Ex Parte Shen et al

Board of Patent Appeals and Interferences

Mar 29, 2011

10687997 (B.P.A.I. Mar. 29, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte BO SHEN, SONGQING CHEN, YONG YAN, and SUJOY BASU
____________________

Appeal 2009-006673
Application 10/687,9971
Technology Center 2400
____________________

Before JAY P. LUCAS, JOHN A. JEFFERY, and JAMES R. HUGHES,
Administrative Patent Judges.

HUGHES, Administrative Patent Judge.

DECISION ON APPEAL2

1 Application filed October 17, 2003. The real party in interest is Hewlett-
Packard Development Co. (App. Br. 2.)
2 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.
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STATEMENT OF THE CASE
Appellants appeal from the Examiner’s rejection of claims 1-7 and 9-
14 under authority of 35 U.S.C. § 134(a). Claims 8 and 15 have been found
to contain allowable subject matter. The Board of Patent Appeals and
Interferences (BPAI) has jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Appellants’ Invention
The invention at issue on appeal relates to an apparatus (proxy server)
and method for delivering content objects (e.g., video) over a network from
servers to clients utilizing a caching system based on shared running buffers.
A proxy server (proxy) having multiple running (moving-window) buffers
services content requests to a content server (server) from various clients.
The server delivers a first request for content through the proxy to a
requesting client, and the content is simultaneously duplicated to a first
circulating buffer that holds a moving window of the content – the buffer
continuously adds new content and deletes the oldest (earliest) content.
When the proxy receives a second request for the same content, it
determines if the first buffer holds the beginning of the requested content,
and if so, delivers the content to the second requesting client. Otherwise, the
proxy opens a second buffer and services the request using both buffers to
deliver the portions of the requested content they contain. The proxy may
open multiple additional buffers depending on the size of the content, the
size of the buffers, and the respective timing of requests. (Spec. 1:8-11;
3:15-32.)3

3 We refer to Appellants’ Specification (“Spec.”); Appeal Brief (“App. Br.”)
filed May 23, 2008; and Reply Brief (“Reply Br.”) filed September 24,
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Representative Claims
Independent claims 1 and 2 further illustrate the invention, and are
reproduced below with the key disputed limitations emphasized:
1. A network proxy server comprising:
a network connection configured to receive content-
object requests generated by a plurality of clients, said content-
object requests requesting a content-object from a server;
a plurality of moving-window buffers coupled with said
network connection, said plurality of moving-window buffers
being configured to service said content-object requests; and
first and second content buffers coupled with said
network connection, said first content buffer being configured
to duplicate a first portion of a content passing from said server
to said plurality of clients, cache said first portion, and provide
said first portion to a subsequent client in response to a request
for said first portion, and said second content buffer being
configured to duplicate a second portion of said content and
cache said second portion, and wherein said first and second
content buffers are further configured to simultaneously provide
said first and second portions of said content to said subsequent
client in response to a request for said first and second portions.

2. A method of delivering objects from servers to clients,
said method comprising:
receiving a first request for a content object from a first
client;
allocating a first running buffer;
retrieving the content object as a datastream having a
start point and inserting the datastream into the first running
buffer while delivering the datastream to the first client;

2008. We also refer to the Examiner’s Answer (“Ans.”) mailed July 24,
2008.
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when the first running buffer is filled, deleting data from
the start point of the datastream while continuing to insert
retrieved data into the first running buffer so that the first
running buffer contains a moving window of the retrieved data;
receiving a second request for the content object from a
second client;
if the second request is received while the start point of
the datastream is still in the first running buffer, serving the
content object directly from the first running buffer; and
if the second request is received after the start point has
been deleted from the first running buffer, retrieving a portion
of the content object that has been deleted from the first running
buffer, commencing from the start point, and delivering the
datastream while simultaneously delivering a different part of
the content object from the first running buffer.

Reference
The Examiner relies on the following reference as evidence in support
of the rejection:
Vahalia US 5,933,603 Aug. 3, 1999

Rejection on Appeal
The Examiner rejects claims 1-7 and 9-14 under 35 U.S.C. § 102(b) as
being anticipated by Vahalia.

ISSUES
Based on our review of the administrative record, Appellants’
contentions, and the Examiner’s findings and conclusions, the pivotal issues
before us are as follows:
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1. Does the Examiner err in finding Vahalia discloses “a plurality
of moving-window buffers . . . configured to service . . . content-object
requests,” and “first and second content buffers” as recited in Appellants’
claim 1?
2. Does the Examiner err in finding Vahalia discloses “retrieving
the content object as a datastream having a start point and inserting the
datastream into the first running buffer while delivering the datastream to the
first client” as recited in Appellants’ claim 2?

FINDINGS OF FACT (FF)
We adopt the Examiner’s findings in the Answer and Final Office
Action as our own, except as to those findings that we expressly overturn or
set aside in the Analysis that follows. We also add the following factual
findings:
Appellants’ Specification
1. Appellants do not explicitly define a “moving-window” buffer,
but describe “moving-window” buffers synonymously with “running”
buffers. (Spec. 1, ll. 10-11; 2, ll. 30-32; 11, l. 28-12, l. 3.) For example,
Appellants explain that “[a] running buffer is used to store a sliding window
of an on-going streaming session in the memory of the proxy” (Spec. 2, ll.
30-32); and “[a]n initial running buffer of a predetermined size is allocated
to store a first amount of data from the content object. . . . [and] [t]he buffer
contains a moving window of the retrieved data” (Spec. 11, l. 28-12, l. 3).
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Vahalia Reference
2. Vahalia, in relevant part, describes video file server (content
server) (element 20) including an integrated cached disk array (element 23)
containing the content, and a cluster of stream servers (element 21) acting as
a front end to the array. The random-access memory (RAM) in the stream
servers “provides a large capacity cache memory for video applications”
(col. 5, ll. 27-28). (Col. 5, ll. 5-57; Figs. 1, 2.) The data stored
(cached/buffered) in the RAM of the stream server provides “a sliding
‘window’ into the movie” –“[n]ew data are added to each window, and old
data are removed . . . at the rate at which data are delivered to the network
clients.” (Col. 23, ll. 2-5.)
3. Vahalia also describes a process for servicing client content
(video/movie) requests. (Col. 23, l. 1 to col. 24, l. 63; Figs. 16, 17.)
Vahalia’s system “checks whether the desired starting time or position in the
movie of [a] new request falls in the RAM window of the requested movie
[stored] in the . . . stream server.” (Col. 24, ll. 6-8.) If the request falls
within one of the RAM windows of the stream servers, and if the stream
server “has sufficient resources to handle the client request,” (col. 24, ll. 26-
27) then the system accepts the request and assigns it to the particular stream
server. (Col. 24, ll. 8-29.) If the request does not fall within one of the
RAM windows of the stream servers storing the content (movie) of interest,
or if the particular indicated stream server does not have sufficient resources
to accommodate the request, then the system opens a new RAM window in
one of the streaming servers to service the request for the content (movie).
(Col. 24, ll. 30-63.)

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ANALYSIS
Appellants separately argue independent claims 1 (App. Br. 9-11) and
2 (App. Br. 11-15) with respect to the Examiner’s § 102 rejection of the
claims. Appellants do not separately argue independent claim 9, dependent
claims 3-7 (dependent on claim 2), nor dependent claims 10-14 (dependent
on claim 9). Therefore, we select independent claims 1 and 2 as
representative of Appellants’ arguments and groupings with respect to the
Examiner’s anticipation rejection. 37 C.F.R. § 41.37(c)(1)(vii). See In re
Nielson, 816 F.2d 1567, 1572 (Fed. Cir. 1987). We have considered only
those arguments that Appellants have actually raised in their Briefs.
Arguments that Appellants could have made but chose not to make in their
Briefs have not been considered and are deemed to be waived. See 37
C.F.R. § 41.37(c)(1)(vii).
Appellants have the opportunity on appeal to the Board of Patent
Appeals and Interferences (BPAI) to demonstrate error in the Examiner’s
position. See In re Kahn, 441 F.3d 977, 985-86 (Fed. Cir. 2006) (citing In re
Rouffet, 149 F.3d 1350, 1355 (Fed. Cir. 1998)). The Examiner sets forth a
detailed explanation of a reasoned conclusion of anticipation in the
Examiner’s Answer with respect to each of Appellants’ claims (Ans. 3-13),
and in particular claims 1 (Ans. 3-4, 10-12) and 2 (Ans. 4-5, 12-13).
Therefore, we look to the Appellants’ Briefs to show error in the proffered
reasoned conclusions. See Kahn, 441 F.3d at 985-86.
Arguments Concerning the Examiner’s Rejection of
Representative Claim 1 Under § 102
The Examiner rejects Appellants’ independent claim 1 as being
anticipated by Vahalia. (Ans. 3-4.) Specifically, the Examiner finds that
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Vahalia discloses “stream RAM servers” that the Examiner finds are
equivalent to Appellants’ recited “moving-window” buffers. (Ans. 3, 10-
12.) The Examiner also finds that Vahalia discloses first and second content
buffers. (Id.)
Appellants, on the other hand, contend that Vahalia “does not disclose
a proxy server comprising ‘a plurality of moving-window buffers’ or ‘a first
and second buffer’ [because]. . . . Vahalia [discloses] a system for utilizing
the RAM of a stream server as a single sliding window.” (App. Br. 11; see
App. Br. 10-11.)
We agree with the Examiner that Vahalia discloses the disputed
features – “moving-window buffers” and “first and second content buffers.”
Based on the record before us, we do not find error in the Examiner’s
anticipation rejection of Appellants’ claim 1, essentially for the reasons
espoused by the Examiner (Ans. 3-4, 10-12).
We find Vahalia describes stream servers each having RAM that
provides a sliding window of streamed content (a movie). (FF 2, 3.) We
find these stream server RAM windows are equivalent to Appellants’ recited
“moving-window” (running) buffers (FF 1) in that each of the multiple
RAM windows provide a sliding or moving window of streamed content.
(FF 1-3.)
We note that the labels for Appellants’ recited buffers – “moving-
window” and “first and second content” – merely constitute non-functional
descriptive material. How the buffer may be named or labeled does not
functionally change the buffer. The act of storing data in the buffers is the
same regardless of how the buffers may be named, and “does not lend
patentability to an otherwise unpatentable . . . product or process.” Ex parte
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Nehls, 88 USPQ2d 1883, 1889 (BPAI 2008) (precedential). See Ex parte
Curry, 84 USPQ2d 1272, 1274 (BPAI 2005) (informative), aff’d, No. 06-
1003 (Fed. Cir. June 12, 2006) (Rule 36) (“wellness-related” data in
databases and communicated on distributed network did not functionally
change either the data storage system or the communication system used in
the claimed method). See also In re Ngai, 367 F.3d 1336, 1339 (Fed. Cir.
2004); Nehls, 88 USPQ2d at 1887-90 (discussing non-functional descriptive
material). Also, the recited functionality of the buffers is merely a statement
of intended use of the buffers, which “usually will not limit the scope of the
claim because such statements usually do no more than define a context in
which the invention operates.” Boehringer Ingelheim Vetmedica, Inc. v.
Schering-Plough Corp., 320 F.3d 1339, 1345 (Fed. Cir. 2003). The claim
recites a proxy server comprising buffers – these are apparatuses, not
processes. Accordingly, if the prior art structure is capable of performing
the intended use, it meets the claim limitation. A claim containing a
“recitation with respect to the manner in which a claimed apparatus is
intended to be employed does not differentiate the claimed apparatus from a
prior art apparatus” if the prior art apparatus teaches all the structural
limitations of the claim. Ex parte Masham, 2 USPQ2d 1647, 1648 (BPAI
1987). Similarly, while features of an apparatus may be recited either
structurally or functionally, claims directed to an apparatus must be
distinguished from the prior art in terms of structure rather than function. In
re Schreiber, 128 F.3d 1473, 1477-78 (Fed. Cir. 1997). “[A]pparatus claims
cover what a device is, not what a device does.” Hewlett-Packard Co. v.
Bausch & Lomb Inc., 909 F.2d 1464, 1468 (Fed. Cir. 1990). Put simply,
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how an apparatus invention is used is not germane to whether it is
anticipated by the prior art.
Thus, we find that Vahalia anticipates Appellants’ representative
claim 1. We find Appellants’ contrary arguments – that Vahalia describes
reallocating stream server RAM to store a particular set of data, or
reallocating a request to a different stream server RAM window (App. Br.
10-11) – unpersuasive for reasons discussed by the Examiner (Ans. 10-12;
see FF 2, 3), and also because these arguments are not commensurate with
the scope of Appellants’ disputed claim limitations. Appellants’ claim does
not preclude reallocating buffers or reallocating requests to different buffers.
Therefore, we find that Appellants do not provide any persuasive evidence
or argument that Vahalia fails to disclose the disputed features.
Arguments Concerning the Examiner’s Rejection of
Representative Claim 2 Under § 102
The Examiner rejects Appellants’ independent claim 2 as being
anticipated by Vahalia. (Ans. 4-5.) Specifically, the Examiner finds that
Vahalia discloses “retrieving the content object as a datastream having a
start point and inserting the datastream into the first buffer while delivering
the same datastream to the first client” (Ans. 4 (citing Vahalia – col. 18, l. 24
to col. 19, l. 32); see Ans. 12-13.)
Appellants contend that Vahalia
does not disclose a proxy server comprising “retrieving the
content object as a datastream having a start point and inserting
the datastream into the first running buffer while delivering the
datastream to the first client” (emphasis added) as claimed.
[Because] . . . Vahalia [discloses] a system in which a RAM
window does not serve data to a client until it is filled.
Specifically, . . . Vahalia disclose[s] that “a set of RAM
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windows in the RAM 91, 92, 93, 94 of the stream server PCs
(21 in FIG. 2) are allocated and loaded with the data for each
popular movie before the client requests for the movie are
received, so that when a client request for the movie is received,
the client can be immediately supplied with a video stream
starting at any desired time or position in the movie” (emphasis
added; col. 24, line 64, through col. 25, line 4).
(App. Br. 14 (see App. Br. 12-15; Reply Br. 2-3).)
We agree with the Examiner that Vahalia discloses the disputed
features of claim 2. Based on the record before us, we do not find error in
the Examiner’s anticipation rejection of Appellants’ claim 2, essentially for
the reasons espoused by the Examiner (Ans. 4-5, 12).
We find Vahalia describes saving a portion of content (a movie) to a
streaming server RAM window and providing the cached portion of content
to a client in response to a client request (Ans. 12; FF 2, 3), which we find is
equivalent to Appellants’ disputed limitation – “retrieving the content object
as a datastream having a start point and inserting the datastream into the first
running buffer while delivering the datastream to the first client” – in that
each RAM window provides a “sliding window” of the content that is
streamed to the client (i.e., the window (RAM) receives new content and
deletes old content at the same rate it delivers content to the client). (Ans.
12; FF 2, 3.)
Thus, we find that Vahalia anticipates Appellants’ representative
claim 2. We find Appellants’ contrary arguments – that Vahalia describes
loading the RAM windows prior to receiving client requests (App. Br. 12-
14) – unavailing for reasons discussed by the Examiner (Ans. 12), and also
because theses arguments are not commensurate with the scope of
Appellants’ disputed claim limitations. Vahalia not only describes filling
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RAM windows prior to client requests, as pointed out by Appellants, but
also filling the window and delivering the client request at the same time.
(Ans. 12; FF 2, 3; Vahalia – col. 25, ll. 1-9, 30-36.) Appellants’ claim does
not specify any particular order or timing for the steps and, contrary to
Appellants’ assertions, does not preclude fulfilling a client request
from/through a buffer (RAM window). Therefore, we find that Appellants
do not provide any persuasive evidence or argument that Vahalia fails to
disclose the disputed features.
Appellants do not separately argue independent claim 9, nor
dependent claims 3-7 and 10-14 (supra). It follows that Appellants do not
persuade us of error in the Examiner’s anticipation rejection of claims 1-7
and 9-14, and we affirm the Examiner’s rejection of these claims.

CONCLUSION OF LAW
Appellants have not shown that the Examiner erred in rejecting claims
1-7 and 9-14 under 35 U.S.C. § 102(b).

DECISION
We affirm the Examiner’s rejection of claims 1-7 and 9-14 under 35
U.S.C. § 102(b).

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)(v).

AFFIRMED

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