; see also Id. at 4—5 (citing Jones 3:18—53).
However, because Appellant did not raise that argument in his opening brief
and good cause has not been shown why it should be considered, we will not
consider this argument. 37 C.F.R. §41.41(b)(2); Ex parte Borden, 93
USPQ2d 1473, 1474 (BPAI 2010) (Informative) (“[T]he reply brief [is not]
an opportunity to make arguments that could have been made in the
principal brief on appeal to rebut the Examiner’s rejections, but were not.”).
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Accordingly, we sustain the Examiner’s rejection of claim 1, along
with the rejections of claim 15 and 26—28, which are argued on the same
grounds, and dependent claims 2—10, 19, 31, and 32, which are not
separately argued. See App. Br. 14—15.
Claims 33 and 34
Appellant argues Jones teaches away from the additional limitation of
claim 33 “by instead teaching at column 3, lines 61-64, that ‘the router 16
stores the modified checksum values tor a subset/window of packets
(possibly five or ten packets) from data stream in memory (e.g., a per
destination list 42, 44) as shown in FIG. 43” App. Br. 15 (emphasis
omitted).
We find Appellant has not established that the prior art teaches away
from the claimed invention because Appellant has not demonstrated that “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.” Gurley,
27 F.3d at 553. The passage, which discusses a preferred embodiment,
“does not teach away. . . [as] it merely expresses a general preference for an
alternative invention but does not ‘criticize, discredit, or otherwise
discourage’ investigation into the invention claimed.” DePuy, 567 F.3d at
1327 (quoting Fulton, 391 F.3d at 1201). To the contrary, as the Examiner
finds, the teaching in Jones is similar to the teaching in the Specification.
See Ans. 36. Appellant does not argue in the Reply Brief that the
Examiner’s finding is incorrect.
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Moreover, the Examiner finds Jones teaches the additional limitations
at column 2, line 59 through column 3, line 15. Final Act. 21; see also Ans.
35—36 (citing Jones 4:1—15). Appellant does not address the cited section or
provide any argument as to how the Examiner’s finding is not supported by
the reference. See App. Br. 15. Therefore, we are not persuaded by
Appellant’s argument that the Examiner erred.
Accordingly, we sustain the Examiner’s rejection of claim 33, along
with claim 34, which is not separately argued. See id.
Claim 11
Appellant argues because Pereira does not cure the deficiencies of Jost
and Jones with respect to claim 1, the Examiner erred in rejecting dependent
claim 11. Id. However, because, as discussed above, there are no
deficiencies associated with the Examiner’s findings regarding claim 1, there
was nothing for Pereira to cure.
Appellant further argues Pereira teaches away from the combining
step recited in claim 1. Id. at 15—16. More specifically, Appellant argues:
Pereira[] at paragraph [0053] teaches away from computing and
comparing hash values as recited in claim 1 by instead
suggesting “examining the first TS packet for each received
UDP packet of a primary stream, e.g., the first stream 615 from
the first input stream buffer 601, and comparing the PID and
continuity_counter against the equivalent PID and
continuity_counter of the redundant stream(s ), e.g., the second
stream 616 from the second input stream buffer 602.” Compare
Jost at paragraphs [0027] and [0028]. The Federal Circuit has
held that “prior art taught away from one solution because all
prior art taught a different solution.” Pozen Inc. v. Par Pharm.,
Inc., 696 F.3d 1151, 1165 (Fed. Cir. 2012), citing Spectralytics
Inc. v. Cordis Corp., 649 F.3d 1336, 1343 (Fed. Cir. 2011).
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App. Br. 16.
We are not persuaded by Appellant’s argument that Pereira teaches
away. Although Pereira suggests a different way, that is not the same as
teaching away. Instead, as discussed above, teaching away requires the
reference to ‘“criticize, discredit, or otherwise discourage’ investigation into
the invention claimed.” DePuy, 567 F.3d at 1327 (quoting Fulton, 391 F.3d
at 1201). The cited sections does not do that.
Nor are we persuaded by Appellant’s citation to Pozen and
Spectralytics. In Spectralytics, the patent owner provided substantial
evidence that “all prior art machines” improved accuracy using a specific
method, in that case dampening vibrations. 549 F.3d at 1343. In this case,
Appellant has not offered evidence showing that all of the prior art used a
specific method. Therefore, the cases in applicable to the present record.
Accordingly, we sustain the Examiner’s rejection of claim 11.
Claims 12—14, 24, and 25
Appellant argues because Moon does not cure the deficiencies of Jost
and Jones with respect to claim 1, the Examiner erred in rejecting dependent
claim 12. App. Br. 17. However, because, as discussed above, there are no
deficiencies associated with the Examiner’s findings regarding claim 1, there
was nothing for Moon to cure.
Appellant further contends that Jost, Jones, and Moon fail to teach
several claim limitations recited in claim 12:
Jost fails to teach or suggest computing third hash values
as a function of third data segments. Jones fails to teach
combining first and second data segments from the
first and second data streams, respectively, and third data
segments from the third data stream to generate a single,
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uninterrupted output data stream having a reduced likelihood of
at least one of overlapping, missing and corrupt data segments,
much less doing so based at least in part on the first hash
values, the second hash values and the third hash values as
recited in amended claims 12 and 24.
Moon fails to remedy these deficiencies of Jost and Jones
with respect to claims 12 and 24, as it also fails to teach or
suggest combining the first and second data segments from the
first and second data streams, respectively, and third data
segments from the third data stream based at least in part on the
first hash values, the second hash values and the third hash
values to generate a single, uninterrupted output data stream
having a reduced likelihood of at least one of overlapping,
missing and corrupt data segments.
Id.
Appellant merely quotes or summarizes the claim language, quotes or
summarizes sections of the Specification and prior art, and makes a naked
assertion that the prior art does not teach the limitation. That is insufficient
to raise an argument that the Examiner erred. See In re Lovin, 652 F.3d
1349, 1357 (Fed. Cir. 2011) (Rule 41.37 requires “more substantive
arguments in an appeal brief than a mere recitation of the claim elements and
a naked assertion that the corresponding elements were not found in the
prior art.”); see also 37 C.F.R. § 41.37(c)(l)(iv) (“A statement which merely
points out what a claim recites will not be considered an argument for
separate patentability of the claim.”); cf. In re Baxter Travenol Labs., 952
F.2d 388, 391 (Fed. Cir. 1991) (“It is not the function of this court to
examine the claims in greater detail than argued by an appellant, looking for
[patentable] distinctions over the prior art.”). Moreover, to the extent that
Appellant makes an argument, it is directed to the references individually
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and not to the combined teachings as relied on by the Examiner. See Merck,
800 F.2d at 1097; Keller, 642 F.2d at 425. According, Appellant fails to
provide sufficient, persuasive argument or evidence regarding the specific
deficiency of references with respect to the disputed limitation of claim 12.
Therefore, we sustain the Examiner’s rejection of claim 12, along with
the rejection of claim 24, which is argued on the same grounds, and claims
13, 14, and 25, which are not separately argued.
Claim 35
Appellant argues claim 35 is patentable based on its dependency from
claims 1 and 12. App. Br. 18. Because we affirm the Examiner’s rejections
of claims 1 and 12, we are similarly not persuaded by Appellant’s argument
the Examiner erred in rejecting claim 35.
Appellant also argues the Examiner erred in finding the prior art
teaches the additional limitations recited in claim 35 because the Examiner
makes findings directed to a comparison of the data segments and the hash
values associated with the data segments. Id. at 18—19. Specifically,
Appellant argues “the Examiner mischaracterizes these limitations as being
identical to those of claim 14, for example, ‘when the given one of the first
data segments matches the corresponding one of the second data segments
and the corresponding one of the third data segments.’”
We are not persuaded by Appellant’s argument because it takes the
Examiner’s finding out of context. That is, although Appellant accurately
quotes part of the Examiner’s finding, Appellant does not address other
portions that specifically refers to comparing hash values:
comparing the first, second and third (Moon: “more than
two,” Col. 20, lines 34-47) hash values corresponding to the
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first, second and third data segments (Jones: Col. 3, lines 54—
67; Jost: Fig. 5, Step 515), respectively, to determining whether
there is a match between a given one of the first data segments
and a corresponding one of the second and third data segments
as a function of a comparison of hash values (Jones: Col. 3, line
54 - Col. 3, line 31) corresponding to the first, second and third
data segments (Jost: Fig. 5, Step 515).
Final Act. 24. Moreover to the extent Appellant focuses solely on the
teachings in a reference that does not use hash values, Appellant is arguing
unpersuasively the references individually. See Merck, 800 F.2d at 1097;
Keller, 642 F.2d at 425.
Accordingly, we sustain the Examiner’s rejection of claim 35.
Claims 29, 3 0
Appellant argues that “the proposed combination of Jost with Jones
and Deiss would have rendered Jost inoperable for its intended purpose, or at
least would have required a change in the basic principles under which Jost
was designed to operate.” App. Br. 19. More specifically, Appellant argues
that “claim 29 recites performing additional processing in the second
network path relative to the first network path thereby delaying the received
second data stream relative to the received first data stream” but “Jost
expressly states in paragraph [0015] that ‘[a]ny processing of the video
content resulting in differences between the primary and redundant video
feeds makes this scheme unworkable, so transcoding, encryption, etc. is
precluded between the video source and the edge device.’” Id.
The Examiner finds that the “processing delay would not result [in] a
difference that would make the disclosed scheme of Jost unworkable.” Ans.
43. More specifically, the Examiner finds “Jost goes on to disclose in detail
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how to adjust for delay and jitter” and, as a result, “Jost is capable of
adjusting for delay and jitter introduced into the streams. Thus, introducing
a delay into a stream, as taught by Deiss, would not render Jost inoperable
for its intended purpose or require a change in the basic principles under
which Jost was designed to operate.” Id. (citing Jost || 15, 17).
We are not persuaded by Appellant’s argument that the Examiner
erred. First, although Appellant quotes a paragraph from Jost, it offers no
further evidence in support of its argument. App. Br. 19; Reply Br. 7—8.
“Attorney’s argument in a brief cannot take the place of evidence.”
Pearson, 494 F.2d at 1405. Second, besides “respectfully disagree[ing]”
with the Examiner, Appellant does not offer any evidence or argument
demonstrating that the Examiner’s finding in the Answer was erroneous.
Accordingly, we sustain the Examiner’s rejection of claim 29, along
with the rejection of claim 30, which is not argued separately.
DECISION
For the above reasons, we affirm the Examiner’s decisions rejecting
claims 1—15, 19, and 24—35.
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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