13164285 (P.T.A.B. Sep. 28, 2017)

Ex Parte Walker et al

Patent Trial and Appeal BoardSep 28, 2017

13164285 (P.T.A.B. Sep. 28, 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. 13/164,285 06/20/2011 Todd Walker 007412.01381 1549 71867 7590 10/02/2017 BANNER & WITCOFF , LTD ATTORNEYS FOR CLIENT NUMBER 007412 1100 13th STREET, N.W. SUITE 1200 WASHINGTON, DC 20005-4051 EXAMINER TEKLE, DANIEL T ART UNIT PAPER NUMBER 2481 NOTIFICATION DATE DELIVERY MODE 10/02/2017 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): PTO-71867 @bannerwitcoff.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte TODD WALKER, BRUCE BRADLEY, THOMAS DAY, ROBERT GAYDOS, JOHN LEDDY, and WEIDONG MAO Appeal 2017-000245 Application 13/164,285 Technology Center 2400 Before BRADLEY W. BAUMEISTER, KARA L. SZPONDOWSKI, and JOHN R. KENNY, Administrative Patent Judges. KENNY, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE This is an appeal under 35 U.S.C. § 134(a) from rejections of claims 1—10, 27—32, 34, 35, and 37—40, which constitute all pending claims. Final Act. 1. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. Appeal 2017-000245 Application 13/164,285 CLAIMED INVENTION The claimed invention is directed to the use of a networked digital video recorder (nDVR) and a remote digital video recorder (DVR). Spec. 14, Claim 1. Claim 1, reproduced below with its disputed limitation italicized, is illustrative of the claimed subject matter: 1. A method, comprising: receiving, at a networked digital video recorder (nDVR) computing device remote from a digital video recorder (DVR), a request to record a future scheduled program to nDVR storage; and performing, in response to the request and an occurrence of a scheduled transmission time of the scheduled program: recording, by the nDVR computing device, the scheduled program to the nDVR storage, and responsive to a determination that the DVR has an unused tuner that is unused during transmission of the scheduled program, instructing the DVR to tune the unused tuner of the DVR to the scheduled program while the scheduled program is being recorded by the nDVR computing device. REFERENCES Meuninck Putterman Drope US 8,843,975 B2 Sept. 23, 2014 US 2010/0074600 A1 Mar. 25, 2010 US 2011/0113122 A1 May 12, 2011 REJECTIONS Claims 1—10 and 37-40 stand rejected under 35 U.S.C. § 103(a) as unpatentable over the combination of Putterman and Drope. Final Act. 3. Claims 27—32, 34, and 35 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Putterman and Meuninck. Final Act. 8. 2 Appeal 2017-000245 Application 13/164,285 FINDINGS, CONTENTIONS, AND ANALYSIS The Application has three independent claims: claims 1, 27, and 38, which we separately address. Claim 1 The Examiner finds Putterman teaches all of the limitations of claim 1, except the responsive limitation italicized above, which the Examiner finds the algorithms of Figures 8 and 9 of Drope teach. Final Act. 2-4. Appellants dispute the Examiner’s findings regarding Drope, arguing Drope’s algorithms do not teach or suggest the responsive limitation of claim 1 because those algorithms tune either a DVR or an nDVR, but not both, to a scheduled program. App. Br. 11—12; Reply Br. 2—3. On this record, we agree with the Appellants. Although the Examiner explains how Drope discloses (i) the choice of either a DVR or an nDVR to record a scheduled program, (ii) criteria for making that choice, and (iii) the use of a storage device, the Examiner has not sufficiently explained how the cited passages disclose or suggest tuning both a DVR and an nDVR to the same scheduled program, and such a teaching or suggestion is not apparent from the cited disclosures. Final Act. 4; Ans. 11—13; Drope H 21, 65, 75— 76, Figs. 8—9. Accordingly, we do not sustain the rejection of claim 1. Claim 27 The Examiner finds Putterman teaches all limitations of claim 27, except its second responsive limitation.1 Final Act. 8. The Examiner finds 1 “responsive to a determination that the requesting computing device is able to receive the transmission of the content at the scheduled transmission time, instructing the requesting computing device to receive at least a portion of the transmission of the content while the transmission of the content is being recorded by the network recording device.” 3 Appeal 2017-000245 Application 13/164,285 Meuninck teaches the selection of media content and a recipient media device. Id. at 8—9. Appellants dispute the Examiner’s finding regarding Meuninck, arguing Meuninck’s description of selecting media content and a recipient media device simply discloses transmitting a portion of a media content to a DVR and then retrieving it by the server and, therefore, does not teach or suggest the second responsive limitation of claim 27. App. Br. 13; Reply Br. 3—A. On this record, we agree with Appellants. Although the Examiner explains how Meuninck selects media content and a recipient media device, it is not apparent from that explanation how that selection and the subsequent transmission is responsive to a determination that the requesting computing device is able to receive the transmission at the scheduled transmission time. Final Act. 8—9; Ans. 13—15. Accordingly, we do not sustain the rejection of claim 27. Claim 38 The Examiner finds Putterman teaches all limitations of claim 38, except its second responsive limitation,2 which the Examiner finds the algorithms of Figures 1,8, and 9 of Drope teach. Final Act. 2-4, 7—8; Ans. 15—17. Appellants dispute the Examiner’s findings regarding Drope, arguing that the algorithms of Drope do not instruct a DVR to retrieve a portion of a scheduled program responsive to determining that a portion of 2 “responsive to determining that a first portion of the scheduled program is available in a temporary buffer of the DVR and that a second portion of the scheduled program is missing from the temporary buffer of the DVR, instructing the DVR to retrieve the second portion of the scheduled program to the DVR via the storage unit of the nDVR computing device.” 4 Appeal 2017-000245 Application 13/164,285 the scheduled programming is missing from a temporary buffer of the DVR. App. Br. 14; Reply Br. 4. On this record, we agree with Appellants. It is not apparent from the algorithms or the Examiner’s explanation how the algorithms instruct the DVR to retrieve a portion of a program responsive to a determination that the scheduled programming is missing from a temporary buffer of the DVR. Final Act. 4, 7—8; Ans. 15—17; Drope 12, 21, 65—67, 75—76, Figs. 4A, 8— 9. Accordingly, we do not sustain the rejection of claim 38. Claims 2—10, 28—32, 34, 35, 37, 39, and 40 We do not sustain the rejections of claims 2—10, 28—32, 34, 35, 37, 39, and 40 for the same reasons as for independent claims 1, 27, and 38, from which each of claims 2—10, 28—32, 34, 35, 37, 39, and 40 ultimately depend. DECISION We reverse the rejections of claims 1—10, 27—32, 34, 35, and 37-40. REVERSED 5