Time Warner Cable Enterprises LLC

Patent Trials and Appeals Board

Oct 28, 2021

2020004725 (P.T.A.B. Oct. 28, 2021)

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.
15/041,745 02/11/2016 David W. Chen TWC11-06(11-62C1)CON 2960
156874 7590 10/28/2021
Armis Intellectual Property Law, LLC
P.O. Box 1564
Westborough, MA 01581
EXAMINER
MEANS, JAREN M
ART UNIT PAPER NUMBER
2447
NOTIFICATION DATE DELIVERY MODE
10/28/2021 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):
chris.lutz@armisiplaw.com
docket@armisiplaw.com
eofficeaction@appcoll.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte DAVID W. CHEN and KENNETH L. GOULD
____________

Appeal 2020-004725
Application 15/041,745
Technology Center 2400
____________

Before CARL L. SILVERMAN, NORMAN H. BEAMER, and
MICHAEL T. CYGAN, Administrative Patent Judges.

SILVERMAN, Administrative Patent Judge.

DECISION ON APPEAL

Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–17, 19–23, and 27–34. Claims 18
and 24–26 are objected to, and these claims are therefore not before us on
appeal2. We have jurisdiction under 35 U.S.C. § 6(b).

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42(a) (2018). Appellant identifies Time Warner Cable
Enterprises LLC as the real party in interest. Appeal Br. 2 (Appeal Brief,
filed Dec. 16, 2019 (hereinafter “Appeal Br.”)).
2 Claims 18 and 24–26 are objected to as being dependent upon a rejected
base claim, but would be allowable if rewritten in independent form
including all of the limitations of the base claim and any intervening claims.
Final Act. 2.
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We AFFIRM.
STATEMENT OF THE CASE
Appellant’s disclosure is directed to employing multiple streams of
data wherein each of the streams enable play back at a different level of
quality. Abstract, Spec. 12:10–14:1, and Figs. 1, 2, 4, 11.
Claim 1 is exemplary of the invention and reads as follows (emphasis
added):
1. A method comprising:
via computer processor hardware, performing operations
of:
establishing a multicast link at a distribution node, the
multicast link assigned a network address from which to
distribute multiple streams of data;
at the distribution node, receiving the multiple streams of
data from a server resource, each of the multiple streams of
data encoded to playback a rendition of corresponding content
according to a different level of quality; and
distributing the multiple streams of data from the
distribution node to multiple communication devices that join
the multicast link.
Appeal Br. 79 (Claims App.).

REFERENCES AND REJECTIONS
The prior art relied upon by the Examiner is:

Name Reference Date
Araujo et al. US 6,097,720 Aug. 1, 2000
Dei US 2006/0123456 A1 June 8, 2006
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Joe et al.
(“Joe”)
US 2012/0198506 A1 Aug. 2, 2012

Claims 1–4, 6–15, and 28 stand rejected under the judicially created
doctrine of obviousness-type double patenting. Final Act. 12–15.
Claims 1–17, 19–23, and 27–29 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Joe and Araujo. Final Act. 15–47.
Claims 30–34 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over Joe, Araujo, and Dei. Final Act. 47–56.

ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellant’s
contentions in the Appeal Brief and the Reply Brief that the Examiner has
erred, as well as the Examiner’s response to Appellant’s arguments in the
Appeal Brief. Arguments which Appellant could have made, but did not
make are deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(iv). We
provide the following for highlighting and emphasis.

The Obviousness-type Double Patenting Rejections
Claims 1-4, 6–15, and 28 are rejected under the judicially created
doctrine of obviousness-type double patenting as being unpatentable over
claims 1 and 21–27 of U.S. Patent No. 9,292,826. Final Act. 13–15. The
Examiner notes that although the conflicting claims are not identical, they
are not patentably distinct from each other. Id. at 14. The Examiner finds
“claims 1 and 21–27 of Patent No. 9,292,826 contain(s) every element of
claim 1–4, 6–15, and 28 of the instant application and thus anticipate the
claim(s) of the instant application.” Id. at 14.
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Appellant does not assert the Examiner errs, and instead states “[i]t is
premature to address any double patenting rejection because no claims have
been found otherwise allowable.” Appeal Br. 15. In the Reply Brief, App
argues that several dependent claims are not rejected under the double
patenting rejection and if such claims are amended into independent form, a
terminal disclaimer is not needed. Reply Br. 2.
We find no evidence in the record that a terminal disclaimer has been
filed.
In view of the above, we sustain the obviousness-type double
patenting rejections of claims 1–4, 6–15, and 28.
The 35 U.S.C. § 103 Rejections
In the Final Action, the Examiner finds the combination of Joe and
Araujo teaches the limitations of claim 1. Final Act. 15–19 (citing Joe ¶ 19;
Araujo 1:58–2:25). The Examiner finds Joe teaches much of the claim 1
limitations and finds Araujo teaches the “multicast links assigned a network
address from which to distribute multiple streams of data.” Id. at 17–19.
The Examiner provides reasoning why one of ordinary skill in the art would
have been motivated to combine the teachings of Joe and Araujo. Id. at 19.
Appellant argues, inter alia, the Examiner errs in finding the
combination of Joe and Araujo teaches the claim 1 limitations. Appeal Br.
16–24 (citing Joe ¶¶ 10, 19, 36, Figs. 1, 3; Araujo 1:58–2:25). According to
Appellant,
the combination of: i) Joe’s teaching of distributing a different
bit rate stream of video from each different network address in
combination with ii) Araujo’s providing of a multicast link from
which to distribute content over multiple individual streams
(copies of the same content) to respective users from a single
assigned network address does not teach or suggest the
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desirability of, nor does it output signal the technical hurdles
associated with: establishing a multicast link at a distribution
node, the multicast link assigned a network address from which
to distribute multiple streams of data; at the distribution node,
receiving the multiple streams of data from a server resource,
each of the multiple streams of data encoded to playback a
rendition of corresponding content according to a different level
of quality; and distributing the multiple streams of data from the
distribution node over the multicast link to multiple
communication devices that join the multicast link assigned the
network address. Joe differentiates which stream to
communicate to a respective communication device based on the
specific network address selected since each network address
distributes a different level of quality of the requested content;
Araujo indicates that any device that joins a given multicast link
of a particular network address receives a copy of the same
content (same level of quality video). Thus, Araujo and Joe
operate in a same manner. That is, a multicast link in Araujo and
Joe is assigned a single network address from which to distribute
content at a single level of quality.

Appeal Br. 16–17.

In the Answer, the Examiner additionally finds (also referred to as
“additional” findings) Joe teaches an embodiment in which a single server
uses a single multicast network address from which to setup and distribute
the multicast streams of different bit rates (different level of qualities).3

3 According to the Examiner

Even though the examiner believes that Joe does actually teach the
distribution from a single network address, the Examiner further
added a secondary reference Araujo that explicitly teaches the
distribution via a single network address as described above in the
rejection. Thus, the Examiner feels that the limitation is actually
taught by both references however believes the Araujo reference more
explicitly teaches it. Ans. 47–48.
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Ans. 46 (citing Joe ¶¶ 19, 36, Fig. 3). The Examiner finds Araujo explicitly
teaches the distribution via a single network address as described in the
rejection. Id. at 48. The Examiner notes that Joe is being used to teach the
different levels of quality being streamed and Araujo is used mainly to
explicitly show the teaching of the single network address being used to
multicast video content streams. Id. at 49–50. According to the Examiner
What Araujo teaches in column 1 line 57- column 2 line 20 is that the
individual streams can be communicated to individual CPEs with a
single network address over a PPP session. The group will have a single
particular IP multicast address associated with it which is then used
together with the join messages to allow access to that content. This
together with Joe's teaches of multiple qualities via single/multiple
addresses would lead one of ordinary skill in the art to find obvious.

Id. at 50.
In the Reply Brief, Appellant argues the Examiner errs in the
additional findings regarding Joe because, although network devices such as
a router may be assigned a network address, there is no indication that the
switches in switch delivery system 122 of Joe are assigned a network
address from which to serve as a source of distributing data packets
associated with a multicast link as appears to be set forth in the Answer.4
Reply Br. 4. According to Appellant, contrary to the assertion set forth in
the Answer, there is no indication that Joe at paragraph 19 discloses
distribution of multicast link of multiple different level of quality streams
from a single network address. Id. Appellant argues, that after a word
search, the word “address” cannot even be found in paragraph 19. Id. at 7.

4 In the Reply Brief, Appellant incorrectly and consistently uses the term
“Reply Brief” when referring to the Examiner Answer. Reply Br. 4–68.
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As discussed below, we are not persuaded by Appellant’s arguments
regarding the limitations of claim 1 and agree, instead, with the findings and
conclusions of the Examiner.
Joe teaches multiple synchronized multicast streams of the same video
content in which each of the multiple synchronized multicast streams
includes a different bit-rate encoding. Joe Abstract, Figs. 1, 3, 7. The
different bit-rate encoding constitutes multiple qualities of the same video
content. Joe ¶ 10.
Araujo teaches multicast message distribution. Araujo Abstract.
Araujo teaches each endpoint that wishes to listen to a multicast feed joins
the appropriate group by issuing a join message and the group will have a
particular IP multicast address associated with it. Araujo, 1:58–2:19.
Araujo teaches a technique by which multicast distribution and
concentration functions are applied to reduce the bandwidth required in an
access provider's network having many sources of multicast data. Araujo,
Abstract, 1:58–2:19.
Appellant argues an unreasonably narrow teaching of the cited
references to attempt to limit the teaching to the express disclosures, and
asserts an overly demanding standard of obviousness. However, we note:
[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.
In re Keller, 642 F.2d 413, 425 (CCPA 1981).
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As stated by the Supreme Court, the Examiner’s obviousness rejection
must be based on:
[S]ome articulated reasoning with some rational underpinning to
support the legal conclusion of obviousness. . . . [H]owever, 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 Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007) (quoting In re Kahn,
441 F.3d 977, 988 (Fed. Cir. 2006)).
Appellant’s arguments fail to respond to the rejection as articulated.
In particular, Appellant argues the references individually—asserting that
neither reference teaches or suggest all aspects of the claim 1 limitation (see,
e.g., Appeal Br. 16–24)—but this does not address the rejection as
articulated, which relied on the combined teachings of the references (see
Final Act. 15–19). Because Appellant’s arguments fail to address the
rejection as articulated, they do not persuade us of error on the part of the
Examiner. See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986)
(“Non-obviousness cannot be established by attacking references
individually where the rejection is based upon the teachings of a
combination of references.”) (citing In re Keller, 642 F.2d 413, 425 (CCPA
1981) (“[T]he test [for obviousness] is what the combined teachings of the
references would have suggested to those of ordinary skill in the art.”)); see
also In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992) (If an examiner
presents a prima facie case, “the burden of coming forward with evidence or
argument shifts to the applicant.”).
In an obviousness analysis, prior art references must be “considered
together with the knowledge of one of ordinary skill in the pertinent art,” In
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re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994), and we “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. On this record, we find the Examiner
has articulated ample “reasoning with some rational underpinning to support
the legal conclusion of obviousness.” Id.
Additionally, we note on the record before us, Appellant does not
present sufficient or persuasive evidence that the combination of the cited
references was “uniquely challenging or difficult for one of ordinary skill in
the art” or “represented an unobvious step over the prior art.” Leapfrog
Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007)
(citing KSR, 550 U.S. at 419–21).
Because, on the record before us, the Examiner’s findings are
sufficient to support obviousness of claim 1, we do not address the
Examiner’s additional findings that Joe also teaches an embodiment in
which a single server uses a single multicast network address from which to
setup and distribute the multicast streams of different bit rates.
In view of the above, we sustain the rejection of claim 1, independent
claims 11, 21, and 28 as these claims are similar to claim 1 and not argued
differently. We also sustain the rejection of dependent claim 27 as this
claim is not argued separately.
Dependent Claims 2–10, 12–17, 19, 20, and 30–34
The Examiner presents findings for rejected dependent claims 2–10,
12–17, 19, 20, and 30–34. Final Act. 19–56; Ans. 51–73. Appellant’s
arguments for these dependent claims rely heavily on the arguments
presented for claim 1, discussed supra. Appeal Br. 25–78; Reply Br. 12–66.
In particular, Appellant argues neither Joe nor Araujo teaches multiple
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quality streams at a network address. Id. Thus, Appellant continues to
improperly argue the individual references rather than the combined
teaching of the references.
For example, dependent claim 2 recites:
2. The method as in claim 1, wherein distributing the
multiple streams of data from the distribution node to the
multiple communication devices includes:
from a first communication device of the multiple
communication devices, receiving selection of a first stream of
data amongst the multiple streams of data in the multicast link;
and
in response to receiving the selection, transmitting the
first stream of data to the first communication device.

Appeal Br. 79 (Claims App.).
In the Final Action, regarding dependent claim 2, the Examiner finds
Joe’s switched delivery system 122 receives selection of a first stream and,
in response to the selection, transmits an optimal content stream. Final Act.
19–20 (citing Joe ¶ 38).
Appellant argues:
Contrary to the assertion set forth in the office action, the
combination of Joe’s distributing of a different bit rate stream of
video from each different network address and Araujo’s
providing of a multicast link from which to distribute content
over multiple individual streams (copies of the same content)
from a single network address to respective users does not teach
or suggest: wherein distributing the multiple streams of data from
the distribution node to the multiple communication devices
includes: from a first communication device of the multiple
communication devices, receiving selection of a first stream of
data amongst the multiple streams of data in the multicast link;
and in response to receiving the selection, transmitting the first
stream of data to the first communication device in a manner as
recited by the claimed invention.
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Accordingly, Applicants submit that the office action uses
the claimed invention as a basis to reject itself as opposed to
finding limitations in the prior art that teach or suggest the
claimed invention. Applicants submit that claim 2 is allowable.

Appeal Br. 26–27.
In the Answer, the Examiner focuses on the additional findings and
finds that Joe does not explicitly teach away from a server with a single
address providing the distribution of multicast streams at different qualities
since paragraph 19 of Joe describes one or more scheduling servers being
used. Ans. 51–52.
In the Reply Brief, Appellant argues the Examiner errs in finding
(the additional findings) that Joe teaches a single network address distributes
multiple streams of content at different levels of quality. Reply Br. 13–14
(citing Joe, Fig. 7). Appellant reiterates that Applicants submit that the
office action uses the claimed invention as a basis to reject itself as opposed
to finding limitations in the prior art that teach or suggest the claimed
invention. Id. at 14.
We are not persuaded by Appellant’s arguments and agree, instead,
with the findings and conclusion of the Examiner. As discussed, supra, the
combination of the teachings of Joe and Araujo teaches the claim 1
limitations. In the Final Action, the Examiner presents findings that Joe
teaches the dependent claim 2 limitations. Final Act. 19–20. Appellant does
not persuasively argue the Examiner erred. Instead, Appellant argues the
references individually (Joe) and in a conclusory manner.
Therefore, we sustain the rejection of dependent claim 2.
The remainder of the dependent claims are rejected with findings by
the Examiner. Final Act. 19–56. Appellant’s arguments are focused on the
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individual references, rather than the combination, and are presented in a
conclusory manner. Thus, for the same reasons discussed, supra, for
dependent claim 2 and independent claim 1, we sustain the rejection of
dependent claims 3–10, 17, 19, and 20.
Dependent claims 30–34 are rejected over the combination of Joe,
Araujo, and Dei. Final Act. 47–56. Appellant argues again that neither Joe
nor Araujo teach the claim 1 limitations and adds, in conclusory manner,
that Dei does not teach the limitations of dependent claims 30–34. Appeal
Br. 66–68.
For example, dependent claim 30 recites “The method as in claim
29, wherein the multicast link assigned the network address is also assigned
multiple ports, each of which distributes a respective one of the multiple
streams of data at a corresponding different level of quality from the
distribution node.” The Examiner finds Joe and Araujo may not explicitly
disclose wherein the multicast link assigned the network address is also
assigned multiple ports and refers to the teaching of Dei. Final Act. 47–48.
(citing Dei ¶¶ 17, 89). The Examiner finds Dei teaches there may be many
combinations of multiple addresses and ports as well as a single address and
multiple ports from which to distribute a video at different compression
ratios (different qualities) in order to provide a means for multicast
distributing video encoded data of the same video but having different
compression ratios. Id. (citing Dei ¶ 17).
Appellant argues Araujo does not teach each of the multiple ports
distributes a respective stream at a different level of quality from the
distribution mode. Appeal Br. 66–67 (citing Araujo, Fig. 9). Appellant
argues the Examiner errs in finding Dei, paragraph 89, teaches a multicast
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link with multiple ports from which to distribute content. Id. at 67.
According to Appellant, Dei indicates multicast distribution of data in which
a respective user can join different multicast sessions to retrieve content at
different compressions and this is in contrast to the claimed invention which
recites that the multicast link is assigned multiple ports, each of which
distributes a respective one of the multiple streams of data at a different level
of quality from the distribution node. Id. Appellant argues, contrary to the
assertion set forth in the office action, there is no indication that a multicast
link in Dei or any other cited reference discloses multiple ports from which
to distribute content. Appellant argues the Examiner uses the claimed
invention as a basis to reject as opposed to finding limitations in the prior art
that teach or suggest the claimed invention. Id. at 68.
In the Answer, the Examiner finds Araujo’s multiple ports are used
to help distribute the multicast stream and, in combination with Joe and
Araujo, Dei teaches the use of ports to distribute multicast streams. Ans. 69
(citing Araujo ¶ 9; Dei ¶ 28). The Examiner determines it would be obvious
to one of ordinary skill in the art to combine the references in order to teach
at least one port (multiple ports) being used together with a network address
in order to distribute a respective one of the multiple streams of data at a
different level of compression ratio (quality). Id. at 69–70.
In the Reply Brief, Appellant reiterates arguments. Reply Br. 57–
59.
As in the dependent claims discussed, supra, Appellant’s arguments
are focused on the individual references, rather than the combination, and
are presented in a conclusory manner. Thus, for the same reasons discussed,
supra, for dependent claim 2 and independent claim 1, we sustain the
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rejection of dependent claim 30, and dependent claims 31–34 as these claims
are similarly argued.
In view of the above, we sustain the obviousness rejection of claims 1–
17, 19–23, and 27–34.
CONCLUSION
We sustain the obvious-type double patenting rejections of claims 1–
4, 6–15, and 28.
We sustain the obviousness rejection of claims 1–17, 19–23, and 27–
34.

DECISION SUMMARY
In summary:
Claim(s)
Rejected
35
U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–4, 6–15,
28
Non-Statutory
Double Patenting U.S.
Patent No. 9,292,826
1–4, 6–15,
28

1–17, 19–
23, 27–29
103(a) Joe, Dei 1–17, 19–
23, 27–29

30–34 103(a) Joe, Araujo, Dei 30–34
Overall
Outcome
1–17, 19–
23, 27–34

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)(1)(iv).
See 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED