Ex Parte Stahl et al

Board of Patent Appeals and Interferences

Oct 20, 2008

09950863 (B.P.A.I. Oct. 20, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte THOMAS ANTHONY STAHL
and JOHN WILLIAM RICHARDSON
____________________

Appeal 2008-2856
Application 09/950,8631
Technology Center 2600
____________________

Decided: October 20, 2008
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Before KENNETH W. HAIRSTON, MARC S. HOFF,
and KEVIN F. TURNER, Administrative Patent Judges.

HOFF, Administrative Patent Judge.

DECISION ON APPEAL

1 Application filed September 12, 2001. The real party in interest is Thomson
Licensing, S.A.
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2
STATEMENT OF CASE
Appellants appeal under 35 U.S.C. § 134 from a Final Rejection of
claims 1-4, 7-9, 11, 12, and 14-16. We have jurisdiction under 35 U.S.C.
§ 6(b).
We affirm.
Appellants’ invention relates to a system and method for providing
de-jittered streaming content while providing a substantially instantaneous
channel changing experience. A buffer receives a first content stream
carrying a content channel signal. The first content stream carries the
content channel signal at a rate substantially greater than the streaming
content playout rate. The buffer switches its reception of the content
channel signal from the first content stream to a second content stream,
which is at a rate substantially the same as the streaming content playout
rate. Generally, this switch occurs when some predefined threshold of the
content channel signal is buffered (Spec. 2).
Claim 1 is exemplary:
1. A method for transferring a digital signal comprising the steps of:

receiving, at a buffer, at a rate substantially greater than a streaming
content display rate and using a point-to-point connection, a first content
stream carrying a content channel signal; and

switching from the first content stream to a second content stream
carrying the content channel signal, wherein the second content stream is
transferred to the buffer substantially at the display rate using one of
multicast, broadcast, and asynchronous-transfer-mode point-multipoint,

wherein said switching step comprises the step of:

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determining that the buffer includes a predefined amount of channel
content data prior to switching, the pre-defined amount of channel content
data corresponding to an amount of data for overcoming jitter during a
playback of the content channel signal.

The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Goode US 5,781,227 Jul. 14, 1998
Hofmann US 6,757,796 B1 Jun. 29, 2004
Claims 1-4 and 7 stand rejected under 35 U.S.C. § 102(e) as being
anticipated by Hofmann.
Claims 8, 9, 11, 12, and 14-16 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Hofmann in view of Goode.
Rather than repeat the arguments of Appellants or the Examiner, we
make reference to the Appeal Brief (filed March 28, 2007), the Reply Brief
(filed September 7, 2007) and the Answer (mailed August 1, 2007) for their
respective details.

ISSUE
The principal issue in the appeal before us is whether the Examiner
erred in finding that Hofmann teaches that the second content stream is
transferred to the buffer substantially at the display rate, as independent
claims 1 and 7 require, or at the display rate, as independent claims 8, 15,
and 16 require.
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FINDINGS OF FACT
The following Findings of Fact (FF) are shown by a preponderance of
the evidence.
The Invention
1. According to Appellants, they have invented a system and
method for providing de-jittered streaming content while providing a
substantially instantaneous channel changing experience. Appellants’
invention is directed to transmitting digital video from a Head End (HE) to a
Set Top Box (STB) over a Digital Subscriber Line (DSL) connection (Spec.
1). A buffer receives a first content stream carrying a content channel
signal. The first content stream carries the content channel signal at a rate
substantially greater than the streaming content playout rate. The buffer
switches its reception of the content channel signal from the first content
stream to a second content stream, which is at a rate substantially the same
as the streaming content playout rate. Generally, this switch occurs when
some predefined threshold of the content channel signal is buffered (Spec.
2).
2. After data is supplied at the higher rate to fill the de-jitter
buffer, data is then supplied at the “normal viewing speed” (Spec. 5:23-25).
Hofmann
3. Hofmann teaches allocating a playout history (PH) buffer at a
helper server (HS) in response to a client request for a particular live
streaming media (SM) broadcast (col. 2, ll. 10-12).
4. As subsequent client requests are received at the HS for a live
SM broadcast which is currently being stored in a previously allocated PH
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buffer, each subsequent request can be serviced directly from the PH buffer,
thereby reducing startup latency (col. 2, ll. 14-19).
5. Hofmann teaches that the playout history is streamed from the
playout history (PH) buffer at a higher data rate than the data rates at which
data packets are received from the content server (col. 7, ll. 48-53; col. 8, ll.
57-61).
6. In describing step 84 of Figure 7, labeled “Keep Streaming
Received Live Data with Given Playback Rate; Maintain Playout History,”
Hofmann teaches that once the playout history buffer is depleted, subsequent
data packets which make up the requested streaming media (SM) broadcast
are streamed to the requesting client from the helper server (HS) at the
content server rate (col. 10, ll. 15-19).
Goode
7. Goode teaches a method and apparatus for masking the effects
of latency within an interactive information distribution system (col. 1, l. 67
– col. 2, l. 2).

PRINCIPLES OF LAW
“Anticipation of a claim requires a finding that the claim at issue
‘reads on’ a prior art reference.” Atlas Powder Co. v. IRECO, Inc., 190 F.3d
1342, 1346 (Fed. Cir. 1999) (quoting Titanium Metals Corp. v. Banner, 778
F.2d 775, 781 (Fed. Cir. 1985)).
Analysis of whether a claim is patentable over the prior art under 35
U.S.C. § 102 begins with a determination of the scope of the claim. We
determine the scope of the claims in patent applications not solely on the
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basis of the claim language, but upon giving claims their broadest reasonable
construction 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). The properly interpreted claim must then be
compared with the prior art.
In an appeal from a rejection for anticipation, the Appellants must
explain which limitations are not found in the reference. See Gechter v.
Davidson, 116 F.3d 1454, 1460 (Fed. Cir. 1997) ("[W]e expect that the
Board's anticipation analysis be conducted on a limitation by limitation
basis, with specific fact findings for each contested limitation and
satisfactory explanations for such findings.")(emphasis added). See also In
re Kahn, 441 F.3d 977, 985-86 (Fed. Cir. 2006) (“On appeal to the Board, an
applicant can overcome a rejection [under § 103] by showing insufficient
evidence of prima facie obviousness or by rebutting the prima facie case
with evidence of secondary indicia of nonobviousness.”) (quoting In re
Rouffet, 149 F.3d 1350, 1355 (Fed. Cir. 1998)).
“Section 103 forbids issuance of a patent when ‘the differences
between the subject matter sought to be patented and the prior art are such
that the subject matter as a whole would have been obvious at the time the
invention was made to a person having ordinary skill in the art to which said
subject matter pertains.’” KSR Int'l Co. v. Teleflex Inc., 127 S.Ct. 1727,
1734 (2007). The question of obviousness is resolved on the basis of
underlying factual determinations including (1) the scope and content of the
prior art, (2) any differences between the claimed subject matter and the
prior art, (3) the level of skill in the art, and (4) where in evidence, so-called
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secondary considerations. Graham v. John Deere Co., 383 U.S. 1, 17-18
(1966). See also KSR, 127 S.Ct. at 1734 (“While the sequence of these
questions might be reordered in any particular case, the [Graham] factors
continue to define the inquiry that controls.”)
In KSR, the Supreme Court emphasized “the need for caution in
granting a patent based on the combination of elements found in the prior
art,” id. at 1739, and discussed circumstances in which a patent might be
determined to be obvious. In particular, the Supreme Court emphasized that
“the principles laid down in Graham reaffirmed the ‘functional approach’ of
Hotchkiss, 11 How. 248.” KSR, 127 S.Ct. at 1739 (citing Graham v. John
Deere Co., 383 U.S. 1, 12 (1966) (emphasis added)), and reaffirmed
principles based on its precedent that “[t]he combination of familiar
elements according to known methods is likely to be obvious when it does
no more than yield predictable results.” Id. The Court explained:
When a work is available in one form of endeavor, design
incentives and other market forces can prompt variations of it,
either in the same field or a different one. If a person of
ordinary skill can implement a predictable variation, § 103
likely bars its patentability. For the same reason, if a technique
has been used to improve one device, and a person of ordinary
skill in the art would recognize that it would improve similar
devices in the same way, using the technique is obvious unless
its actual application is beyond his or her skill.

Id. at 1740. The operative question in this “functional approach” is
thus “whether the improvement is more than the predictable use of prior art
elements according to their established functions.” Id.
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ANALYSIS
Claims 1-4 and 7
We select claim 1 as representative of this group, pursuant to our
authority under 37 CFR § 41.37(c)(1)(vii).
Appellants argue that Hofmann does not teach the step of “receiving,
at a buffer, at a rate substantially greater than a streaming content display
rate and using a point-to-point connection, a first content stream carrying a
content channel signal,” nor the step of “switching from the first content
stream to a second content stream carrying the content channel signal,
wherein the second content stream is transferred to the buffer substantially at
the display rate,” as claim 1 requires. Appellants argue that Hofmann does
not teach initially receiving data at a rate higher than the display rate, nor
later transferring data to a buffer at the display rate, but merely teaches data
transfer at a higher rate than the data rate at which data packets are received
from the content server to the helper server (HS) (App. Br. 11).
Appellants’ arguments, therefore, present us with the issue of whether
Hofmann’s “content server rate” corresponds to the “display rate” recited in
claim 1.
In Appellants’ invention, after data is supplied at the higher rate to fill
the de-jitter buffer, data is then supplied at the “normal viewing speed” (FF
2). Necessarily, then, Appellants’ display rate, once the data supply rate
drops to “normal,” is constrained to be no higher than the rate at which data
is supplied.
Hofmann operates in an analogous manner. Whether the streaming
media broadcast is considered “popular” or “non-popular,” the playout
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history is streamed from the playout history (PH) buffer at a higher data rate
than the data rates at which data packets are received from the content server
(FF 5). In describing step 84 of Figure 7, labeled “Keep Streaming Received
Live Data with Given Playback Rate; Maintain Playout History,” Hofmann
teaches that once the playout history buffer is depleted, subsequent data
packets which make up the requested streaming media (SM) broadcast are
streamed to the requesting client from the helper server (HS) at the content
server rate (FF 6). Necessarily, when the streaming is conducted at the
content server rate, the display rate of Hofmann will also be constrained to
be no higher than the rate at which data is supplied, i.e., the content server
rate. Hofmann thus teaches that live data will be streamed at a “given
playback rate” (Fig. 7) and that data will be streamed at the “content server
rate” (FF 6). We find, therefore, that the “content server rate” of Hofmann is
equal to its playback rate. We further find that the concept of “playback
rate” is the same as the concept of “display rate.”
Appellants further argue that Hofmann’s display rate is not the same
as the content server rate because, for example, “the content server rate may
be subject to bandwidth limitations as well as network fluctuations due to
the distance from the content server to the HS and/or client” (Reply Br. 15).
Appellants, however, are concerned with transmitting digital video from a
Head End (HE) to a Set Top Box (STB) over a Digital Subscriber Line
(DSL) connection (FF 1). We concur in the Examiner’s finding that because
Appellants’ Specification discloses a variety of different networks that can
be used to distribute the video data, Appellants’ video distribution network
would necessarily also be vulnerable to such bandwidth limitations and
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network fluctuations (Ans. 13), and, in that event, Appellants’ display rate
would be reduced.
With respect to Appellants’ further argument that Hofmann’s content
server streaming rate makes no mention of the client device in determining
this actual rate, but that the content server rate is dictated by the rate at
which packets are received at the HS by the content server (Reply Br. 11),
we observe supra that Appellants’ display rate is likewise dictated by the
rate at which packets are received at the client. Ideally, packets are received
in time for display to occur at “normal viewing speed” (FF 2), but display
will necessarily be slower or not occur at all if the network connection is
degraded or interrupted.
Because we find that the “content server rate” of Hofmann is equal to
its “display rate,” we find that Hofmann teaches receiving a first content
stream at a rate substantially greater than a streaming content display rate,
and further teaches transferring a second content stream to a buffer
substantially at the display rate. We thus find that Hofmann teaches all the
limitations of claim 1. Therefore, we do not find error in the Examiner’s
rejection of claims 1-4 and 7 under 35 U.S.C. § 102(e).
Claims 8, 9, 11, 12, and 14-16
We select claim 8 as representative of this group, pursuant to our
authority under 37 C.F.R. § 41.37(c)(1)(vii).
Appellants present the same arguments in favor of the patentability of
claim 8 that were presented in favor of the patentability of claim 1, further
specifying only that “none of the cited references” teaches the limitations
contested therein (App. Br. 19; Reply Br. 20, 26).
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Because we find supra that Hofmann teaches all the features of claim
1, we therefore sustain the rejection of claims 8, 9, 11, 12, and 14-16 under
35 U.S.C. § 103 over Hofmann in view of Goode, for the same reasons.

CONCLUSION OF LAW
We conclude that Appellants have not shown that the Examiner erred
in rejecting claims 1-4, 7-9, 11, 12, and 14-16. Claims 1-4, 7-9, 11, 12, and
14-16 are not patentable.

DECISION
The Examiner’s decision rejecting claims 1-4, 7-9, 11, 12, and 14-16
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)(1)(iv).

AFFIRMED

KIS

JOSEPH S. TRIPOLI
THOMSON MULTIMEDIA LICENSING INC.
2 INDEPENDENCE WAY
P. O. BOX 5312
PRINCETON, NJ 08543-5312