Ex Parte Zimler et al

Patent Trial and Appeal Board

Jan 30, 2013

10744063 (P.T.A.B. Jan. 30, 2013)

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.
10/744,063 12/22/2003 Randy Zimler 030527 (BLL0155US) 6360
36192 7590 01/31/2013
AT&T Legal Department - CC
Attn: Patent Docketing
Room 2A-207
One AT&T Way
Bedminster, NJ 07921
EXAMINER
CHRISTENSEN, SCOTT B
ART UNIT PAPER NUMBER
2444
MAIL DATE DELIVERY MODE
01/31/2013 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

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Ex parte RANDY ZIMLER and WILLIAM WHITED

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Appeal 2010-009836
Application 10/744,063
Technology Center 2400
____________

Before THU A. DANG, JAMES R. HUGHES, and
GREGORY J. GONSALVES, Administrative Patent Judges.

GONSALVES, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the final rejection of
claims 1-26 (App. Br. 1). We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
The Invention
Exemplary Claim 1 follows:
1. A method of distributing segmented content to a
consumer, the method comprising:

receiving a request from a consumer for segmented
content, the segmented content being arranged in a plurality of
separate, independent chapters, the plurality of separate
independent chapters corresponding to chapters of a movie;

classifying segments of said segmented content as
primary content and secondary content, the primary content
being audio-visual content corresponding to a first chapter of
the segmented content, the secondary content being audio-
visual content corresponding to a subsequent chapter of the
segmented content different from the first chapter;

transmitting to said consumer a segment of primary
content corresponding to the first chapter at a first bandwidth
along with at least one secondary content segment
corresponding to the second chapter at a second bandwidth,
said second bandwidth lower than said first bandwidth.

Claims 1, 5-7, 9, 17, 18, and 21-23 stand rejected under 35 U.S.C.
§103(a) as being unpatentable over Omoigui (U.S. Pat. No. 7,096,271),
Taylor (U.S. Pat. No. 6,721,794), and Dagtas (U.S. Pat. Pub. No.
2002/0080286) (Ans. 3-14).
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Claims 2-4 and 10-15 stand rejected under 35 U.S.C. §103(a) as being
unpatentable over Omoigui, Taylor, Dagtas and Peterka (U.S. Pat. Pub. No.
2002/0172368) (Ans. 14-20).
Claims 8 and 24 stand rejected under 35 U.S.C. §103(a) as being
unpatentable over Omoigui, Taylor, Dagtas and Jolitz (U.S. Pat. Pub. No.
2001/0025315) (Ans. 20-21).
Claim 16 stand rejected under 35 U.S.C. §103(a) as being
unpatentable over Omoigui, Taylor, Dagtas, Peterka and Jolitz (Ans. 21-22).
Claims 19, 20, 25, and 26 stand rejected under 35 U.S.C. §103(a) as
being unpatentable over Omoigui, Taylor, Dagtas and Hazra (U.S. Pat. No.
6,510,553 (Ans. 22).

FACTUAL FINDINGS
We adopt the Examiner’s factual findings as set forth in the Answer
(Ans. 3, et seq.).

ISSUES
Appellants’ responses to the Examiner’s position present the
following issues:
1. Did the Examiner err in concluding that the combination of
Omoigui, Taylor, and Dagtas teaches:
the segmented content being arranged in a plurality of separate,
independent chapters, the plurality of separate independent
chapters corresponding to chapters of a movie ... transmitting to
said consumer a segment of primary content corresponding to
the first chapter at a first bandwidth along with at least one
secondary content segment corresponding to the second chapter
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at a second bandwidth, said second bandwidth lower than said
first bandwidth
as recited in independent claim 1, and as similarly recited in independent
claims 9, 17, and 21?
2. Did the Examiner err in concluding that the combination of
Omoigui, Taylor, Dagtas and Peterka teaches that “a predetermined amount
of primary content is transmitted prior to transmission of said secondary
content,” as recited in dependent claim 4, and as similarly recited in
dependent claim 12?
3. Did the Examiner err in concluding that the combination of
Omoigui, Taylor, Dagtas and Jolitz teaches “identifying said secondary
content segment as said primary content when said segment of primary
content is completely transmitted,” as recited in dependent claim 8, and as
similarly recited in dependent claim 24?
4. Did the Examiner err in concluding that the combination of
Omoigui, Taylor, Dagtas and Hazra teaches ’identifying said new segment
as said primary content includes designating a secondary content segment as
primary content when said consumer selects said new segment for viewing,”
as recited in dependent claims 19 and 25?

ANALYSIS
Obviousness Rejection of Claims 1, 5-7, 9, 17, 18, and 21-23 Over Omoigui,
Taylor, and Dagtas
Appellants contend that the Examiner erred in rejecting independent
claims 1, 9, 17, and 21 as obvious because the combination of Omoigui,
Taylor, and Dagtas does not teach dividing content into segments
corresponding to chapters in a movie and transmitting different chapters
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with different bandwidths (App. Br. 4-8). In support of their contention,
Appellants argue that the “components of the multimedia presentation in
Omoigui are not separate, independent chapters and do not correspond to
independent chapters of a movie” (id. at 5). Appellants also argue that
“[t]here is no teaching [in Taylor] that subsequent chapters are sent to the
user at a low bandwidth while a first chapter is sent at a high bandwidth”
(id.).
The Examiner found, however, that Omoigui discloses “that in
situations where a bandwidth has been exceeded due to, for example, a
reduction in available bandwidth, the streams may be altered (which would
alter the stream to a lesser bandwidth amount)” (Ans. 26). The Examiner
also found that “Taylor discloses a system for retreiving [sic] video content,
where the video content may be divided into distinct portions, or chapters”
(id.). The Examiner then concluded that “[b]y utilizing distinct portions
stored in a fashion similar to that in Taylor, the video of Omoigui may be
more efficiently retrieved, as the individual files in the server that need to be
processed for transmission would be smaller, thus requiring less processing
for each individual segment” (id.).
We agree with the Examiner’s conclusion and underlying findings of
fact. Omoigui teaches that different data streams may be transmitted with
different bandwidths: “If the allotted bandwidth or processing capacity has
been exceeded, then master control 230 selects a stream(s) to be altered (step
356)” (col. 4, ll. 57-59). Taylor teaches dividing content into different
chapters: “in the case of a title divided into a plurality of chapters such as
used in digital versatile disks (DVD) storage media, a title loaded onto the
secondary server may be loaded as a plurality of chapters, where each
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chapter may be rapidly entered (i.e., retrieved) based on client requests” (col.
7, ll. 62-67). We conclude, therefore, that the claim limitation of
transmitting different chapters of a movie with different bandwidths is a
combination of the familiar element of dividing a movie into different
chapters as taught by Taylor and transmitting different portions of data with
different bandwidths as taught by Omoigui that would have yielded
predictable results. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007).
Thus, we find no error in the Examiner’s obviousness rejection of
independent claims 1, 9, 17, and 21 as well as claims 5-7, 18, 22, and 23
dependent therefrom because Appellants did not set forth any separate
patentability arguments for the dependent claims (see App. Br. 6-8).

Obviousness Rejection of Claims 2-4 and 10-15 Over Omoigui, Taylor,
Dagtas, and Peterka
Appellants argue that the Examiner erred in rejecting claims 4 and 12
because Peterka does not teach “primary content, which is transmitted at a
higher bandwidth than the secondary content and has a higher quality than
the preliminary content” (App. Br. 8). Appellants’ argument, however, is
not commensurate with the scope of claims 4 and 12 because they do not
require primary and secondary content to be transmitted at different
qualities. Rather, claims 4 and 12 require transmitting primary content
before secondary content.
Moreover, the Examiner concluded that “Peterka teaches sending a
portion of the program, and waiting for a user to pay for the content before
sending additional portions. Thus, a predetermined amount of the primary
content is transmitted, then the secondary content is transmitted upon
payment” (Ans. 29). We agree with the Examiner’s conclusion. Peterka
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discloses that “[t]he free preview could, for example, take the form of . . . a
first portion of the actual movie” (¶[0009]). That is, Peterka teaches
transmitting a portion of a movie (i.e., the primary content) before
transmitting the remainder of the content (i.e., the secondary content).
Accordingly, we find no error in the Examiner’s rejection of dependent
claims 4 and 12. We also find no error in the Examiner’s rejection of
dependent claims 2, 3, 10, 11, and 13-15 because Appellants did not set forth
any separate patentability arguments for those claims (see App. Br. 8).

Obviousness Rejection of Claims 8 and 24 Over Omoigui,
Taylor, Dagtas, and Jolitz
Appellants argue that the Examiner erred in rejecting claims 8 and 24
because “[t]here is no teaching in Jolitz of ‘identifying said secondary
content segment as said primary content when said segment of primary
content is completely transmitted’” (App. Br. 9). The Examiner concluded,
however, that this claim limitation would have been obvious in light of the
teachings of Omoigui, Taylor, Dagtas and Jolitz:
Jolitz teaches the identification of when content has finished
transmission. Thus, rather than waiting for the entire content to
be displayed and another request is made, a person of ordinary
skill in the art would recognize that the identification of Jolitz
would allow the system of Omoigui as modified by Taylor and
Dagtas to begin transmission of the next segment upon
completion of transmission of the first segment without waiting
for an explicit request for the next segment, allowing for more
seamless transmission and playback of the content. Further,
when the next segment begins to transmit, it is no longer the
secondary content, but is instead the primary content.
(Ans. 30-31).
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We agree with the Examiner’s conclusion and underlying findings of
fact. As explained supra with respect to claim 1, the combination of
Omoigui, Taylor, and Dagtas teaches dividing content into different
segments and transmitting the different segments sequentially. Moreover,
Jolitz discloses that “[d]ata from the segment is read into the dual transport
application memory 24 until the segment is completely received, which can
be determined by a length counter” (¶[0081]). That is, when the
transmission of a primary segment is determined to be completed as taught
by Jolitz, the next or secondary content segment to be transmitted may be
considered as the new primary segment and the following segment may be
considered as the new secondary segment. Accordingly, we do not find
error is the Examiner’s rejection of claims 8 and 24.

Obviousness Rejection of Claim 16 Over Omoigui, Taylor,
Dagtas, Peterka, and Jolitz
In support of their contention that the Examiner erred in rejecting
claim 16, Appellants set forth the same argument that they set forth for
claims 8 and 24 (App. Br. 9). In particularly, Appellants argue that “[t]here
is no teaching in Jolitz of ‘said controller identifies said secondary content
segment as said primary content when said segment of primary content is
completely transmitted’” (App. Br. 9). As explained supra with respect to
claims 8 and 24, however, this claim limitation would have been obvious in
light of the teachings of Omoigui, Taylor, Dagtas, and Jolitz. Accordingly,
we find no error in the Examiner’s rejection of claim 16.

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Obviousness Rejection of Claims 19, 20, 25, and 26 Over
Omoigui, Taylor, Dagtas, and Hazra
Appellants argue that the Examiner erred in rejecting claims 19 and
25 because the combination of Omoigui, Taylor, Dagtas, and Hazra does not
teach that "‘identifying said new segment as said primary content includes
designating a secondary content segment as primary content when said
consumer selects said new segment for viewing’" (App. Br. 10). The
Examiner found, however, that in light of selecting content segments as
taught by Hazra, and “as the segments are stored separately, as in Omoigui
as modified by Taylor and Dagtas, it is clear that it would have been obvious
to allow a user to select a subsequent portion of the same video content, thus
making the secondary content the primary content” (Ans. 32).
We agree with the Examiner’s conclusion and underlying findings of
fact. As explained supra with respect to claim 1, the combination of
Omoigui, Taylor, and Dagtas teaches dividing content into different
segments and transmitting the different segments sequentially. Moreover,
Hazra discloses that “the identities of the primary and secondary sources are
switched or otherwise exchanged (i.e., the primary source becomes the
secondary source and vice versa)” (col. 8, ll. 50-53). In other words, upon
selection of a secondary content segment by the user, the secondary content
segment may be considered as the new primary content segment.
Accordingly, we find no error in the Examiner’s rejection of claims 19 and
25.
In support of their contention that the Examiner erred in rejecting
claims 20 and 26, Appellants set forth the same argument that they set forth
for claims 8 and 24 (App. Br. 11). In particularly, Appellants argue that the
combination of prior art references does not teach "identifying said
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secondary content segment as said primary content includes designating said
secondary content segment as primary content when said segment of
primary content is completely transmitted" (id.)
As explained supra with respect to claims 8 and 24, however, this
claim limitation would have been obvious in light of the teachings of the
prior art. Accordingly, we find no error in the Examiner’s rejection of claim
20 and 26.

DECISION
We affirm the Examiner’s decision rejecting claims 1-26 as being
unpatentable under 35 U.S.C. § 103(a).
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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