Raymond Drewry et al.

Patent Trials and Appeals Board

Feb 9, 2022

2020006755 (P.T.A.B. Feb. 9, 2022)

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. 13/190,466 07/25/2011 Raymond Drewry 102005.022184 2203 71581 7590 02/09/2022 BakerHostetler / Comcast 1735 Market Street Suite 3300 Philadelphia, PA 19103-7501 EXAMINER WALSH, JOHN B ART UNIT PAPER NUMBER 2451 NOTIFICATION DATE DELIVERY MODE 02/09/2022 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): eofficemonitor@bakerlaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte RAYMOND DREWY, MARK VICKERS, BRIAN BULKOWSKI, WEIDONG MAO, and DAVID M. LEONARD Appeal 2020-006755 Application 13/190,466 Technology Center 2400 Before JEAN R. HOMERE, JEREMY J. CURCURI, and JON M. JURGOVAN, Administrative Patent Judges. HOMERE, Administrative Patent Judge. DECISION ON APPEAL I. STATEMENT OF THE CASE1 Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the Examiner’s decision to reject claims 1, 4, 15, 18, 76, 79, 80, 90-92, and 95- 106. See Appeal Br. 2. Claims 2, 3, 5-14, 16, 17, 19-75, 77, 78, 81-89, 93, and 94 are cancelled. Id. We have jurisdiction under 35 U.S.C. § 6(b). 1 We refer to the Specification, filed July 25, 2011 (“Spec.”); the Non-Final Office Action, mailed June 27, 2019 (“Non-Final Act.”); the Appeal Brief, filed April 2, 2020 (“Appeal Br.”); the Examiner’s Answer, mailed July 28, 2020 (“Ans.”); and the Reply Brief, filed September 28, 2020 (“Reply Br.”). 2 “Appellant” refers to “Applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies Comcast Cable Communications, LLC as the real party in interest. Appeal Br. 1. Appeal 2020-006755 Application 13/190,466 2 We AFFIRM. II. CLAIMED SUBJECT MATTER According to Appellant, the claimed subject matter relates to a method and system for predicting website usage at each of plurality of nodes within a communication network to schedule a broadcast data stream based on collected usage statistics. Spec. 1:5-7. Figure 4B, reproduced below, is useful for understanding the claimed subject matter: Appeal 2020-006755 Application 13/190,466 3 Figure 4B above depicts a communications network including nodes (200, 220), each containing usage estimator 1000 for estimating website usage based on the number of hits/requests received from client devices (102, 104, 106, 112, 114-116). Upon determining that the usage estimate satisfies a predetermined threshold, the relevant node (200) instructs broadcast data Appeal 2020-006755 Application 13/190,466 4 source (320) to stream the requested content to client devices (102, 104, 106, 112, 114-16). Spec. 15:21-17:6, 20:10-17. Claims 1, 15, and 99 are independent. Claim 15, with disputed limitations emphasized, is illustrative: 15. A method comprising: determining, by each of a plurality of nodes in a network, a quantity of requests for content; determining, based at least in part on the quantity of requests for the content determined by each of the plurality of nodes, a usage estimate for the content; determining that the usage estimate for the content satisfies a threshold; and sending, to a user device, based on a request from the user device for the content, and based on determining that the usage estimate for the content satisfies the threshold, a direction to receive the content from a transmitting device configured to transmit the content for a plurality of user devices. Appeal Br. 10-11 (Claims App.) (emphasis added). III. REFERENCES The Examiner relies upon the following references as evidence.3 Name Reference Date DeBettencourt US 6,279,001 B1 Aug. 21, 2001 Colby US 6,625,643 B1 Sept. 23, 2003 Lyke US 6,836,783 B1 Dec. 28, 2004 3 All reference citations are to the first named inventor only. Appeal 2020-006755 Application 13/190,466 5 Ahuja US 6,981,055 B1 Dec. 27, 2005 Hunter US 2006/0229904 A1 Oct. 12, 2006 IV. REJECTIONS The Examiner rejects claims 1, 4, 15, 18, 76, 79, 80, 90-92, and 95- 106 as follows: Claims 15, 18, and 98 stand rejected under 35 U.S.C. § 102(b) as anticipated by DeBettencourt. Non-Final Act. 2-5. Claims 1, 76, 79, 80, 90, 91, 95, 97, 99, 100, and 102-106 stand rejected under 35 U.S.C. § 103(a) as unpatentable over the combined teachings of DeBettencourt and Colby. Id. at 5-12. Claims 4 and 101 stand rejected under 35 U.S.C. § 103(a) as unpatentable over the combined teachings of DeBettencourt, Colby, and Ahuja. Id. at 13-14. Claim 92 stands rejected under 35 U.S.C. § 103(a) as unpatentable over the combined teachings of DeBettencourt, Colby, and Hunter. Id. at 14- 15. Claims 96 stands rejected under 35 U.S.C. § 103 (a) as unpatentable over the combined teachings of DeBettencourt, Colby, and Lyke. Id. at 15- 16. V. ANALYSIS We consider Appellant’s arguments seriatim, as they are presented in the Appeal Brief, pages 3-8 and the Reply Brief, pages 1-5.4 We are 4 We have considered in this Decision only those arguments Appellant actually raised in the Briefs. Arguments not made are forfeited. See 37 C.F.R. § 41.37(c)(1)(iv) (2017). Appeal 2020-006755 Application 13/190,466 6 unpersuaded by Appellant’s contentions. Except as otherwise indicated herein below, we adopt as our own the findings and reasons set forth in the Non-Final Action, and the Examiner’s Answer in response to Appellant’s Appeal Brief.5 Non-Final Act. 2-17; Ans. 3-9. However, we highlight and address specific arguments and findings for emphasis as follows. 1. Anticipation Rejection Appellant argues that the Examiner errs in finding that DeBettencourt anticipates claim 15. Appeal Br. 3-5. In particular, Appellant argues that DeBettencourt does not describe a node determining a usage estimate for content thereon based on the quantity of content requests received at the node, wherein the usage estimate satisfies a threshold, as recited in independent claim 15. Id. According to Appellant, although DeBettenbourt’s system monitors events including predictions or thresholds indicating impending crises stemming from web page traffic overload, DeBettencourt does not explain how the predictions are determined, much less that they are determined based on web page traffic/usage. Id. at 3-4 (citing DeBettencourt 3:46-53). Further, Appellant argues that DeBettencourt compares the “high limit” or threshold to the actual load as opposed to a prediction thereof. Id. at 5 (citing DeBettencourt 17:37-46). Additionally, Appellant submits that DeBettencourt’s disclosure of comparing a specified threshold to an average 5 See ICON Health and Fitness, Inc. v. Strava, Inc., 849 F.3d 1034, 1042 (Fed. Cir. 2017) (“As an initial matter, the PTAB was authorized to incorporate the Examiner’s findings.”); see also In re Brana, 51 F.3d 1560, 1564 n.13 (Fed. Cir. 1995) (upholding the PTAB’s findings, although it “did not expressly make any independent factual determinations or legal conclusions,” because it had expressly adopted the examiner’s findings). Appeal 2020-006755 Application 13/190,466 7 total time (i.e., average processing time + average queuing time) as opposed to the usage estimate does not cure the noted deficiencies of Bettencourt. Id. (citing DeBettencourt 25:22-29). More particularly, in response to additional findings made by the Examiner in the Answer, Appellant argues the following: DeBettencourt describes that a load value can be based on various metrics that indicate load and the ability of web servers to process requests. See DeBettencourt at col. 24, lines 36-38. Data from agents is collected and load information is periodically calculated. See DeBettencourt at col. 24, lines 38-41. The collected data can include, for example, a number of requests received by the agents or a number of requests which generated an error because of web server errors, among others. See DeBettencourt at col. 24, lines 42-57. As such, DeBettencourt explains that the load value can be a collection of requests. However, DeBettencourt does not explain that this collection of requests, or load value, is then used to determine any other value, such as a usage estimate. It is unsurprising then, that DeBettencourt describes that the load value is itself compared to a first threshold for which the web server is considered heavily loaded, and/or to a second threshold for which the web server is under maximum load. See DeBettencourt at col. 25, lines 13-22. The Examiner's Answer then points to the present application in an attempt to interpret the term “usage estimate.” See Examiner's Answer at page 4. Specifically, the Examiner's Answer states that the “Appellant's own ‘estimate’ is based upon actual number of requests which can be described as a ‘load’ within the computer networking art.” See Examiner’s Answer at page 4. Although Appellant does not agree that one instance of the term “usage estimate” in the present application can be properly used to interpret the term, any interpretation of the term does not change the Appeal 2020-006755 Application 13/190,466 8 fact that DeBettencourt does not determine any variable, much less a usage estimate, based on the load value. Reply Br. 2. Appellant’s arguments are not persuasive of reversible Examiner error. As an initial matter, we note that the disputed claim language “usage estimate” must be given its broadest reasonable interpretation consistent with Appellant’s disclosure, as explained in Morris: [T]he PTO applies to the verbiage of the proposed claims the broadest reasonable meaning of the words in their ordinary usage as they would be understood by one of ordinary skill in the art, taking into account whatever enlightenment by way of definitions or otherwise that may be afforded by the written description contained in the applicant’s [S]pecification. In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997); see also In re Zletz, 893 F.2d 319, 321 (Fed. Cir. 1989) (Stating that “claims must be interpreted as broadly as their terms reasonably allow.”). Our reviewing court states, “the proper . . . construction is not just the broadest construction, but rather the broadest reasonable construction in light of the [S]pecification.” In re Man Mach. Interface Techs. LLC, 822 F.3d 1282, 1287 (Fed. Cir. 2016). Our reviewing court further states, “the ‘ordinary meaning’ of a claim term is its meaning to the ordinary artisan after reading the entire patent.” Phillips v. AWH Corp., 415 F.3d 1303, 1321 (Fed. Cir. 2005) (en banc). In this case, Appellant’s Specification recites in relevant parts the following: In Figure 5, estimating client web site usage means 1000 receives information via path 500 from client packet receiver 264, which identifies client hits on web sites and their URLs. From this information, an estimate of at least one web site's usage is determined based upon its URL. This estimate is sent to at least one of the Appeal 2020-006755 Application 13/190,466 9 following: integrating means 1400 and/or to network management interface 278, to be forwarded to means 1400 and/or means 1600, located elsewhere. Spec. 17:9-15 (emphasis added). The hit-count is determined within a first a time-interval to create a URL-hit-count within the first time-interval for a UAL. Arrow 1034 directs execution from operation 1032 to operation 1036. Operation 1032 terminates the operations of this flowchart. … Operation 1042 performs the step of estimating the usage of the URL based upon the URL-hit-count within the first time-interval to create a usage estimate for the URL. Id. at 20:10-17 (emphasis added). As correctly noted by the Examiner, the cited portions of Appellant’s Specification indicate that “usage estimate” refers to the number of hits or requests received at a website within a predetermined time period. Ans. 4 (citing Spec. ¶ 107). Thus, while Appellant argues that “usage estimate” refers to a predictive value as opposed to an actual value indicating requests submitted to website, we find no support for such an interpretation of the cited phrase in the Specification. Accordingly, we adopt the Examiner’s broadest reasonable interpretation of the disputed phrase “usage estimate” consistent with the Specification to refer to data indicating the number of hits or requests received at a web server during a predetermined time period. Id. DeBettencourt discloses a web service system for balancing web page request service load among web servers by redirecting requests from web servers with too many requests to web servers with fewer requests. Appeal 2020-006755 Application 13/190,466 10 DeBettencourt, Abstract, col. 3: 41-51, 6:52-7:5, 16:47-56. In particular, DeBettencourt discloses monitoring specific events including predictions or thresholds indicating an impending crisis at a particular web server. Id. at 3:51-53. Further, DeBettencourt discloses determining a dynamic load value to indicate the ability of a web server to process a load. Id. at 24:35-38. According to DeBettencourt, a manager collects periodically data from agents regarding each web server including the number of requests received, the total processing time required to service the requests, the amount of time spent waiting in the queue, and subsequently uses the collected data to calculate the relative measure of the web server load. Id. at 24:39-53. For example, the manager uses the collected data to compute an average processing time required to process each request such that an average of the total processing times of all requests made during a sample period can be compared to determine the dynamic load value. Id. at 24:58-65. Further, DeBettencourt describes comparing the dynamic load value to a threshold to determine whether the server associated therewith is under maximum load. Id. at 25: 13-22. Upon determining that the average total time is greater than a predetermined threshold, the manager considers the load of the web server to be excessive, and may direct requests from the web server. Id. at 26:22- 26. Consistent with our claim construction above, we agree with the Examiner that DeBettencourt’s disclosure of determining for a website a “dynamic load value” based on the number of requests received at a website during a specific period describes computing the “usage estimate” for content at a node within a specific period. Ans. 4-5. That is, because both the disclosed “dynamic load value” and the claimed “usage estimate” relate Appeal 2020-006755 Application 13/190,466 11 to a relationship between the number of hits or requests received at a web server within a time period, they are functionally equivalent. Likewise, we agree with the Examiner that DeBettencourt’s disclosure of comparing the “dynamic load value” associated to a website to a threshold to determine whether load of the website is too high describes comparing the “usage estimate” to a threshold. Id. at 5. Because we are not persuaded of Examiner error, we sustain the Examiner’s rejection of claim 1 as anticipated by DeBettencourt. Regarding the rejection of claims 18 and 98, Appellant either does not present separate patentability arguments or reiterates substantially the same arguments as those discussed above for the patentability of claim 15. As such, claims 18 and 98 fall therewith. See 37 C.F.R. § 41.37(c)(1)(iv). 2. Obviousness Rejections Regarding claim 1, Appellant reiterates substantially the arguments previously submitted for patentability of claim 15. Appeal Br. 6. As discussed above, these arguments are not persuasive. Further, Appellant argues that one of ordinary skill in the art would not have combined the cited references because Colby’s disclosure of manually initiating a broadcast transmission according to a preset schedule so as to reach large audiences would not be useful to DeBettencourt’s system of balancing load request between web servers when a usage estimate satisfies a thresholds because DeBettencourt’s transmission reaches a large audience as well. Appeal Br. 6-7 (citing Colby 24:59-67, 27:21-26); Reply Br. 5-6. Accordingly, Appellant submits there is insufficient rationale, absent impermissible hindsight reasoning, for the proposed combination of DeBettencourt and Colby. Appeal Br. 7. Appeal 2020-006755 Application 13/190,466 12 Appellant’s arguments are not persuasive of reversible Examiner error. The Examiner relies upon DeBettencourt for its teaching of balancing request for content among web servers, which are optimized to individually deliver requested content to authorized users. Ans. 7 (citing DeBettencourt 16:56-17: 8). Further, the Examiner relies upon Colbert for its teaching of managing broadcast delivery of content to a large number of users. Id. (citing Colby 2:59-62, 3:10-21). The Examiner then concludes the following: Thus, it would have been obvious to one of ordinary skill in the art to provide the system of DeBettencourt, with broadcast delivery, as taught by Colby (which is from the same field of endeavor), in order to provide a response, via broadcast delivery, to more easily reach those multiple users and to make the content accessibility more efficient (see Colby, at least col. 3, lines 3-6-control over how many people access stream ... quality of content/broadcast suffers as result of a degradation in performance of the server). Ans. 8. We find the Examiner’s proposed combination of the cited teachings of DeBettencourt and Colby is no more than a simple arrangement of old elements with each performing the same function it had been known to perform, yielding no more than what one would expect from such an arrangement. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). Therefore, the ordinarily skilled artisan, being “a person of ordinary creativity, not an automaton,” would have been able to fit the teachings of the cited references together like pieces of a puzzle to predictably result in a communications system that balances load requests between web servers to thereby schedule the broadcasting of requested content to authorized users. Appeal 2020-006755 Application 13/190,466 13 Id. at 420-21. Because Appellant has not demonstrated that the Examiner’s proffered combination would have been “uniquely challenging or difficult for one of ordinary skill in the art,” we agree with the Examiner that the proposed modification would have been within the purview of the ordinarily skilled artisan. See Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007) (citing KSR, 550 U.S. at 418). Further, we are not persuaded by Appellant’s argument that the Examiner’s proposed reason to combine the teachings of DeBettencourt and Colby is insufficient, thereby rendering the proposed combination improper.6 The U.S. Supreme Court has held “[t]he combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results.” KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 416 (2007). The Court further instructs that: Often, it will be necessary for a court to look to interrelated teachings of multiple patents;[] and the background knowledge possessed by a person having ordinary skill in the art, all in order to determine whether there was an apparent reason to 6 “If references taken in combination would produce a ‘seemingly inoperative device,’[] such references teach away from the combination and thus cannot serve as predicates for a prima facie case of obviousness.” McGinley v. Franklin Sports, Inc., 262 F.3d 1339, 1354 (Fed. Cir. 2001) (citation omitted); see also In re ICON Health & Fitness, Inc., 496 F.3d 1374, 1382 (Fed. Cir. 2007) (“[A] reference teaches away from a combination when using it in that combination would produce an inoperative result,” but the obviousness analysis must account for “modifications that one skilled in the art would make to a device borrowed from the prior art.”). 6 The Federal Circuit has held “[a] reference may be said to teach away when a person of ordinary skill, upon reading the reference, would be discouraged from following the path set out in the reference, or would be led in a direction divergent from the path that was taken by the applicant.” In re Kahn, 441 F.3d 977, 990 (Fed. Cir. 2006) (quoting In re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994)). Appeal 2020-006755 Application 13/190,466 14 combine the known elements in the fashion claimed by the patent at issue. Id. at 418. “[R]ejections on obviousness grounds cannot be sustained by mere conclusory statements; instead, there must be some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness.” In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) (cited by KSR, 550 U.S. at 418). However, the Court also instructs that “the analysis need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ.” KSR, 550 U.S. at 418. In addition, the Court instructs, “if a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious unless its actual application is beyond his or her skill.” Id. at 417. This precedent controls, and the application of the cited legal principles to the facts of this appeal provide us with the necessary guidance in affirming this obviousness rejection. We agree with the Examiner that the proposed combination of the teachings of DeBettencourt and Colby is supported by a preponderance of the evidence, and the ensuing conclusion of obviousness is consistent with controlling authorities. Id. Consequently, we are satisfied that, on the record before us, the Examiner has established by a preponderance of the evidence that the combination of DeBettencourt and Colby teaches the disputed claim limitations. Because we are not persuaded of Examiner error, we sustain the Examiner’s rejection of claim 1 as being unpatentable over the combination of DeBettencourt and Colby. Appeal 2020-006755 Application 13/190,466 15 Regarding the rejections of claims 4, 15, 76, 79, 80, 90-92, 95-97, and 99-106, Appellant either does not present separate patentability arguments or reiterates substantially the same arguments as those discussed above for the patentability of claim 1. As such, claims 4, 15, 76, 79, 80, 90- 92, 95-97, and 99-106 fall therewith. See 37 C.F.R. § 41.37(c)(1)(iv). On this record, we affirm the Examiner’s rejections of claims 1, 4, 15, 18, 76, 79, 80, 90-92, and 95-106. VII. DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 15, 18, 98 102 DeBettencourt 15, 18, 98 1, 76, 79, 80, 90, 91, 95, 97, 99, 100, 102-106 103 DeBettencourt, Colby 1, 76, 79, 80, 90, 91, 95, 97, 99, 100, 102-106 4, 101 103 DeBettencourt, Colby, Ahuja 4, 101 92 103 DeBettencourt, Colby, Hunter 92 96 103 DeBettencourt, Colby, Lyke 96 Overall Outcome 1, 4, 15, 18, 76, 79, 80, 90-92, 95- 106 Appeal 2020-006755 Application 13/190,466 16 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). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED