Ex Parte Zuckerman et al

Patent Trial and Appeal Board

Apr 11, 2014

12579817 (P.T.A.B. Apr. 11, 2014)

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.
12/579,817 10/15/2009 Gal Zuckerman 2299-19.747BS 9098
86636 7590 04/14/2014
BRUNDIDGE & STANGER, P.C.
2318 MILL ROAD, SUITE 1020
ALEXANDRIA, VA 22314
EXAMINER
CHAO, MICHAEL W
ART UNIT PAPER NUMBER
2492
MAIL DATE DELIVERY MODE
04/14/2014 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 GAL ZUCKERMAN and GIL THIEBERGER
____________

Appeal 2011-011377
Application 12/579,817
Technology Center 2400
____________

Before JENNIFER D. BAHR, JOHN C. KERINS, and
STEFAN STAICOVICI, Administrative Patent Judges.

STAICOVICI, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
Gal Zuckerman and Gil Thieberger (Appellants) appeal under 35
U.S.C. § 134 from the Examiner’s final decision rejecting claims 1-20. We
have jurisdiction over this appeal under 35 U.S.C. § 6(b).

CLAIMED SUBJECT MATTER
Claim 1 is illustrative of the claimed invention and reads as
follows:
1. A method for load-balancing fractional-storage CDN
servers and assembling devices, comprising:
pulling essentially concurrently, by an assembling device
using a fragment pull protocol, erasure-coded fragments
associated with segments of streaming content, from a set of
fractional-storage CDN servers;
each fragment pull request associated with a specific
segment;
each server configured to store erasure-coded fragments
but less than the minimum amount of erasure-coded fragments
needed to decode the stored erasure-coded fragments;
the total outgoing bandwidth of the servers divided by the
number of the servers is at least 100 times the total outgoing
bandwidth of the assembling devices divided by the number of
the assembling devices;
although each server have high outgoing bandwidth, the
set from which the assembling device is pulling the fragments
comprises multiple fractional-storage CDN servers;
occasionally, while pulling the fragments, identifying at
least one server from the set, but less than the entire set, which
is loaded to a degree requiring replacement; and
while continue to pull from the other servers in the set,
replacing, by the assembling device using the fragment pull
protocol, the identified server with at least one substitute
fractional-storage CDN server that is not loaded to the degree
requiring replacement and that is already serving multiple other
assembling devices with fragments;
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wherein during the replacement, substantially no server
undergoes outgoing fragment-delivery bandwidth variation of
more than 1%, resulting in system stability during multiple
replacement events.

REJECTIONS
The following rejections are before us for review:
I. The Examiner provisionally rejected claims 1, 11, and 19 under
the judicially created doctrine of obviousness-type double
patenting as being unpatentable over copending U.S.
Applications: 12/579,327 (independent claims 1, 8, and 15)
(now US 7,844,712 B2, iss. Nov. 30, 2010), 12/579,337
(independent claims 1, 9, and 16) (now US 7,853,710 B2, iss.
Dec. 14, 2010), 12/579,380 (independent claims 1, 7, and 14)
(now US 7,840,680 B2, iss. Nov. 23, 2010), 12/579,396
(independent claims 1, 13, and 15), 12/579,403 (independent
claims 1, 8, and 16), 12/579,408 (independent claims 1 and 12)
(now US 7,822,855 B2, iss. Oct. 26, 2010), 12/579,662
(independent claims 1, 11, and 17), 12/579,774 (independent
claims 1, 14, and 17), 12/580,129 (independent claims 1, 9, and
18), 12/580,166 (independent claims 1, 8, and 15), 12/580,200
(independent claims 1, 13, and 15), and 12/580,205
(independent claims 1, 11, and 20) (now US 7,822,869 B2, iss.
Oct. 26, 2010) 1.

1 The provisional obviousness double patenting rejections over
copending U.S. Applications 12/579,314, 12/579,375, 12/579,386,
12/579,904, 12/580,016, and 12/580,058 are moot because these applications
have been abandoned. See Ans. 36-37.
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II. The Examiner rejected claims 1-20 under 35 U.S.C. § 112, first
paragraph, as failing to comply with the written description
requirement.
III. The Examiner rejected claims 1-20 under 35 U.S.C. § 112,
second paragraph, as being indefinite.
IV. The Examiner rejected claims 1, 2, 6, 7, 11, and 17-19 under 35
U.S.C. § 103(a) as unpatentable over Li (US 7,174,385 B2, iss.
Feb. 6, 2007) and Weller (US 7,149,797 B1, iss. Dec. 12,
2006).
V. The Examiner rejected claims 3-5, 7, 8, 13-16, and 20 under 35
U.S.C. § 103(a) as unpatentable over Li, Weller, Wagner
(Wagner et al., Streaming of Scalable Video From Multiple
Servers Using Rateless Codes, IEEE, 1501-1504 (2006)), and
Bays (US 2002/0141343 A1, pub. Oct. 3, 2002).
VI. The Examiner rejected claim 9 under 35 U.S.C. § 103(a) as
unpatentable over Li, Weller, and Drougas (Drougas et al.,
Load Balancing Techniques for Distributed Stream Processing
Applications in Overlay Environments, 1-8 (2006)).
VII. The Examiner rejected claim 12 under 35 U.S.C. § 103(a) as
unpatentable over Li, Weller, and Official Notice.
VIII. The Examiner rejected claim 10 under 35 U.S.C. § 103(a) as
unpatentable over Li, Weller, and Wagner.

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SUMMARY OF DECISION
We AFFIRM.

ANALYSIS
Rejection I
Appellants argue that, “because the obviousness-type double patenting
rejection lacks the necessary claim identification and the necessary formal
obviousness analysis for each set of conflicting claims separately, the
Examiner failed to make a prima facie case of obviousness- type double
patenting. . . .” App. Br. 8.
Although we appreciate that the Examiner has identified the claims of
the co-pending U.S. applications by claim number, nonetheless, we note that
the Examiner has failed to make clear what are the differences between the
inventions defined by the conflicting claims and the reasons why a person
having ordinary skill in the art would conclude that the invention defined in
the claims at issue would have been an obvious variation of the invention
defined in the claims of the co-pending US applications. See Ans. 5-6.
Accordingly, for the foregoing reasons, we do not sustain Rejection I.

Rejection II
The Examiner found that the limitation “wherein during the
replacement, substantially no server undergoes outgoing fragment-delivery
bandwidth variation of more than 1%, resulting in system stability during
multiple replacement events,” recited in claims 1 and 11 (emphasis added),
is not supported by Appellants’ original disclosure. Ans. 14-15. The
Examiner further found that independent “[c]laim 19 discloses substantially
identical language.” Ans. 15.
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The fundamental factual inquiry is whether the specification conveys
with reasonable clarity to those skilled in the art that, as of the filing date
sought, Appellants were in possession of the invention as now claimed. See
Vas-Cath, Inc. v. Mahurkar, 935 F.2d 1555, 1563-64 (Fed. Cir. 1991). In
this case, Appellants point to page 32, lines 10-16 of the Specification as
describing an outgoing bandwidth of 0.04%. App. Br. 8-9. However, as the
Examiner noted, “[t]he clients[’] utilized bandwidth is not determinative of
server bandwidth variance” because “maintaining bandwidth invariance is a
much more complex and entirely removed problem than that what Appellant
has directed his invention towards.” Ans. 38. Appellants have not shown
error in the Examiner’s findings. Accordingly, Appellants’ Specification
does not reasonably convey to those skilled in the art that Appellants had
possession of the subject matter of independent claims 1, 11, and 19 as of
the filing date of the present application. Therefore, we sustain the rejection
of claims 1-20 under 35 U.S.C. § 112, first paragraph, for failing to comply
with the written description requirement.

Rejection III
The Examiner determined that: (1) claims 1, 11, and 19 are indefinite
because the usage of the terms “fractional storage CDN server” and “server”
is “ambiguous since it is unclear why a single type of element would have
two names unless it was intended to be separate” (see Ans. 15); (2) claims 4,
5, 10, and 15 are indefinite because they “contain a whereby clause which is
not limiting as it requires no steps” (see Ans. 16); (3) claims 13 and 19 are
indefinite because they include the phrase “source selection diversity” and
thus “attempt[] to incorporate an explicit definition” (see id.); and (4) claims
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14 and 16 are indefinite because the phrase “ ‘one of the lowest’ is a term of
degree” (see id.)(citation omitted). Appellants do not make any arguments
(see App. Br. 9-10) and thus have waived any argument of error. As such,
we summarily sustain the Examiner’s rejection of claims 1, 4, 5, 10, 11, 13-
16, and 19, as well as claims 2, 3, 6-9, 12, 17, and 18, which depend from
claims 1 and 11, as indefinite. See In re Berger, 279 F.3d 975, 984, 985
(Fed. Cir. 2002) (holding that the Board did not err in sustaining a rejection
under 35 U.S.C. § 112, second paragraph, when the applicant failed to
contest the rejection on appeal); MPEP § 1205.02, 8th ed., Rev. 8, July 2010
(“if a ground of rejection stated by the examiner is not addressed in the
appellant’s brief, that ground of rejection will be summarily sustained by the
Board.”).
The Examiner further determined that the recitation of “at least 100”
in claim 19 is indefinite. Ans. 16. The essence of the requirement under 35
U.S.C. § 112, second paragraph, is that the language of the claim must make
it clear what subject matter the claims encompass. In re Hammack, 427 F.2d
1378, 1380-1381 (CCPA 1970). In this case, we agree with Appellants that
using numbers prevents ambiguity in determining what is “many servers.”
App. Br. 10. By specifying a minimum numeric limitation, i.e., “at least
100,” the claim is merely broad, not ambiguous. See In re Johnson, 558
F.2d 1008, 1016 n.17 (CCPA 1977) (“breadth is not indefiniteness”)
(citation omitted). That is to say, it is clear what the numeric limitations are,
and no further detail is necessary to know the metes and bounds of the
claims. Accordingly, we do not agree that the phrase “at least 100” renders
claim 19 indefinite.
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The Examiner also determined that the term “essentially
concurrently,” as per claims 1 and 11, constitutes a term of degree. Ans. 16.
We are not persuaded by the Examiner’s position because as Appellants
have noted, “one of ordinary skill in the art of packet communication over
the Internet will understand that the Internet is not a real-time network.”
App. Br. 9.
Lastly, the Examiner determined that the limitation “wherein during
the replacement, substantially no server undergoes outgoing fragment-
delivery bandwidth variation of more than 1%, resulting in system stability
during multiple replacement events,” as per claims 1 and 11, is ambiguous
because it “is a consequence of performing a process rather than the process
itself.” Ans. 15. In response, Appellants refer to the explanation provided
with respect to the rejection under 35 U.S.C. § 112, first paragraph,
discussed supra. App. Br. 9. However, as noted above, Appellants’
explanation refers to utilized bandwidth, whereas the disputed limitation
refers to server bandwidth variance. Accordingly, because Appellants have
not shown error in the Examiner’s findings, we agree with the Examiner that
claims 1 and 11 are indefinite for the reasons set forth above.
In conclusion, for the foregoing reasons, we sustain the rejection of
claims 1-20 under 35 U.S.C. § 112, second paragraph, as being indefinite.

Rejection IV
The Examiner found that although Li discloses a system and method
for load-balancing a plurality of fractional-storage servers and assembling
devices, wherein each server holds only a portion of the media content being
requested by a client, Li fails to disclose “fractional-storage [CDN]
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servers,” as called for by each of independent claims 1, 11, and 19. Ans.
17-19. Thus, the Examiner then turned to Weller and found that Weller
discloses “CDN servers that store data not intended to be consumed.” Ans.
19. The Examiner concluded that it would have been obvious for a person
of ordinary skill in the art to use a content delivery network as taught by
Weller to accommodate the streaming media delivery of Li “in order to
allow for redundant and high bandwidth content delivery.” Ans. 19-20.
Appellants argue that, “Weller and Li contradict each other and
therefore cannot be combined for any purpose.” Reply Br. 8. According to
Appellants, because Li discloses that “the cached fragments are proportional
to the serving bandwidth,” the Examiner’s proposed combination with
“Weller’s high bandwidth CDN server should result in a NON fractional-
storage solution.” App. Br. 19.
Li discloses a peer-to-peer network system including a client 210 that
requests streaming media, a server 200 that initially originates the streaming
media, and a serving peer 220 “that serves the client [210] with a complete
or partial copy of the streaming media.” Li, col. 8, l. 62-col. 9, l. 2 and fig.
2. Li further discloses that because each individual peer 220 is not capable
of holding the entire streaming media content, in order to reduce the amount
of storage required, each of peers 220 “hold[s] a portion of the media that is
proportional to its serving bandwidth.” Li, col. 16, ll. 60-63 and col. 17, ll.
9-16. Thus, as noted by Appellants, each peer 220 in Li is allocated a
serving load (streaming media content) in proportion to its serving
bandwidth. Id, col. 26, ll. 23-25; see also Reply Br. 2.
Weller discloses a content delivery network having servers that
deliver content on behalf of a third party provider. Weller, col. 1, ll. 16-26.
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Thus, in contrast to Li, where each serving peer 220 holds only a portion of
the streaming media because of low bandwidth capability, the CDN servers
of Weller store the streaming media content, i.e., “best replica,” on a single
server due to high bandwidth capability. See Weller, col. 1, ll. 21-26. We
thus agree with Appellants that modifying the peer-to-peer network system
of Li to include the CDN servers of Weller would result in non-fractional
storage of the streaming media because CDN servers have the required
bandwidth needed for storing the entire streaming media content. See Reply
Br. 6. Therefore, providing the high bandwidth CDN servers of Weller to
the low bandwidth peer-to-peer network of Li would result in high
bandwidth capability and hence, a person of ordinary skill in the art would
not store media content in a fractional manner, as called for by each of
independent claims 1, 11, and 19.
In conclusion, for the foregoing reasons, we do not sustain the
rejection under 35 U.S.C. § 103(a) of independent claims 1, 11, and 19, and
their respective dependent claims 2, 6, 7, and 17, and 18 as unpatentable
over Li and Weller.

Rejections V-VIII
With respect to Rejections V-VIII, the Examiner’s use of the various
teachings of Wagner,2 Drougas,3 Bays4, and Official Notice,5 does not

2 The Examiner uses the teachings of Wagner to describe a “system for
selecting the optimal combination of servers to stream a rateless coding” and
“a rateless erasing scheme . . . with a limitless redundancy factor.” See Ans.
26, 33.
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remedy the deficiencies of Li and Weller, as described supra. See Ans. 26,
27, 32, and 33 (citing Wagner, sections 2 and 3); Ans. 26-27 (citing
Drougas, sections 2.1, 3, 3.1.3, and 3.2); Ans. 27 (citing Bays, paras. [0005],
[0041], [0043], [0060], and [0061]); and Ans. 33 (taking Official Notice).
As such, we do not sustain the rejections under 35 U.S.C. § 103(a) of
claims 3-5, 7, 8, 13-16, and 20 as unpatentable over Li, Weller, and
Wagner; of claim 9 as unpatentable over Li, Weller, and Drougas; of claim
10 as unpatentable over Li, Weller, and Wagner; and of claim 12 as
unpatentable over Li, Weller, and Official Notice.

SUMMARY
The Examiner’s decision to reject claims 1, 11, and 19 under the
judicially created doctrine of obviousness-type double patenting as being
unpatentable over copending U.S. Applications 12/579, 327, 12/579,337,
12/579,380, 12/579,396, 12/579,403, 12/579,408, 12/579,662, 12/579,774,
12/580,129, 12/580,166, 12/580,200, 12/580,205 is reversed.
The Examiner’s decision to reject claims 1-20 under 35 U.S.C. § 112,
first paragraph, for failing to comply with the written description
requirement, is affirmed.
The Examiner’s decision to reject claims 1-20 under 35 U.S.C. § 112,
second paragraph, as being indefinite, is affirmed.

3 The Examiner uses the teachings of Drougas to describe a peer-to-
peer system that selects peers with available resources to satisfy QoS
demands. See Ans. 32.
4 The Examiner uses the teachings of Bays to describe load balancing
of a network by routing analysis. See Ans. 27.
5 The Examiner takes Official Notice that “random assignment” or
“random selection” are well known in the art of load balancing. Ans. 33.
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The Examiner’s decision to reject claims 1, 2, 6, 7, 11, and 17-19
under 35 U.S.C. § 103(a) as unpatentable over Li and Weller is reversed.
The Examiner’s decision to reject claims 3-5, 7, 8, 13-16, and 20
under 35 U.S.C. § 103(a) as unpatentable over Li, Weller, Wagner, and Bays
is reversed.
The Examiner’s decision to reject claim 9 under 35 U.S.C. § 103(a) as
unpatentable over Li, Weller, and Drougas is reversed.
The Examiner’s decision to reject claim 10 under 35 U.S.C. § 103(a)
as unpatentable over Li, Weller, and Wagner is reversed.
The Examiner’s decision to reject claim 12 under 35 U.S.C. § 103(a)
as unpatentable over Li, Weller, and Official Notice is reversed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED

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