Layer3 TV, Inc.Download PDFPatent Trials and Appeals BoardOct 4, 20212020002180 (P.T.A.B. Oct. 4, 2021) 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. 14/628,200 02/20/2015 Jeffrey BINDER TMO0006.USU1 4911 154568 7590 10/04/2021 T-Mobile c/o Brownstein Hyatt Farber Schreck 410 17th STREET SUITE 2200 DENVER, CO 80202 EXAMINER MONTOYA, OSCHTA I ART UNIT PAPER NUMBER 2421 NOTIFICATION DATE DELIVERY MODE 10/04/2021 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): PatentDocket@BHFS.COM PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JEFFREY BINDER, LINDSAY GARDNER, and CHARLES A HASEK IV Appeal 2020-002180 Application 14/628,200 Technology Center 2400 Before ALLEN R. MACDONALD, JEAN R. HOMERE, and MICHAEL J. STRAUSS, Administrative Patent Judges. STRAUSS, Administrative Patent Judge. Appeal 2020-002180 Application 14/628,200 2 DECISION ON APPEAL STATEMENT OF THE CASE1 Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the Examiner’s decision to reject claims 1–20. Claims App. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. CLAIMED SUBJECT MATTER According to Appellant, the claims relate to “managing network delivery of media content to a client device and, more particularly, to processing a scheduler service request to determine to deliver to the user at least one asset . . . so as to conserve bandwidth of the content delivery network.” Abstract. Claim 1, reproduced below with bracketed claim element labels added, is illustrative of the claimed subject matter: 1. A method for managing a transmission of media content over an access link between a requesting device and a source in a content delivery network (CDN), the method comprising: [(i)] receiving a service request from the requesting device for delivery of the media content; [(ii)] processing the service request by determining user behavior with respect to previously accessed content; 1 In this Decision, we refer to Appellant’s Appeal Brief (“Appeal Br.,” filed November 15, 2019); Reply Brief (“Reply Br.,” filed January 23, 2020), the Final Office Action (“Final Act.,” mailed May 1, 2019), the Examiner’s Answer (“Ans.,” mailed December 12, 2019); and the Specification (“Spec.,” filed February 20, 2015). Rather than repeat the Examiner’s findings and Appellant’s contentions in their entirety, we refer to these documents. 2 Appellant refers to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as Layer3 TV, Inc. Appeal Br. 3. Appeal 2020-002180 Application 14/628,200 3 [(iii)] when bandwidth utilization is high at a time the service request is received, determining whether the user behavior indicates a user is likely to wait to access the media content until a future time; [(iv)] when the bandwidth utilization is high and it is determined that the user behavior indicates the user is likely to wait to access the media content until the future time, delaying delivery of the media content until the bandwidth utilization is lower; [(v)] identifying the media content of the service request; [(vi)] scheduling the delivery of the media content at a predetermined time wherein the delivery of the media content is prioritized to reduce traffic over the CDN; [(vii)] delivering the media content at the predetermined time; and [(viii)] storing the media content in storage located in the requesting device. REFERENCES AND REJECTIONS The Examiner relies upon the following references: Name3 Reference Published Filed Rodriguez US 2003/0005454 Al Jan. 2, 2003 June 29, 2001 Yim US 2006/0047346 Al Mar. 2, 2006 Aug. 25, 2005 Dankberg US 2014/0164586 Al June 12, 2014 Jan. 4, 2013 Ruffini US 2015/0237384 Al Aug. 20, 2015 Feb. 17, 2014 Naik Raikar US 2016/0381417 Al Dec. 29, 2016 Aug. 29, 2016 The Examiner rejects: a. claims 1–3, 5–16, and 20 under 35 U.S.C. § 103 as obvious over the combined teachings of Rodriguez and Ruffini (Final Act. 3–9); 3 All reference citations are to the first named inventor only. Appeal 2020-002180 Application 14/628,200 4 b. claim 4 under 35 U.S.C. § 103 as obvious over the combined teachings of Rodriguez, Ruffini, and Yim (id. at 9); c. claim 17 under 35 U.S.C. § 103 as obvious over the combined teachings of Rodriguez, Ruffini, and Dankberg (id. at 9–10); and d. claims 18 and 19 under 35 U.S.C. § 103 as obvious over the combined teachings of Rodriguez, Ruffini, and Naik Raikar (id. at 10–11). We review the appealed rejections for error based upon the issues identified by Appellant, and in light of the contentions and evidence produced thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential). The Examiner and Appellant focus their findings and contentions on claim 1 (see Appeal Br. 4–12; Ans. 2–9); so do we. Arguments not made are forfeited.4 Unless otherwise indicated, we adopt the Examiner’s findings in the Final Office Action and the Answer as our own and add any additional findings of fact for emphasis. We address the rejections below. ANALYSIS As noted above, the Examiner rejects claim 1 as obvious over the combined teachings of Rodriguez and Ruffini. Final Act. 3–5. In particular, the Examiner finds Rodriguez’s disclosure of a recordable media content 4 See In re Google Tech. Holdings LLC, 980 F.3d 858, 863 (Fed. Cir. 2020) (“We interpret the Patent Office to be arguing that Google’s failure to raise its lexicography arguments, inadvertent or not, compels a finding of forfeiture.”); 37 C.F.R. § 41.37(c)(1)(iv) (2018) (“Except as provided for in §§ 41.41, 41.47 and 41.52, any arguments or authorities not included in the appeal brief will be refused consideration by the Board for purposes of the present appeal.”). Appeal 2020-002180 Application 14/628,200 5 archiving system in a subscriber network teaches or suggests the majority of limitations recited in claim 1. Id. at 3–4 (citing Rodriguez ¶¶ 47, 52, 58, 60, 69, 73–75, 88–92, 98–105, Figs. 21–27). The Examiner finds, however, Rodriguez is silent about claim 1’s elements (ii) through (iv) (i.e., the missing or “disputed limitations”). Id. at 4. Nevertheless, the Examiner finds Ruffini’s disclosure of the temporary storage of recorded content on a cloud storage server wherein content is downloaded to a user “at an off-peak time, a time corresponding to when the user is likely to view the content, and/or at some other time” (Ruffin ¶ 41) teaches or suggests the missing limitations of claim elements (iii) through (v). Id. (citing Ruffini ¶¶ 12–17, 19, 34, 39, 40–45, 51, 61, Figs. 1, 4). The Examiner finds it would have been obvious to modify Rodriguez’s media transmission method to incorporate Ruffini’s (1) user service request during high bandwidth utilization, (2) determination of when a user is likely to use the content, and (3) delay of content delivery until bandwidth utilization is lower because monitoring of user behavior provides “the benefit of providing the media when needed [by the user].” Id. at 5. Appellant contends the Examiner errs in rejecting claim 1, arguing (1) the combination of references is improper because (a)“there is no motivation to combine Rodriguez and Ruffini” (Appeal Br. 6); (b) “Rodriguez forces the user to specify a content access time, thus eliminating any need or ability to make the claimed determination [of a likelihood that a user will wait to access the media content]” (id. at 7); (c) “in the cited combination, download of the media item at the time specified by the user is entirely set by the time the user specifies and is in no way conditional on the bandwidth being high when the request is received, user behavior, or bandwidth utilization levels” Appeal 2020-002180 Application 14/628,200 6 (id. at 7–8); (2) Ruffin fails to teach claim 1’s element (iii) (id. at 8); and (3) “Ruffini does not have embodiments that combine . . . offload criteria to offload an item of content at an off-peak time when the user’s viewing history indicates that they are likely to access the item of content” as recited by claim element (iv) (id. at 9). We address Appellant’s contentions of error as follows. Propriety of the Combination Appellant contends, “Rodriguez already provides media when needed because the user is able to choose when the media is delivered” such that there is no reason to modify Rodriguez to incorporate Ruffini’s monitoring of user behavior for the Examiner’s stated reason of providing media when needed. Id. at 6 (citing Rodriguez ¶ 88). Appellant argues “[p]ut another way, there is no motivation to modify a reference when the reference already accomplishes the goal that is the basis for the alleged motivation.” Id. Appellant further argues, because “Rodriguez monetizes user choices in order to deliver media sooner than it would otherwise be delivered,” i.e., charges the user a premium for an earlier download, “[m]odifying Rodriguez with Ruffini as suggested by the Examiner would remove this capability [and thereby] cripple Rodriguez’s stated purpose [such that] Rodriguez . . . teaches away from any such combination.” Id. at 6, 7. The Examiner responds, explaining “modifying Rodriguez with Ruffini will provide the ability of monitoring user behavior for the benefit of providing the media when needed, meaning when the media will actually be consumed not when it is purchased as taught by Rodriguez.” Ans. 4. The Examiner responds to Appellant’s teaching away argument, as follows: Appeal 2020-002180 Application 14/628,200 7 [T]he test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. Id. (citing In re Keller, 642 F.2d 413 (CCPA 1981)). Appellant’s contention is unpersuasive of reversible Examiner error. Paragraph 88 of Rodriguez cited by Appellant describes limiting content downloading during peak-time periods and that “[o]n the other hand, off- peak-time periods may feature unused bandwidth capacity intended for other services that can be repossessed for downloading of PRM content.” Thus, contrary to Appellant’s argument, rather than simply delivering content at a time chosen by the user, Rodriguez contemplates varying download timing to accommodate bandwidth consumption during peak and off-peak time periods. We are also unpersuaded the combination is improper even if, as asserted by Appellant, “[Rodriguez’s] user is able to choose when the media is delivered” so that, according to Appellant, there is no reason to use Ruffin’s monitoring of user behavior to provide media when needed by the user. Appeal Br. 6. In particular, the Examiner finds the reason to modify Rodriguez according to the teachings of Ruffini is “for the benefit of providing the media when needed” (Final Act. 5) instead of when ordered. Appellant fails to address the Examiner’s finding that the reason to modify Rodriguez to use a Ruffini’s delivery method to provide a need-based delivery method. Appeal 2020-002180 Application 14/628,200 8 We also find unpersuasive Appellant’s argument that the modification would remove monetization opportunities that would “cripple Rodriguez’s stated purpose.” Appeal Br. 7. Rodriguez discloses that a problem addressed by the described system is in connection with the management of media content. Rodriguez ¶ 4. Rodriguez does describe an embodiment wherein “[t]he price assigned to each available download option may depend on a number of factors” including, inter alia, “the amount of time that the subscriber has to wait until the downloading operation starts.” Rodriguez ¶ 101. However, Appellant provides insufficient evidence that the argued premium that might be charged for faster delivery of content is a stated goal or would otherwise frustrate the intended purpose of Rodriguez. To the extent any inference can be drawn that, in an embodiment, one factor to be considered in pricing a download is how quickly the download is to be provided, the only purpose of doing so would be to optionally accommodate the increased cost of using more bandwidth, and doing so is not required to accomplish the goal of provisioning media according to Rodriguez. Furthermore, Appellant fails to persuade us that charging a premium for a faster download is incompatible with or precludes also providing content when needed according to Ruffini. As explained by the Examiner, Appellant’s argument is based on a wholesale incorporation or combination of structures, rather than what the combined teachings of Rodriguez and Ruffini fairly teaches or suggests. Ans. 4 (citing Keller, 642 F.2d at 425). That is, the skilled artisan is not compelled to follow blindly the teachings of one reference over those of another “without the exercise of independent judgment.” Lear Siegler, Inc. v. Aeroquip Corp., 733 F.2d 881, 889 (Fed. Cir. 1984). Furthermore, the skilled artisan would “be able to fit the Appeal 2020-002180 Application 14/628,200 9 teachings of multiple patents together like pieces of a puzzle” because the skilled artisan is “a person of ordinary creativity, not an automaton.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 420–21 (2007). Furthermore, we note that the Federal Circuit has recognized when a proposed modification of a reference may impede some of its functionality, a combination of references is still proper. Medichem, S.A. v. Rolabo, S.L., 437 F.3d 1157, 1165 (Fed. Cir. 2006) (“[A] given course of action often has simultaneous advantages and disadvantages, and this does not necessarily obviate motivation to combine”). Here, incorporating the teachings of Ruffini into Rodriguez would bring advantages regarding timing a download to provide the media when needed. For the reasons discussed above, we are unpersuaded of reversible Examiner error by Appellant’s arguments that the combination of Rodriguez and Ruffini is improper. Instead, we find the Examiner has articulated reasoning with rational underpinnings sufficient to justify the legal conclusion of obviousness. Claim Element (iii) Appellant contends the Examiner’s characterization of Ruffini’s teaching does not track the language of claim 1’s element (iii) reciting, when bandwidth utilization is high at a time the service request is received, determining whether the user behavior indicates a user is likely to wait to access the media content until a future time. Appeal Br. 8. Appellant argues Ruffini’s disclosure of “‘At peak hours’ is merely a general time when bandwidth utilization is high, not a time that bandwidth utilization is high when a service request is received.” Id. Appellant further argues Ruffini’s disclosure that Appeal 2020-002180 Application 14/628,200 10 “user behavior indicates the user is likely to wait to access the media content until a future time” is not determined conditionally upon bandwidth utilization being high at the time the service request is received as required by independent claim 1 and thus would not avoid performing such a computationally expensive task when the condition has not occurred. Id. at 8–9. The Examiner responds as follows: Rodriguez teaches when bandwidth utilization is high and the user request indicates a user is likely to wait to access the media content until a future time, delaying delivery of the media content until the bandwidth utilization is lower (paragraph 88), meeting the claim language. And Ruffini discloses when at peak hours and the user behavior indicates the user is likely to wait to access the media content until a future time, delaying delivery of the media content until off-peak hours (figure 1 and 4, paragraph 12- 17, 19, 34, 39, 40-45, 51 and 61), further meeting the claim language. Ans. 5. Appellant’s contention is unpersuasive of reversible Examiner error. During examination, pending claims are given their broadest reasonable interpretation consistent with the Specification. In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). Under the broadest reasonable interpretation standard, claim terms are given their ordinary and customary meaning as would be understood by one of ordinary skill in the art in the context of the entire disclosure. In re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007). During examination, when claims can be readily amended, ambiguities should be recognized, scope and breadth of language explored, and clarification imposed. See In re Zletz, 893 F.2d 319, 321 (Fed. Cir. 1989). Construing claims broadly during prosecution is not unfair to the applicant because the applicant has the opportunity to amend the claims to Appeal 2020-002180 Application 14/628,200 11 obtain more precise claim coverage. Am. Acad. of Sci. Tech Ctr., 367 F.3d at 1364. Claim 1’s element (iii) recites an action to be performed when a condition is satisfied but does not preclude performing the action in the absence of the stated condition. That is, a determination of whether user behavior indicates a user is likely to wait to access the media content until a future time is to be performed at least when bandwidth utilization is high at a time the serve request is received. However, this is no requirement that the determination be performed only when those conditions exist. That is, contrary to Appellant’s argument, the determination is not conditional such that it only occurs if and only if the recited conditions are satisfied. Even if otherwise, because one skilled in the art would understand there would be a need to delay media content delivery only when bandwidth utilization is high, we find that the combination of Rodriguez and Ruffini at least suggests performing those actions required to address high bandwidth utilization problems by delaying media content delivery, including determining whether a user is likely to wait to access the media content, only when the problematic high bandwidth condition exists, i.e., when the problem to be solved is present. Thus, we are unpersuaded the combination of Rodriguez and Ruffini fails to teach or suggest claim 1’s element (iii). The Combination of Content Delivery Timing Criteria Appellant argues as follows: Ruffini states that in various embodiments an item of content may be offloaded based on an off-peak time offload criteria and that an item of content may be offloaded based on a user’s viewing history indicating they are likely to access the item of content offload criteria. . . . However, Ruffini does not have embodiments that combine these offload criteria to offload an Appeal 2020-002180 Application 14/628,200 12 item of content at an off-peak time when the user’s viewing history indicates that they are likely to access the item of content. Ruffini does not even contemplate embodiments that combine these separate offload criteria in this fashion. These are alternatives to one another in Ruffini. One of skill in the art would never combine alternatives. If anything, there is a teaching away. Appeal Br. 9 (citations omitted). The Examiner responds, finding “the whole [of the] Ruffini reference clearly combines these different criteria including off peak hours and viewing history, meeting the claim language.” Ans. 5 (citing Ruffini ¶¶ 15, 34, 39, and 43–47). Appellant’s contention is unpersuasive of reversible Examiner error. Ruffini includes multiple disclosures of the argued criteria both separately and combined as required by claim 1, as follows: The cloud storage server may identify criteria under which the content should be provided to the user device (e.g., when the user is likely to access the content, . . . , etc.). Ruffini ¶ 12. In some implementations, the criteria may correspond to when the user is likely to access the content, based on the user’s viewing history [and viewing preferences]. Ruffini ¶ 17. Additionally, or alternatively, cloud storage server 230 may provide the content for storage on user device 210 at an off-peak time and/or when a user is likely to request the content. Ruffini ¶ 19 (emphasis added) [T]the unique copy of the content may be temporarily stored by cloud storage server 230 for the user until the unique copy of the content should be offloaded (e.g., at an off-peak time, a time corresponding to when the user is likely to view the content, and/or at some other time). Ruffini ¶ 41 (emphasis added) Appeal 2020-002180 Application 14/628,200 13 Thus, by use of the conjunctive “and” in the alternative to the disjunctive “or” Ruffini teaches or suggests delaying media content delivery based on both high bandwidth utilization and when the user is likely to view or access the content. For the reasons discussed above, Appellant’s arguments are unpersuasive of reversible Examiner error. Accordingly, we sustain the Examiner’s rejection of independent claim 1. Because Appellant does not argue separately independent claims 9 and 12,5 we further sustain the rejection of those claims. We further sustain the rejections of dependent claims 2–8, 10, 11, and 13–20 which are also not argued separately with particularity. DECISION The Examiner does not err in rejecting: a. claims 1–3, 5–16, and 20 under 35 U.S.C. § 103 as obvious over the combined teachings of Rodriguez and Ruffini; b. claim 4 under 35 U.S.C. § 103 as obvious over the combined teachings of Rodriguez, Ruffini, and Yim; c. claim 17 under 35 U.S.C. § 103 as obvious over the combined teachings of Rodriguez, Ruffini, and Dankberg; and d. claims 18 and 19 under 35 U.S.C. § 103 as obvious over the combined teachings of Rodriguez, Ruffini, and Naik Raikar (id. at 10–11). Thus, on this record, claims 1–20 are not patentable. 5 Merely restating with respect to a second claim an argument, previously presented with respect to a first claim, is not an argument for separate patentability of the two claims. See 37 C.F.R. § 41.37(c)(1)(iv). Appeal 2020-002180 Application 14/628,200 14 CONCLUSION We affirm the Examiner’s rejections of claims 1–20. DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–3, 5–16, 20 103 Rodriguez, Ruffini 1–3, 5–16, 20 4 103 Rodriguez, Ruffini, Yim 4 17 103 Rodriguez, Ruffini, Dankberg 17 18, 19 103 Rodriguez, Ruffini, Naik Raikar 18, 19 Overall Outcome 1–20 TIME PERIOD FOR RESPONSE No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED Copy with citationCopy as parenthetical citation