Ex Parte YU et al

Patent Trial and Appeal Board

Aug 24, 2016

12615915 (P.T.A.B. Aug. 24, 2016)

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.
12/615,915 11/10/2009 JIANMING YU PD-209031 1497
20991 7590 08/25/2016
THE DIRECTV GROUP, INC.
PATENT DOCKET ADMINISTRATION
CA / LA1 / A109
2230 E. IMPERIAL HIGHWAY
EL SEGUNDO, CA 90245
EXAMINER
PARK, JEONG S
ART UNIT PAPER NUMBER
2454
MAIL DATE DELIVERY MODE
08/25/2016 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte JIANMING YU,
SUBBARAYA KUMAR DEVERAKONDA VENKATA,
CHARLES C. DEBERGH, and LONNIE SCOTT CLABAUGH
____________

Appeal 2015-001868
Application 12/615,915
Technology Center 2400
____________

Before MAHSHID D. SAADAT, DAVID M. KOHUT, and
KAMRAN JIVANI, Administrative Patent Judges.

JIVANI, Administrative Patent Judge.

DECISION ON APPEAL
Appellants1 seek our review under 35 U.S.C. § 134(a) of the
Examiner’s final decisions rejecting claims 1, 2, 4–10, 21, 22, and 26–30.2
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 Appellants identify The DIRECTV Group, Incorporated, as the real party
in interest. App. Br. 2.
2 Claims 3, 11–20, 23–25, and 31 stand objected to as being dependent upon
a rejected base claim, but are indicated as allowable if rewritten in
independent form. Final Act. 2.
Appeal 2015-001868
Application 12/615,915

2
STATEMENT OF THE CASE
The present application relates to monitoring a transport processing
system of a system for downloading software images to user devices. Spec.
¶ 2.
Claim 1 is illustrative (bracketed material added):
1. A method comprising:
[L1] monitoring a first transport processing
system of a broadcast system communicating a first
software image;
[L2] generating a first announcement for the
first software image at the broadcast system;
[L3] communicating the first announcement
from the broadcast system to a user device;
[L4] determining a failure of the first
transport processing system;
discontinuing the first announcement for the
first software image in response to the failure; and
communicating the first software image
through a second transport processing system of the
broadcast system.

The Rejections
Claims 1, 2, 4, 6–10, 21, 22, and 26–30 stand rejected under 35 U.S.C.
§ 103(a) over McCarthy (US 2008/0040767 A1; publ. Feb. 14, 2008) and
Kaneko (US 6,625,811 B1; iss. Sept. 23, 2003).
Claim 5 stands rejected under 35 U.S.C. § 103(a) over McCarthy,
Kaneko, and Gebhardt (US 2008/0010342 A1; publ. Jan. 10, 2008).
Appeal 2015-001868
Application 12/615,915

3
ANALYSIS
Appellants contend the Examiner errs because the cited references do
not teach or suggest the broadcast system communicating a first software
image, as recited in limitation L1. App. Br. 6. Appellants further contend
the Examiner errs because the cited references do not teach generating and
communicating a first announcement, as recited in limitations L2 and L3
respectively. Id. at 5. Finally, Appellants contend, “Kaneko is completely
silent as to determining a failure of a transport processing system that
communicates a software image” and thus Kaneko does not teach or
suggest limitation L4. Id. at 9.
We have considered Appellants’ arguments in the Appeal Brief and
Reply Brief, as well as the Examiner’s Answer thereto. We are not
persuaded by Appellants’ arguments for at least the following reasons.
First, we are not persuaded by Appellants’ argument regarding
limitation L1 because it is not responsive as to the Examiner’s alternative
findings. Appellants argue, “McCarthy is silent as to the AQT switch 152
(an alleged transport processing system) communicating one or more
software images.” App. Br. 6; Reply Br. 2. Cumulative to AQT switch 152,
the Examiner finds in the Answer that APP Switch 138 coupled to
Application Server 142 meets the transport processing system recited in
limitation L1. Ans. 10. Appellants fail to rebut this finding. See Reply Br.
2. Therefore, based on the record before us, we are not persuaded of
Examiner error with regard to limitation L1.
Second, we agree with Appellants as a matter of claim construction
that the Specification discloses the announcement “notifies the user device
Appeal 2015-001868
Application 12/615,915

4
about software images which are impending or currently being broadcast.”
App. Br. 7 (citing Spec. ¶ 60); Reply Br. 3. We are not, however, persuaded
that the Examiner’s findings fail to meet the claimed announcement. The
Examiner cites, and we agree, McCarthy’s “application server sends a video
content to the user device STB as an announcement to get an order from the
user device STB for sending updated versions.” Ans. 11. Appellants fail to
explain persuasively why the broadest reasonable interpretation of the
claimed announcement would not encompass McCarthy’s generating and
communicating a message that the software image is available for download.
See App. Br. 7; Reply Br. 3.
To the extent Appellants contend McCarthy teaches unicasting, not
broadcasting, we are not persuaded by this argument because it is proffered
without any supporting evidence for the notion that the broadest reasonable
interpretation of “broadcast” would not include a unicast. See Reply Br. 3.
Assuming arguendo that McCarthy’s teachings are limited to unicasting and
that the broadest reasonable interpretation of broadcasting would exclude
unicasting, this argument would fail nevertheless because it does not address
why teaching unicasting would not at least suggest broadcasting to one of
ordinary skill in the art. Therefore, based on the record before us, we are not
persuaded of Examiner error with regard to limitations L2 and L3.
Third, we are not persuaded by Appellants’ argument regarding
limitation L4 because Appellants argue the references individually. The
Examiner correctly relies on McCarthy as teaching or suggesting the
claimed transport processing system that communicates a software image,
and Kaneko as teaching or suggesting monitoring of transport processing
Appeal 2015-001868
Application 12/615,915

5
systems for failure. Final Act. 4–5; Ans. 11–12. The Examiner combines
these teachings and articulates a motivation to combine. Id. Appellants’
argument, however, addresses only Kaneko. App. Br. 9; Reply Br. 5.
Where, as here, a rejection is based on a combination of references, one
cannot show non-obviousness by attacking references individually. In re
Keller, 642 F.2d 413, 426 (CCPA 1981); In re Merck & Co., Inc., 800 F.2d
1091, 1097 (Fed. Cir. 1986).
Accordingly, we sustain the Examiner’s 35 U.S.C. § 103(a) rejection
of claim 1. Appellants present no further arguments for 2, 4, 6–10, 21, 22,
and 26–30, all rejected under the same ground. App. Br. 10–11. Appellants
present no further arguments for dependent claim 5, rejected under separate
grounds. Id. Accordingly, we sustain the Examiner’s 35 U.S.C. § 103(a)
rejections of claims 2, 4–10, 21, 22, and 26–30.

DECISION
We affirm the Examiner’s decisions rejecting claims 1, 2, 4–10, 21,
22, and 26–30.
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