Ex Parte Skelly

Patent Trial and Appeal Board

Sep 18, 2012

11510361 (P.T.A.B. Sep. 18, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte PAUL ANDREW SKELLY
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Appeal 2010-005927
Application 11/510,361
Technology Center 2400
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Before DEBRA K. STEPHENS, KALYAN K. DESHPANDE, and JUSTIN
BUSCH, Administrative Patent Judges.

DESHPANDE, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2010-005927
Application 11/510,361

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STATEMENT OF CASE1
The Appellant seeks review under 35 U.S.C. § 134(a) of a final
rejection of claims 1-23, the only claims pending in the application on
appeal. We have jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b).
We REVERSE.

The Appellant invented a measurement of video quality at customer
premises.
An understanding of the invention can be derived from a reading of
exemplary claim 1, which is reproduced below [some paragraphing added]:
1. A method, comprising:
providing a video signal to a set top box, the video signal
being provided by a head end and including a plurality of
channels;
providing an instruction to the set top box to record a
specified portion of the video signal to create a video sample,
the specified portion of the video signal being specified by the
instruction at least in part by a particular channel of the video
signal during a specified time period;
receiving the video sample from the set top box;
obtaining a reference video corresponding to the video
sample, the reference video being obtained from the head end;
and
comparing the video sample to the reference video.

REFERENCES
The Examiner relies on the following prior art:
Janko US 5,818,520 Oct. 6, 1998

1 Our decision will make reference to the Appellant’s Appeal Brief (“App.
Br.,” filed September 8, 2009) and Reply Brief (“Reply Br.,” filed February
5, 2010), and the Examiner’s Answer (“Ans.,” mailed December 9, 2009),
and Final Rejection (“Final Rej.,” mailed April 13, 2009).
Appeal 2010-005927
Application 11/510,361

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Chappell US 6,160,991 Dec. 12, 2000
Yang US 2006/0023067 A1 Feb. 2, 2006

REJECTIONS
Claims 1-3, 5-10, 12-19, and 21-23 stand rejected under 35 U.S.C.
§103(a) as being unpatentable over Yang and Chappell.
Claims 4, 11, and 20 stand rejected under 35 U.S.C. §103(a) as being
unpatentable over Yang, Chappell, and Janko.

ISSUE
The issue of whether the Examiner erred in rejecting claims 1-23 turns
on whether the combination of Yang and Chappell teach or suggest “the
specified portion of the video signal being specified by the instruction at
least in part by a particular channel of the video signal during a specified
time period.”

ANALYSIS
Claims 1-3, 5-10, 12-19, and 21-23 rejected under 35 U.S.C. §103(a) as
being unpatentable over Yang and Chappell
The Appellant first contends that the combination of Yang and
Chappell fails to teach or suggest “the specified portion of the video signal
being specified by the instruction at least in part by a particular channel of
the video signal during a specified time period,” as required by claim 1.
App. Br. 12-14 and Reply Br. 2-4. We agree with the Appellant. The
Examiner relies on Yang to describe “providing an instruction to the set top
box to record a specified portion of the video signal…” Ans. 4 (citing Yang
¶ 0016). The Examiner found that Yang fails to describe “the specified
Appeal 2010-005927
Application 11/510,361

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portion of the video signal being specified by the instruction at least in part
by a particular channel of the video signal during a specified time period,”
but finds that Chappell describes this limitation. Ans. 4-5.
However, we find no evidence in Chappell that describes the specified
portion of the video signal, which is recorded, is specified by the instruction
at least in part by a particular channel during a specified time period.
Chappell describes that a telemetry signal provides a list of frequencies to a
remote unit and the remote unit stores the measured signal levels at each
frequency to be used for future sweeps. Chappell 2:24-31, 3:1-6, and Fig. 5.
The Examiner asserts that “Chappell’s telemetry signals cause the test unit to
record video signal data at specified frequencies.” Ans. 12-13. As such,
Chappell describes that the instruction (signal) causes the device to record
video signal data at specified frequencies, not the portion of the video signal.
Ans. 12; Chappell 3:1-6.
The Examiner has not provided any further rationale to illustrate how
the use of telemetry signals and measured signal levels at different
frequencies describes “the specified portion of the video signal being
specified by the instruction at least in part by a particular channel of the
video signal during a specified time period.” Independent claims 8, 15, and
23 recite this same limitation and dependent claims 2-3, 5-7, 9-10, 12-14,
16-19, and 21-22 were not separately argued. As such, we do not sustain the
Examiner’s rejection of 1-3, 5-10, 12-19, and 21-23.
Since this issue is dispositive as to the rejections against these claims,
we need not reach the remaining arguments raised by the Appellant.

Appeal 2010-005927
Application 11/510,361

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Claims 4, 11, and 20 rejected under 35 U.S.C. §103(a) as being
unpatentable over Yang, Chappell, and Janko
Claims 4, 11, and 20 depend on independent claims 1, 8, and 15. The
Examiner has not shown Janko cures the deficiencies of Yang and Chappel,
taken alone or in proper combination. Therefore we do not sustain the
Examiner’s rejection of claims 4, 11, and 20 for the same reasons discussed
supra.

CONCLUSIONS
The Examiner erred in rejecting claims 1-3, 5-10, 12-19, and 21-23
under 35 U.S.C. §103(a) as being unpatentable over Yang and Chappell.
The Examiner erred in rejecting claims 4, 11, and 20 under 35 U.S.C.
§103(a) as being unpatentable over Yang, Chappell, and Janko.

DECISION
To summarize, our decision is as follows:
 The rejection of claims 1-3, 5-10, 12-19, and 21-23 under 35 U.S.C.
§103(a) as being unpatentable over Yang and Chappell is not
sustained.
 The rejection of claims 4, 11, and 20 under 35 U.S.C. §103(a) as
being unpatentable over Yang, Chappell, and Janko is not sustained.

REVERSED

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