Ex Parte Zilbershtein et alDownload PDFPatent Trial and Appeal BoardDec 31, 201311482217 (P.T.A.B. Dec. 31, 2013) Copy Citation 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. 11/482,217 07/07/2006 Itai Ephraim Zilbershtein AVYA.84US01 5751 109149 7590 01/02/2014 Cochran Freund & Young/ AVAYA, Inc. 2026 Caribou Drive Suite 201 Fort Collins, CO 80525 EXAMINER NEURAUTER, GEORGE C ART UNIT PAPER NUMBER 2615 MAIL DATE DELIVERY MODE 01/02/2014 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 ITAI EPHRAIM ZILBERSHTEIN, SHLOMO BITON, and DAN GLUSKIN ____________ Appeal 2011-000669 Application 11/482,217 Technology Center 2600 ____________ Before ELENI MANTIS MERCADER, JEFFREY S. SMITH, and DANIEL N. FISHMAN, Administrative Patent Judges. SMITH, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-000669 Application 11/482,217 2 STATEMENT OF THE CASE This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s final rejection of claims 1-20, 22-28 and 30 which are all the claims remaining in the application. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. Representative Claim 1. A method comprising: employing circuitry to identify and analyze a plurality of data streams, wherein the transmission of each of the data streams is initiated in response to a request to access the same content item, and wherein the transmission of each data stream comprises: retrieving data from a cache and transmitting the retrieved data to a recipient; and adjusting the data transfer rate in at least one of the data streams, wherein the magnitude of the adjustment depends on the size of an access interval for the content. Prior Art Elliot US 2002/0064149 A1 May 30, 2002 Nishimoto US 2006/0224784 A1 Oct. 5, 2006 Lango US 7,155,531 B1 Dec. 26, 2006 Nomura US 2007/0220208 A1 Sep. 20, 2007 Examiner’s Rejections Claims 1, 10, 13, 22, and 30 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Nomura and Nishimoto. Claims 2, 11, 18-20, and 23 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Nomura, Nishimoto, and Lango. Appeal 2011-000669 Application 11/482,217 3 Claims 3-9, 12, 14-17, and 24-28 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Nomura, Nishimoto, and Elliot. ANALYSIS Section 103 rejections of claims 1-9 Claim 1 recites “adjusting the data transfer rate in at least one of the data streams, wherein the magnitude of the adjustment depends on a size of an access interval for the content.” The Examiner finds that paragraph 174 of Nomura considers fluctuations in access intervals when calculating prefetch timing, and paragraph 46 of Nishimoto teaches controlling the transfer rate of a data stream. Ans. 21. Appellants contend that the combination of Nomura and Nishimoto does not teach the magnitude of the adjustment depends on a size of an access interval for the content. Br. 14- 16. We agree with Appellants. Paragraph 174 of Nomura teaches determining an interval for prefetching data into cache, not adjusting the data transfer rate in a data stream depending on a size of a content access interval. Paragraph 46 of Nishimoto teaches maintaining a found transfer rate, not adjusting the data transfer rate in a data stream depending on a size of a content access interval. The Examiner has not persuasively explained how the combination of Nomura and Nishimoto teaches “adjusting the data transfer rate in at least one of the data streams, wherein the magnitude of the adjustment depends on a size of an access interval for the content.” We do not sustain the rejection of claim 1, or corresponding dependent claims 2-9, under 35 U.S.C. § 103. Appeal 2011-000669 Application 11/482,217 4 Section 103 rejections of claims 10-21 Claim 10 recites “employing circuitry to determine a predicted interval of time between completion of distribution of a defined portion of a same content resource residing in a cache to a device belonging of a plurality of devices and at least one additional device of the plurality of devices.” The Examiner finds that paragraph 170 of Nomura teaches performing a prefetch operation at a predetermined time. Ans. 21. However, the Examiner has not persuasively explained how performing a prefetch operation at a predetermined time teaches circuitry to determine a time interval between completing distribution of a portion of a content resource to two different devices as required by claim 10. We do not sustain the rejection of claim 10, or corresponding dependent claims 11-21, under 35 U.S.C. § 103. Section 103 rejections of claims 22-28 The Examiner finds that paragraph 28 of Nomura teaches storing prefetch operations in cache (Ans. 21), and paragraphs 90 and 106 teach calling software functions when needed (Ans. 22). However, the Examiner has not persuasively explained how the combination of Nomura and Nishimoto teaches “employing circuitry to ascertain a number of current requests for the software upgrade by a plurality of similar communication devices and a relative progress of each of the requests” as recited in claim 22. We do not sustain the rejection of claim 22, or corresponding dependent claims 23-28, under 35 U.S.C. § 103. Appeal 2011-000669 Application 11/482,217 5 Section 103 rejection of claim 30 The Examiner finds that paragraph 86 of Nomura teaches determining a transfer rate of streaming data, and paragraph 99 of Nishimoto teaches prioritizing streams having different transfer rates. Ans. 22. However, the Examiner has not explained how the combination of Nomura and Nishimoto teaches “adjusting the transfer rate of the first data stream based on the difference in the amount of data transmitted to the first device via the first data stream and the amount of data transmitted to the second device via the second data stream” as recited in claim 30. We do not sustain the rejection of claim 30 under 35 U.S.C. § 103. DECISION The rejection of claims 1, 10, 13, 22, and 30 under 35 U.S.C. § 103(a) as being unpatentable over Nomura and Nishimoto is reversed. The rejection of claims 2, 11, 18-20, and 23 under 35 U.S.C. § 103(a) as being unpatentable over Nomura, Nishimoto, and Lango is reversed. The rejection of claims 3-9, 12, 14-17, and 24-28 under 35 U.S.C. § 103(a) as being unpatentable over Nomura, Nishimoto, and Elliot is reversed. REVERSED msc Copy with citationCopy as parenthetical citation