Ex Parte Stettner

Patent Trial and Appeal Board

Feb 21, 2014

11959089 (P.T.A.B. Feb. 21, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte ARMANDO P. STETTNER
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Appeal 2011-007986
Application 11/959,089
Technology Center 2400
____________________

Before DEBORAH KATZ, JOHN G. NEW, and HUNG H. BUI,
Administrative Patent Judges.

BUI, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 seeks our review under 35 U.S.C. § 134(a) of the
Examiner’s final rejections of claims 1-11 and 23-24. We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM.2

1 The Real Party in Interest is Verizon Communications Inc.
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STATEMENT OF THE CASE
Appellant’s Invention
Appellant’s invention relates to a system, shown in FIG. 1, for
managing unused media streaming, including stopping the transmission of a
media stream at a content provider 140-150 (e.g., cable company) when such
a media stream received at a client content processing device 110 (e.g., set-
top box “STB”, digital video recorder “DVR”, TV, cellular phone or PC) at
a customer premise 101, via a network 160, is unused because of certain
circumstances. See Spec. ¶¶ [0007]-[0010]; FIG. 1 and FIG. 2.
Appellant’s FIG. 1 is reproduced below with additional markings for
purposes of illustration:

FIG. 1 shows a system 100 for managing unused media streaming.

2 Our decision refers to Appellant’s Appeal Brief filed December 17, 2010
(“App. Br.”); Reply Brief filed March 21, 2011 (“Reply Br.”); Examiner’s
Answer mailed January 21, 2011 (“Ans.”); Final Office Action mailed July
23, 2010 (“Final Rej.”); and the original Specification filed December 18,
2007 (“Spec.”).
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As shown in FIG. 1, the content processing device 110 is configured
to selectively receive a media stream from the content server 140, via the
network 160. The content processing device 110 is further configured to
receive a bandwidth check request, typically sent from the bandwidth server
150, or alternatively, initiated based on a predetermined event, time or
schedule. Id. at ¶ [0022]. The content processing device 110 then
determines if the media stream is in use based on a status indicator before
sending a message to the bandwidth server 150 to inform the content server
140 to stop transmitting the media stream in order to increase bandwidth
efficiency. Id. at ¶ [0038]-[0041].

Claims on Appeal
Claim 1 is the only independent claim on appeal. Claim 1 is
representative of the invention, as reproduced with disputed limitations
emphasized below:
1. A method, comprising:
receiving a streaming media signal in a content
processing device, the content processing device being part of a
local area network;
sending, from a server that manages unused media
streams, a bandwidth check request to the content processing
device, where the server is not part of the local area network;
receiving the bandwidth check request in the content
processing device;
receiving a first status indicator in the content processing
device;
determining, with the content processing device, if the
streaming media signal is in use based on the first status
indicator; and
sending a message based on the first status indicator from
the content processing device to the server.
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Evidence Considered
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Bodin et al. US 200/0015558 A1 Jan. 19, 2006
Wang US 2007/0143777 A1 Jun. 21, 2007
Kongalath US 2007/0220577 A1 Sep. 20, 2007
Edwards et al. US 2007/0294737 A1 Dec. 20, 2007

Examiner’s Rejections
(1) Claims 1-4, 7-11, 13-15, 17-21, and 23 stand rejected under
35 U.S.C. § 103(a) as being unpatentable over Edwards, Kongalath, and
Bodin. Ans. 3-14.
(2) Claims 5, 6, 16, and 22 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Edwards, Kongalath, Bodin, and Wang. Ans.
14-17.
(3) Claim 24 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Edwards and Bodin. Ans. 17-18.

ISSUES
Based on Appellant’s arguments, the issue on appeal is whether the
Examiner has erred in rejecting claims 1-4, 7-11, 13-15, 17-21, and 23 under
35 U.S.C. § 103(a) as being unpatentable over Edwards, Kongalath, and
Bodin. In particular, the appeal turns on:
(1) Whether the Examiner’s combination of Edwards, Kongalath,
and Bodin discloses or suggests “sending, from a server that manages
unused media streams, a bandwidth check request to the content processing
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device, where the server is not part of the local area network,” as recited in
independent claim 1, and similarly recited in independent claim 13; and
(2) Whether the Examiner has articulated a reason to combine
Edwards, Kongalath, and Bodin and support the legal conclusion of
obviousness. App. Br. 10-18; Reply Br. 4-9.

ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellant’s
arguments that the Examiner has erred. We disagree with Appellant’s
conclusions as to all rejections. We adopt as our own the findings and the
reasons set forth by the Examiner in the Examiner’s Answer in response to
Appellant’s Appeal Brief. We further highlight and address specific
findings and arguments for emphasis as follows.

§ 103(a) Rejection of Claims 1-4, 7-11, 13-15, 17-21, and 23
With respect to independent claim 1, the Examiner finds Edwards
discloses a similar system for managing a media stream within a home
network including a content processing device (i.e., IPTV server and STB)
to receive a media stream and a bandwidth check request, and determine if
the media stream is in use based on a status indicator before sending a
message to a content provider, via a network. Ans. 4 (citing Edwards,
¶¶ [0015], [0016], [0021], [0022], [0027], and [0028]); see also FIG. 4 and
FIG. 6. The Examiner then finds Kongalath discloses a bandwidth server at
a content provider (not part of a home network) to manage unused media
stream, including sending a request and receiving a reply from the content
processing device. Id. at 5 (citing Kongalath, ¶¶ [0007], [0011], [0013],
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[0041], and FIG. 3). The Examiner further cites Bodin for an explicit
disclosure of a process of sending a request and receiving a reply between a
content processing device (i.e., client device) and a content provider, as
described implicitly by Edwards and Kongalath. Id. (citing Bodin,
¶ [0114]).
Based on these disclosures, the Examiner concludes:
It would have been obvious …to combine the optimization of
Kongalath with the stream management of Edwards as “it
would be advantageous to have a solution for effectively
managing digital content, being downloaded to an STB, an MS
or a PC, wherein the download of such a content is stopped in
circumstances when the viewer no longer uses the downloaded
content” (Kongalath [0013]).
***
It 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 to combine the method of delivering dynamic
content of Bodin with the streaming system of Edwards and
Kongalath as it would provide improved coordination.

Ans. 10-11.
Appellant contends that Edwards, Kongalath, and Bodin do not
disclose or suggest “sending, from a server that manages unused media
streams, a bandwidth check request to the content processing device,
where the server is not part of the local area network,” as recited in
independent claim 1, and similarly recited in independent claim 13. App.
Br. 11-13, 15-16; Reply Br. 4-9. In particular, Appellant acknowledges that
Kongalath discloses a bandwidth server at a content provider (not part of a
home network) to manage unused media stream, including sending a request
for information to a client device. App. Br. 12. However, Appellant argues
Kongalath does not use the bandwidth server to send a bandwidth check
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signal to the content processing device. Id. Likewise, Appellant also argues
Bodin fails to disclose a bandwidth server to send any bandwidth check
signal to the content processing device. Id. at 13, 17. In addition, Appellant
further argues that the Examiner has not provided articulated reasoning to
combine Edwards, Kongalath, and Bodin sufficiently to support the legal
conclusion of obviousness. Id. at 14-15.
We are not persuaded by Appellant’s arguments. First, as correctly
found by the Examiner, Edwards discloses a content processing device (i.e.,
IPTV server or STB) in a home network, shown in FIG. 4 and FIG. 6, to
receive a media stream from a content provider 608-612 and a bandwidth
check request in a form of “metadata” associated with the media stream.
Ans. 19 (citing Edwards, ¶ [0027]). According to Edwards, “metadata” is
descriptive information about a particular media stream and includes at least
a status associated with a media stream and a location. See Edwards,
¶¶ [0021]-[0026].
The status may include a variety of configurable information,
such as descriptive text indicating that a particular stream is not
in use within the home viewing network, is actively being
watched or consumed somewhere within the home viewing
network, is actively being recorded within the home viewing
network, a type description for an IPTV stream within the home
viewing network (e.g., live television, pay-per-view, Internet
feed, Video, Digital Versatile Disk playing on a DVD player or
STB, etc.), and the like.

See Edwards, ¶ [0022] (emphasis added).
Kongalath, and not Bodin, is relied upon for disclosing the missing
element, i.e., the use of a bandwidth server at a content provider (not part of
a home network) to manage unused media stream, including sending a
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request and receiving a reply from the content processing device. Ans. 19
(citing Kongalath, ¶¶ [0007], [0011], [0013], [0041], and FIG. 3).
FIG. 3 of Kongalath is reproduced below.

FIG. 3 shows a system for managing unused media streaming.
As shown in FIG. 3, Kongalath’s system is very similar to Appellant’s
claimed system, shown in FIG. 1, including a content provider 302 to
transmit a media stream and a content processing device in a form of
terminal equipment 306 to receive the media stream, via a network 304.
The terminal equipment 306 is further configured to receive a status
indicator (indication) that the media stream being received from the content
provider 302 is no longer used or consumed. See Kongalath, ¶¶ [0036] and
[0038]. According to Kongalath:
Such an indication may comprise for example a power off
signal message 314 received from the media consumer 310, the
signal 315 that this media consumer 310 uses a different source
of media, an indication 316 that the user currently utilizes a
different application on a PC, mobile station, or PDA, or any
other type an indication that signals that the multimedia
stream 312 is no longer needed. Responsive to the received
indication, the media manager client module 308 creates a
message 316 for the content provider server 302 to stop
transmission of the multimedia stream 312, and sends the
request message 316 to the content provider server 302 in order
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to request the transmission of the multimedia stream 312 to be
stopped. Upon receipt of the request message 316, the content
provider server 302 stops sending the multimedia stream 312,
therefore freeing up the bandwidth reserved over the network
304 for the transmission of that media stream.

Id. at ¶ [0038] (emphasis added).
The bandwidth manager 320 is responsible for managing, i.e. the
evaluation, allocation, reallocation, and de-allocation of reserved
bandwidthfor the streaming of media content from the content provider
server 302 to terminal equipment 306. The bandwidth manager 320 is
configured to receive the request message 316 from the terminal equipment
306 and act to de-allocate and free-up the bandwidth reserved for streaming
the multimedia content 312. Id. at ¶ [0038]. According to Kongalath, the
bandwidth manager 320 may be part of the content provider server 302, or
may be implemented as a separate entity, as used in Appellant’s claimed
invention. Id. at ¶ [0039].
In our view, the only distinction between Kongalath’s system, shown
in FIG. 3 and Appellant’s claimed system, shown in FIG. 1, is the generation
of the so-called “bandwidth check request” used to determine whether a
media stream received from the content provider 302 is no longer used or
consumed. For example, in Appellant’s claimed system, the so-called
“bandwidth check request” is sent from the content provider to the content
processing device in a home network, albeit such a “bandwidth check
request” can also be initiated by the content processing device. See
Appellant’s Spec. ¶ [0022]. In contrast, in the Edward/Kongalath’s system,
the so-called “bandwidth check request” is initiated by the content
processing device in the form of a status indicator (indication) of whether a
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media stream being received from the content provider is no longer used or
consumed.
Regardless, we find the distinction is noted within the level of
ordinary skill in the art. Persons of varying degrees of skill not only possess
varying bases of knowledge, they also possess varying levels of imagination
and ingenuity in the relevant field, particularly with respect to problem-
solving abilities.” DyStar Textilfarben GmbH & Co. Deutschland KG v.
C.H. Patrick Co., 464 F.3d 1356, 1370 (Fed. Cir. 2006). In an obviousness
analysis, it is not necessary to find precise teachings directed to the specific
subject matter claimed because inferences and creative steps that a person of
ordinary skill in the art would employ can be taken into account. See KSR
Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). In this regard, “[a]
person of ordinary skill is also a person of ordinary creativity, not an
automaton.” Id. at 421. One skilled in the art is presumed to know how to
make routine adaptations or modifications to employ a solution from one
context to a related problem in another context. In re Etter, 756 F.2d 852,
859-60 (Fed. Cir. 1985) (en banc). As such, and contrary to Appellant’s
contention, one skilled in the art, looking at Edwards and Kongalath, would
draw a reasonable inference that the so-called “bandwidth check request”
can be initiated for a number of reasons, including, for example: (1) by the
content provider, or (2) by the content processing device within a home
network. In re Preda, 401 F.2d 825, 826 (CCPA 1968).
Based on these teachings, we find that Edwards and Kongalath
disclose or suggest the disputed limitation: “sending, from a server that
manages unused media streams, a bandwidth check request to the content
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processing device, where the server is not part of the local area network,” as
recited in Appellant’s independent claims 1 and 13.
Second, “any need or problem known in the field of endeavor at the
time of invention and addressed by the patent can provide a reason for
combining the elements in the manner claimed.” Id. at 420. The Examiner
has provided a reason to combine Edwards and Kongalath, i.e., to manage
digital content, including unused content. Ans. 19 (citing Kongalath,
¶ [0013]). We find the Examiner’s reason to combine Edwards and
Kongalath sufficient to support the legal conclusion of obviousness. Ans.
24-25 (citing Kongalath, ¶ [0013]).
Lastly, we note that Appellant has raised new arguments against the
§103 rejection of claims 1-4, 7-11, 13-15, 17-21, and 23 over Edwards,
Kongalath, and Bodin in the Reply Brief.3 Specifically, Appellant disputes
the Examiner’s factual finding that Edwards discloses a bandwidth check
request in a form of “metadata” and argues that “nowhere does Edwards
disclose that such metadata has anything to do with a bandwidth check
request, as alleged by the Examiner. Reply Br. 6-7.
However, Appellants do not provide a showing of good cause why
these arguments were not raised in the Appeal Brief. Appellant has not
explained why, nor is it apparent that, these arguments were necessitated by
a new point in the Examiner Answer or any other circumstance constituting
“good cause” for its belated presentation. See Ex parte Borden, 93
U.S.P.Q.2d 1473, 1473-74 (BPAI 2010) (“informative”) (absent a showing
of good cause, the Board is not required to address argument in Reply Brief

3 See e.g., Reply Brief 5-6.
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that could have been presented in the principal Appeal Brief”); see also 37
C.F.R. § 41.41(b)(2). Accordingly we do not consider these arguments.
However, even if these arguments were to be considered, we are not
persuaded because such “metadata” is descriptive information about a
particular media stream and, in the context of Edwards, is descriptive of
whether a particular media stream is not in use within a home network, and
is used to inform the content provider to free-up the bandwidth reserved for
streaming the media stream. See Edwards, ¶¶ [0021]-[0026]. As such, and
in the absence of any specific definition, Appellant’s claimed term
“bandwidth check request” can be interpreted to read on the “metadata” as
described by Edwards, as correctly noted by the Examiner. Ans. 4 (citing
Edwards, ¶ [0015]).
For the reasons set forth above, Appellants’ contentions have not
persuaded us of error in the Examiner’s rejection of independent claims 1
and 13. Accordingly, we sustain the Examiner’s obviousness rejections of
independent claims 1 and 13.
With respect to dependent claims 2-4, 7-11, 12, 14-15, 17-21, and 23,
Appellant presents no separate patentability arguments. For the same
reasons discussed, we also sustain the Examiner’s obviousness rejection of
claims 2-4, 7-11, 12, 14-15, 17-21, and 23.
With respect to dependent claims 5, 6, 16, and 22, Appellant reiterates
the same arguments presented with independent claims 1 and 13. For the
same reasons discussed, we also sustain the Examiner’s obviousness
rejection of claims 5, 6, 16, and 22.
With respect to independent claim 24, Appellant argues that Edwards
and Bodin do not disclose or suggest a content processing device to
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selectively receive a streaming media signal and a periodic bandwidth check
request from a content server. App. Br. 20. Appellant further argues that
the Examiner has not provided articulated reasoning to combine Edwards
and Bodin sufficiently to support the legal conclusion of obviousness. Id. at
21.
We disagree. As correctly found by the Examiner, Edwards discloses
a content processing device (i.e., IPTV server or STB) in a home network,
shown in FIG. 4 and FIG. 6, to receive a media stream from a content
provider 608-612 and a bandwidth check request in a form of “metadata”
associated with the media stream. Ans. 26 (citing Edwards, ¶¶ [0015] and
[0027]). Consequently, we find Edwards and Bodin disclose or suggest a
content processing device to selectively receive a streaming media signal
and a periodic bandwidth check request from a content server, as recited in
Appellant’s independent claim 24. Likewise, we also find the Examiner’s
reason to combine Edwards and Bodin sufficient to support the legal
conclusion of obviousness. Ans. 27-28 (citing Bodin, ¶¶ [0005] and [0015]).
Accordingly, and for the same reasons discussed in connection with claims 1
and 13, we also sustain the Examiner’s obviousness rejection of claim 24.

CONCLUSION
On the record before us, we conclude the Examiner has not erred in
rejecting: (1) claims 1-4, 7-11, 13-15, 17-21, and 23 under 35 U.S.C.
§ 103(a) as being unpatentable over Edwards, Kongalath, and Bodin; (2)
claims 5, 6, 16, and 22 under 35 U.S.C. § 103(a) as being unpatentable over
Edwards, Kongalath, Bodin, and Wang; and (3) claim 24 under 35 U.S.C.
§ 103(a) as being unpatentable over Edwards and Bodin.
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DECISION
As such, we AFFIRM the Examiner’s final rejection of claims 1-11
and 23-24.
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

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