Ex Parte Stahl et al

Patent Trial and Appeal Board

Mar 27, 2017

13467747 (P.T.A.B. Mar. 27, 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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/467,747 05/09/2012 Thomas Anthony Stahl PU010175US CONT2 2328
24498 7590 03/29/2017
Robert D. Shedd, Patent Operations
THOMSON Licensing LLC
4 Research Way
3rd Floor
Princeton, NJ 08543
EXAMINER
HICKS, CHARLES N
ART UNIT PAPER NUMBER
2424
NOTIFICATION DATE DELIVERY MODE
03/29/2017 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):
uspto@technicolor.com
pat. verlangieri @ technicolor.com
russell. smith @ technicolor.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte THOMAS ANTHONY STAHL and
JOHN WILLIAM RICHARDSON
Appeal 2017-000040
Application 13/467,7471
Technology Center 2400
Before LARRY J. HUME, LINZY T. McCARTNEY, and JOYCE CRAIG,
Administrative Patent Judges.
HUME, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) of the Final
Rejection of claims 17-40. Appellants have canceled claims 1—16. We
have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 According to Appellants, the real party in interest is Thomson. App. Br. 2.
Appeal 2017-000040
Application 13/467,747
STATEMENT OF THE CASE2
The Invention
Appellants' disclosed and claimed inventions "relate[] to the
downloading of streaming content." Spec. 1,1. 5.
Exemplary Claim
Claim 17, reproduced below, is representative of the subject matter on
appeal (emphasis and formatting added):
17. A method of providing content comprising:
receiving a command at a head-end or a server after one
or more of a channel having been turned on or channels having
been changed;
sending, from a buffer at the head-end or the server, to a
customer-side, and at a rate substantially greater than a
streaming content playback rate, a first content stream on a first
connection carrying a content channel signal,
the first connection being a point-to-point connection and
said first content stream is only sent to said customer side
during a transitory period when said sending operation is
taking place', and
sending, from the head-end or the server, to the
customer-side, a second content stream on a second connection
carrying the content channel signal,
wherein the second connection is one of multicast,
broadcast, and asynchronous-transfer mode point-multipoint,
and the second content stream is sent substantially at the
playback rate,
2 Our decision relies upon Appellants' Appeal Brief ("App. Br.," filed
Mar. 3, 2016); Reply Brief ("Reply Br.," filed Sept. 19, 2016); Examiner's
Answer ("Ans.," mailed July 19, 2016); Final Office Action ("Final Act.,"
mailed Sept. 3, 2015); and the original Specification ("Spec.," filed
May 9, 2012).
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Application 13/467,747
wherein said second content stream is sent from the head-
end, or the server, to the customer-side after the head-end, or
the server, sends to the customer-side from the first content
stream a predefined amount of channel content data,
the predefined amount of channel content data
corresponding to an amount of data for overcoming jitter during
a playback of the content channel signal.
Prior Art
The Examiner relies upon the following prior art as evidence in
rejecting the claims on appeal:
Son et al. ("Son") US 2002/0026645 A1 Feb. 28, 2002
Hofmann US 6,757,796 B1 June 29,2004
Rejections on Appeal
Claims 17-40 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Son and Hofmann. Ans. 3; Final
Act. 3.
CFA1M GROUPING
Based on Appellant's arguments (App. Br. 6—7), we decide the appeal
of the obviousness rejection of claims 17-40 on the basis of representative
claim 17.
ISSUE
Appellants argue (App. Br. 6—7; Reply Br. 5—8) the Examiner's
rejection of claim 1 under 35 U.S.C. § 103(a) as being obvious over the
combination of Son and Hofmann is in error. These contentions present us
with the following issue:
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Application 13/467,747
Did the Examiner err in finding the cited prior art combination teaches
or suggests a method of providing content that includes, inter alia, the steps
of:
sending, from a buffer at the head-end or the server ... a
first content stream on a first connection carrying a content
channel signal,
the first connection being a point-to-point connection and
said first content stream is only sent to said customer side
during a transitory period when said sending operation is taking
place; and
sending, from the head-end or the server, to the
customer-side, a second content stream on a second connection
carrying the content channel signal,
wherein the second connection is one of multicast,
broadcast, and asynchronous-transfer mode point-multipoint,
as recited in claim 1?
ANALYSIS
In reaching this decision, we consider all evidence presented and all
arguments actually made by Appellants. We do not consider arguments that
Appellants could have made but chose not to make in the Briefs, and we
deem any such arguments waived. 37 C.F.R. § 41.37(c)(l)(iv).
We disagree with Appellants' arguments with respect to claims 17-40,
and we incorporate herein and adopt as our own: (1) the findings and
reasons set forth by the Examiner in the action from which this appeal is
taken, and (2) the reasons and rebuttals set forth in the Examiner's Answer in
response to Appellants' arguments. We incorporate such findings, reasons,
and rebuttals herein by reference unless otherwise noted. However, we
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highlight and address specific findings and arguments regarding claim 17 for
emphasis as follows.
Analysis
Appellants first contend:
[t]he combination of references do not teach the specifics of
what type of connections are used between the first and second
connections unlike what is claimed in Claim 17.... the claim
element of "said first content stream is only sent to said
customer side during a transitory period when said sending
operation is taking place" is not disclosed or suggested in the
cited prior art.
App. Br. 6.
Appellants further contend in the Reply Brief that Hofmann does not
teach or suggest a second connection that is multicast. Reply Br. 5.
Appellants allege the Examiner's interpretation of column 8 of Hofmann is
incorrect because
Hofmann does not describe or suggest that "the second
connection is one of multicast, broadcast, and asynchronous-
transfer-mode point-multipoint" (claim 17). It is important to
bear in mind that the claim requires that the first connection and
the second connection are both from the "head-end" to a
"customer side", and that "the second connection is one of
multicast, broadcast, and asynchronous-transfer-mode point-
multipoint" (claim 17). In contrast, Hofmann merely describes a
second connection that is unicast.
Id.
According to Appellants, Hofmann's helper server (HS) receives, from
a content server, a broadcast signal, and stores the most recent broadcast
signal packets in a Playout History (PH) buffer. The HS then sends the
contents of the PH buffer to a client at a higher data rate than the rate at
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which the content server sends data to the HS, at least until the PH buffer is
empty. Reply Br. 6 (citing Hofmann, col. 7,11. 41—53). "When the PH
buffer is empty, successive packets from the received signal are 'transmitted
from the HS to the client at the content server rate.'" Id. (citing Hofmann,
col. 8,11. 10-12).
Appellants allege:
[T]he only way that Hofmann can be applied to claim 17 is if
the recited "head-end" is the HS of Hoffman, and the recited
"customer side" is the client of Hofmann. It is also clear that the
HS does indeed establish two connections to the client. The first
connection is a point-to-point connection from the PH buffer of
the HS to the client, at higher data rate than the rate at which
data is received at the HS from the content server. However, the
second connection is also a point-to-point connection, and is at
a (slower) content server rate ....
The first point is that the second connection is not a
broadcast signal. Only the content server is described in
Hofmann as broadcasting a signal [and t]he HS "transmit[s]"
(Hofmann at col. 8, line 11 ), "forwards" (Hofmann at col. 6,
line 14), or "streams" (Hofmann at col. 2, lines 39-40 and col.
10, line 28) the received broadcast signal to the client, but does
not re-broadcast the signal. The signal transmitted by the HS
may be characterized as having the data from the content
server's broadcast signal. However, the signal transmitted by
the HS is not itself a broadcast signal.
Reply Br. 6—7.
We note that Appellants, in the Reply Brief, present new arguments
asserting the combination of references do not teach or suggest the contested
limitations, as quoted above. These arguments are deemed waived.
Appellants have not explained why, nor is it apparent that these arguments
were necessitated by a new point in the Answer or any other circumstance
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constituting "good cause" for its belated presentation. See Ex parte Borden,
93 USPQ2d 1473, 1473—74 (BPAI 2010) ("informative") (absent a showing
of good cause, the Board is not required to address argument in Reply Brief
that could have been presented in the principal Brief).
Assuming, arguendo, our reviewing court were to find Appellants'
arguments in the Reply Brief timely, we first note the claim does not limit
the first and second connections to only be from the recited "head-end" as
argued by Appellants above. Instead, the claim uses alternative language,
i.e., "sending, from a buffer at the head-end or the server ... a first content
stream," and "sending, from the head-end or the server ... a second content
stream on a second connection." Claim 1 (emphasis added). Under the
broadest reasonable interpretation, we find the recited "or server" reads on
Hofmann's helper server 56.3
We also find, in agreement with the Examiner, "[w]hen the second
client device exhausts the buffered content, it switches to receive the
broadcast content, which is a multicast connection receiving content at the
regular playing speed." Ans. 17 (emphasis added).
We agree with the Examiner's finding that data packets 59a—59i can
be interpreted as a "broadcast" because:
the exemplary illustration of [Hofmann] FIG. 5a assumes that
the PH buffer B 58 was allocated at a configuration stage to
service a 'popular' live SM broadcast. FIG. 5a shows data
packets 59a—59/, which make up a portion of a 'popular' live
3 "In the patentability context, claims are to be given their broadest
reasonable interpretations . . . limitations are not to be read into the claims
from the specification." In re Van Geuns, 988 F.2d 1181, 1184 (Fed.
Cir. 1993) (citations omitted).
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[streaming multimedia] SM broadcast, being streamed from the
content server 51 to the HS 56
(Hofmann, col. 7,11. 41—44 (emphasis added)), and Figure 5b teaches
[I]f a second client 54 makes a second request 52 for the same
non-popular live SM object while the nonconfigured PH buffer
is still maintained, the nonconfigured PH buffer is available to
service this second request 52 affording the second requesting
client a data rate advantage associated with being able to
receive the playout history of the nonconfigured PH buffer
created in response to the first request 53. This case is
illustrated by the more closely spaced directional arrows (i.e.,
data packets 59a—59/) directed from HS 56 to the second
requesting client 54. Once the PH buffer has been depleted, the
subsequent data packets 59g, 59h, 59i . . . , etc. will be
distributed to the second requesting client 54 at the content
server rate, similar to the case described above with reference to
FIG. 5a.
Hofmann, col. 8,11. 52—65.
We note Appellants have not cited to a definition of "broadcast" in the
Specification that would preclude the Examiner's broader reading.4
Therefore, based upon the findings above, on this record, we are not
persuaded of error in the Examiner's reliance on the combined teachings and
suggestions of the cited prior art combination to teach or suggest the
disputed limitation of claim 17, nor do we find error in the Examiner's
4 Any special meaning assigned to a term "must be sufficiently clear in the
specification that any departure from common usage would be so understood
by a person of experience in the field of the invention." Multiform
Desiccants Inc. v. Medzam Ltd., 133 F.3d 1473, 1477 (Fed. Cir. 1998); see
also Helmsderfer v. Bobrick Washroom Equip., Inc., 527 F.3d 1379, 1381
(Fed. Cir. 2008) ("A patentee may act as its own lexicographer and assign to
a term a unique definition that is different from its ordinary and customary
meaning; however, a patentee must clearly express that intent in the written
description.").
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resulting legal conclusion of obviousness. Therefore, we sustain the
Examiner's obviousness rejection of independent claim 17, and grouped
claims 18-40 which fall therewith. See Claim Grouping, supra.
REPLY BRIEF
To the extent Appellants may advance new arguments in the Reply
Brief (Reply Br. 5—8) not in response to a shift in the Examiner's position in
the Answer, we note arguments raised in a Reply Brief that were not raised
in the Appeal Brief or are not responsive to arguments raised in the
Examiner’s Answer will not be considered except for good cause (see 37
C.F.R. § 41.41(b)(2)), which Appellants have not shown.
CONCLUSION
The Examiner did not err with respect to the obviousness rejection of
claims 17-40 under 35 U.S.C. § 103(a) over the cited prior art combination
of record, and we sustain the rejection.
DECISION
We affirm the Examiner's decision rejecting claims 17—40.
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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