Ex Parte Carpio et al

Patent Trial and Appeal BoardDec 20, 2012

12142117 (P.T.A.B. Dec. 20, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE _____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD _____________ Ex parte FREDRIK CARPIO, MILTON MASSEY FRAZIER, and NIKOLAOS GEORGIS _____________ Appeal 2010-007603 Application 12/142,117 Technology Center 2400 ______________ Before DAVID M. KOHUT, BRYAN F. MOORE, and MICHAEL J. STRAUSS, Administrative Patent Judges. MOORE, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-007603 Application 12/142,117 2 This is a decision on appeal under 35 U.S.C. § 134(a) of the Final Rejection of claims 1-13 and 15-20. App. Br. 2. Claim 14 is canceled. Id. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM-IN-PART. INVENTION The invention is directed to filtering network packets based on dynamic usage information associated with a receiving networked device. See Spec. 1. Claims 1 and 8 are exemplary of the invention and reproduced below: 1. A receiver of network data comprising: a processor causing the receiver to dynamically filter network packets by packet type from a network device central processing unit (CPU) based on usage information, the usage information including one or more of time, day of the week, location of the network device. 8. A method comprising: receiving dynamic usage information pertaining to a network device; based on the dynamic usage information, determining at least one desired packet type from a network; and passing, from a packet receiver of the network device to a central processing unit (CPU) of the network device, only the packets determined to be desired, wherein if the user selects a “video” feature, the desired packet type includes video packets but not binary application packets, wherein if the user changes to an “application” feature selection, the desired packet type includes binary application packets but not video packets. Appeal 2010-007603 Application 12/142,117 3 REFERENCES Hylton US 5,708,961 Jan. 13, 1998 Pawlowski US 6,038,199 Mar. 14, 2000 Istvan US 2006/0041926 A1 Feb. 23, 2006 Frazier US 2008/0120683 A1 May 22, 2008 REJECTION AT ISSUE Claims 1, 2, 5, 6, and 18-20 are rejected under 35 U.S.C. § 102(a) as being anticipated by Frazier. Ans. 3-6. Claim 8, 12, 13, and 15-17 are rejected under 35 U.S.C. § 103(a) as unpatentable over the combination of Frazier and Hylton. Ans. 6-8. Claims 3 and 4 are rejected under 35 U.S.C. § 103(a) as unpatentable over the combination of Frazier and Istvan. Ans. 8. Claim 7 is rejected under 35 U.S.C. § 103(a) as unpatentable over the combination of Frazier and Pawlowski. Ans. 8-9. Claims 9-11 are rejected under 35 U.S.C. § 103(a) as unpatentable over the combination of Frazier, Hylton, and Istvan. Ans. 9. ISSUE 1. Did the Examiner err in finding that Frazier discloses “dynamically filter network packets by packet type” and “usage information, the usage information including . . . time” as recited in claim 1? 2. Did the Examiner err in finding that Hylton teaches or suggests “based on the dynamic usage information, determining at least one desired packet type from a network; and passing, from a Appeal 2010-007603 Application 12/142,117 4 packet receiver of the network device to a central processing unit (CPU) of the network device, only the packets determined to be desired, wherein if the user selects a ‘video’ feature, the desired packet type includes video packets but not binary application packets, wherein if the user changes to an ‘application’ feature selection, the desired packet type includes binary application packets but not video packets.” as recited in claim 8? ANALYSIS 35 U.S.C. § 102(a) - Frazier 1, 2, 5, 6 and 18-20 Claim 1 recites “dynamically filter[ing] network packets by packet type.” Appellants argue that Frazier does not disclose this limitation. App. Br. 4. Specifically, Appellants argue that despite the fact that Frazier discloses that “[d]epending on the nature of the signal, it may be sent directly to the display 14 from the tuner 16 or sent first through the processor 18 for subsequent display” (Frazier, ¶ 13), “[s]ince signals sent from the tuner direct to the display without passing through the processor can be analog and in any case are not disclosed to be packets, nothing in paragraph 13 teaches filtering as between packet types as set forth in Claim 1.” App. Br. 4 (emphasis omitted). We are not persuaded by this argument. The Specification describes packet type generally as a choice between types such as video, binary application, and emergency packets. Spec. 4. The Microsoft Computer Dictionary defines a “packet” as “[a] unit of information transmitted as a whole from one device to another on a Appeal 2010-007603 Application 12/142,117 5 network.” Microsoft Computer Dictionary, Fifth Edition, 2002. The Examiner interprets packet as “a block or collection of data or information.” Ans. 11. Based on this definition, the Examiner finds that the broadest reasonable interpretation of “packet” encompasses the nature of a signal that is sent. Frazier, ¶ 13. We find there is ample support for the Examiner’s finding. Appellants do not identify any description in the original disclosure, other that what is cited above, that provides additional guidance in construing this term, nor do Appellants identify any description in the original disclosure that precludes the Examiner’s construction. Accordingly, and in view of the record presented, Appellants have not persuasively argued that the Examiner’s construction is unreasonable in view of, or inconsistent with, Appellants’ Specification. Therefore, we interpret “packet” as a block or collection of data or information. As noted above, Frazier teaches that an incoming digital signal may be directed to a tuner or a processor based on the nature of the signal sent. Frazier also discloses that a user may select a “sink,” i.e. an appropriate component to receive a signal. Frazier, ¶¶ 25 and 26. The Examiner finds that when a signal is digital, the packet type encompasses the nature of the signal. Ans. 10. The Examiner also finds that when the signal is directed to an appropriate “sink” it is filtered as required by claim 1. Id. Thus, based on the portions of Frazier discussed above, we agree with the Examiner that Frazier discloses “dynamically filter[ing] network packets by packet type.” See Ans. 10-11. Appeal 2010-007603 Application 12/142,117 6 Claim 1 also recites that the filtering is done based on “usage information, the usage information including . . . time.” Appellants argue that “[t]he relied-upon portion of Frazier teaches storing content for playback at a later time, not that the concept of time is used to filter packets as claimed in Claim 1, much less that time is a usage information.” App. Br. 4-5. We are not persuaded by this argument. Frazier discloses “[d]epending on the nature of the signal, it may be sent directly to the display 14 from the tuner 16 or sent first through the processor 18 for subsequent display.” Frazier, ¶ 13. Frazier also discloses that the reason to send the signal to the processor may be to send the signal to a hard disk drive for storage and later viewing. Frazier, ¶ 25. Thus, Frazier discloses that the signal may be sent to a processor, i.e. a packet may be filtered, based on the time the user wishes to view the packet. Therefore, we agree with the Examiner that Frazier discloses the filtering is done based on “usage information, the usage information including . . . time.” Therefore, for the reasons stated above, we affirm the Examiners rejection of claim 1. Appellants argue that claims 5 and 18 are patentable for the same reason that claim 1 is patentable (that Frazier allegedly does not disclose filtering by packet type). Claims 2, 6, 19, and 20 are not separately argued and thus fall with claim 1. Therefore, for the reasons stated above, we affirm the Examiners rejection of claims 2, 5, 6, 18, 19, and 20. Appeal 2010-007603 Application 12/142,117 7 35 U.S.C. § 103(a) - Frazier and Hylton 8, 12, 13, and 15-17 Appellants argue that claims 8, 12, and 13 are patentable for the same reason that claim 1 is patentable (that Frazier allegedly does not disclose filtering by packet type). App. Br. 7. We refer to the discussion above where we discuss this argument. Additionally, Appellant argues that Frazier does not disclose “usage information includes user preference as indicated by input received from a user input device” and “wherein the user preference is a ‘video’ feature or an ‘application’ feature of the network device” as recited in claims 8, 12, and 13. App. Br. 7. Specifically, Appellants argue [n]one the relied-upon portions of Hylton remotely discuss passing, from a packet receiver of the network device to a central processing unit (CPU) of the network device, only the packets determined to be desired, much less that if “video” is selected the desired packet type includes video packets but not binary application packets while if “application" is selected the opposite obtains. Id. In response, the Examiner states that: Hylton teaches that the audio, video and data packets for each program are inserted in the stream as the multiplexer receives and compiles enough payload data for each type of packet on the input form [sic] the particular program selector; where the data packet type may be for signaling/control or carrying a program mapping table (PMT); the first packet is PMT packet which is sent to the processor of the set-top terminal (col. 8, lines 18-26, col. 12, lines 12-16, col. 13, line 65 through col. 14, line 4). Appeal 2010-007603 Application 12/142,117 8 Ans. 16; see also Ans. 7. However, the Examiner does not explain, nor can we determine from our review of the Hylton reference, how a user would select a video packet and receive only video packets. The Examiner does not explain what is to be considered the binary application packet, but if we assume that the data packet is the binary application packet, the Examiner does not explain how a user of Hylton would select a data packet and receive only data packets. Hylton discusses mapping the video and audio packets and data packets for a chosen program to the correct terminal. Hylton, 12:12- 16, 12:67-13:4. However, Hylton does not disclose a mechanism for receiving only data packets. Therefore, we cannot sustain the Examiner’s rejection of claim 8. Claims 12, 13, and 15-17 depend from claim 8 thus stand with claim 8. Therefore, for the reasons stated above, we reverse the Examiners rejection of claims 8, 12, 13, and 15-17. 35 U.S.C. § 103(a) - Frazier and Istvan Claim 3 and 4 Claims 3 and 4 recite that the usage information includes day of the week and the location of a network device. Appellants argue “[t]here is no suggestion in Istvan that these concepts, admittedly missing from Frazier, might be used as bases for filtering packets as opposed to simply being concepts dangling alone in empty space.” App. Br. 8. However, as noted above, choosing whether to view an incoming signal or store it is interpreted as filtering packets. Istvan teaches that the video program may be selected based on viewing time (day of the week) and or location. Istvan, ¶¶ 5, 173. Appeal 2010-007603 Application 12/142,117 9 We note that the U.S. Supreme Court has held that “[t]he obviousness analysis cannot be confined by a formalistic conception of the words teaching, suggestion, and motivation, or by overemphasis on the importance of published articles and the explicit content of issued patents.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 419 (2007). Instead, the relevant inquiry is whether the Examiner has set forth “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 with approval in KSR, 550 U.S. at 418). The Examiner finds that “it would have been obvious to one having ordinary skill in the art at the time the invention was made to combine teachings from Istvan into the Frazier ‘683 invention to provide user control flexibility for selecting video programs.” Ans. 8. Upon reviewing the record before us, we find that the Examiner’s suggestion for modifying Frazier with Istvan suffices as an articulated reason with some rational underpinning to justify the legal conclusion of obviousness. In other words, a user would be motivated to use the scheduling information of Istvan to decide whether to use Frazier to watch a show now or save a show for later. Therefore, we affirm the Examiner’s rejection of claims 3 and 4. 35 U.S.C. § 103(a) - Frazier and Pawlowski Claim 7 Claim 7 is not separately argued and thus falls with claim 1. Therefore, for the reasons stated above, we affirm the Examiners rejection of claim 7. Appeal 2010-007603 Application 12/142,117 10 35 U.S.C. § 103(a) - Frazier, Hylton, and Istvan Claims 9-11 Claims 9-11 depend from claim 8 discussed above. Therefore, for the reasons stated above, we reverse the Examiners rejection of claims 9-11. DECISION The Examiner’s decision to reject claims 1-7 and 18-20 is affirmed. The Examiner’s decision to reject claims 8-13 and 15-17 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)(1)(iv). AFFIRMED-IN-PART msc