Ex Parte Cherian et al

Patent Trial and Appeal Board

May 24, 2017

13557099 (P.T.A.B. May. 24, 2017)

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.
13/557,099 07/24/2012 George Cherian 0097-0082/112565 4169
101988 7590 05/26/2017
Harrity & Harrity, LLP \ Qualcomm
5775 Morehouse Drive
San Diego, CA 92121-1714
EXAMINER
DIVITO, WALTER J
ART UNIT PAPER NUMBER
2465
NOTIFICATION DATE DELIVERY MODE
05/26/2017 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):
docket@harrityllp.com
ocpat_uspto@qualcomm.com
qu alcomm @ harrity lip .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GEORGE CHERIAN, FATIH ULUPINAR,
and JUN WANG
Appeal 2017-001280
Application 13/5 57,0991
Technology Center 2400
Before ROBERT E. NAPPI, SCOTT B. HOWARD, and
JOHN D. HAMANN, Administrative Patent Judges.
HAMANN, Administrative Patent Judge.
DECISION ON APPEAL
Appellants file this appeal under 35 U.S.C. § 134(a) from the
Examiner’s Final Rejection of claims 1—30, 33—35, 37-40, 43—47, and SO­
SO. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 According to Appellants, the real party in interest is Qualcomm, Inc.
February 16, 2016 Appeal Brief (“App. Br.”) 3.
Appeal 2017-001280
Application 13/557,099
THE CLAIMED INVENTION
Appellants’ claimed invention relates to wireless communication
systems, including managing the provisioning of multimedia services in a
wireless communications network. See Spec. 12. Claim 11 is illustrative of
subject matter of the appeal and is reproduced below.
11. An apparatus in a wireless communication network, the
apparatus comprising one or more processors configured to:
determine a number of subscribers to a service in the
wireless communication network;
compare the number of subscribers to a predetermined
threshold value;
determine whether the service is being provided in a
multicast mode and that the number of subscribers is below the
predetermined threshold value;
upon determining that the service is being provided in a
multicast mode and that the number of subscribers is below the
predetermined threshold value, initiate a transition to a unicast
mode by sending a modified content designator to one or more
subscribers included in the number of subscribers, to trigger a
service discovery procedure;
determine whether the service is being provided in a
unicast mode and that the number of subscribers exceeds the
predetermined threshold value; and
upon determining that the service is being provided in a
unicast mode and that the number of subscribers exceeds the
predetermined threshold value, initiate a transition to a
multicast mode by sending the modified content designator to
one or more subscribers included in the number of subscribers,
to trigger a service discovery procedure, wherein the modified
content designator includes a header associated with a Dynamic
Adaptive Streaming over HTTP (DASH) content segment or a
Real-Time Protocol (RTP) data packet;
and further comprising at least one memory configured to
store data.
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REJECTIONS ON APPEAL
(1) The Examiner rejected claims 1—3, 11—13, 21, 22, 27—30, 33,
38-40, 43, 45^47, and 51—55 under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Jiang et al. (US 2007/0168523 Al;
published July 19, 2007) (hereinafter “Jiang”), Cappio et al. (US
2012/0124179 Al; published May 17, 2012) (hereinafter “Cappio”), and
Bichot et al. (WO 2008/119673 Al; published Oct. 9, 2008) (hereinafter
“Bichot”).
(2) The Examiner rejected claims 4, 5, 8—10, 14, 15, 18—20, 23, 25,
26, 34, 35, 44, and 50 under 35 U.S.C. § 103(a) as being unpatentable over
the combination of Jiang, Cappio, Bichot, and Whitehead (US
2008/0281698 Al; published Nov. 9, 2008).
(3) The Examiner rejected claims 6, 7, 16, 17, 24, 33, 37, and 43
under 35 U.S.C. § 103(a) as being unpatentable over the combination of
Jiang, Cappio, Bichot, and Gao (US 2010/0128646 Al; published May 27,
2010).
(4) The Examiner rejected claim 56 under 35 U.S.C. § 103(a) as
being unpatentable over the combination of Jiang, Cappio, Bichot, and
Zicker et al. (US 2005/0026649 Al; published Feb. 3, 2005) (hereinafter
“Zicker”).
ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellants’
contentions that the Examiner erred. In reaching our decision, we consider
all evidence presented and all arguments made by Appellants.
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We disagree with Appellants’ arguments and we incorporate herein
and adopt as our own the findings, conclusions, and reasons set forth by the
Examiner in (1) the September 18, 2015 Final Office Action (“Final Act.”
2—25) and (2) the November 10, 2015 Advisory Action (“Adv. Act.” 2). We
highlight and address, however, specific findings and arguments below for
emphasis.
More specifically, we highlight for emphasis two of Appellants’
arguments directed to the following limitation (“the disputed limitation”)
recited in claim 11, and similarly recited in other independent claims:
upon determining that the service is being provided in a unicast
mode and that the number of subscribers exceeds the
predetermined threshold value, initiate a transition to a
multicast mode by sending the modified content designator to
one or more subscribers included in the number of subscribers,
to trigger a service discovery procedure, wherein the modified
content designator includes a header associated with a Dynamic
Adaptive Streaming over HTTP (DASH) content segment or a
Real-Time Protocol (RTP) data packet[.]
June 15, 2016 Response to Notification of Non-compliant Appeal Brief
(“Res. App. Br.”) 4 (reciting limitation in claim 11).
(1) Initiate a transition
Appellants argue the combination of Jiang, Cappio, and Bichot fails to
teach or suggest “initiatingJ a transition” between modes (e.g., “to a
multicast mode”) in accordance with independent claims 1, 11, 21, 27, 28,
and 38. App. Br. 13—14. More specifically, Appellants argue Jiang instead
teaches “notifying clients that are active in a session that they can chose to
switch from a unicast to a multicast when the number of clients exceeds a
threshold.” App. Br. 13 (citing Jiang || 79 (reciting “‘[e]ach client so
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notified may elect to join the session and listen to a common media
session’”), 184—185). Appellants contend Jiang’s notifying of clients so that
they can choose to switch modes does not teach or suggest initiating a
transition (i.e., “in an active way . . . commanding . . . switching] modes”).
App. Br. 14.
The Examiner finds the combination, and Jiang in particular, teaches
or suggests initiating a transition in accordance with the disputed limitation.
Final Act. 7—9. More specifically, the Examiner finds Jiang teaches or
suggests initiating a transition (e.g., transitioning to multicast mode)
depending on the current mode (e.g., unicast mode) and the relative number
of subscribers (i.e., the number of subscribers compared to a threshold
value). See Final Act. 8 (citing Jiang Fig. 22, || 184—185).
We are unpersuaded by Appellants’ arguments. The combination, and
Jiang in particular, teaches or suggests the disputed limitation. See Jiang
Fig. 22, || 184—185. For example, Jiang’s paragraph 185 recites:
[W]hen the number of clients active for a session in a sector
reaches Ton, the sector is switched to multicast, the multicast
request is allowed and the unicast clients’ CAs are notified of
the switch. The CApp on each is unaware of the change. In
step 2204, when multicast is in use for a session in a sector, and
the number of clients active for that session in that sector drops
below a different threshold T0ff (less than or equal to Ton), the
sector is switched to unicast, and the multicast clients’ CAs are
notified of the switch.
Jiang 1185 (emphases added); see also Fig. 22 (steps 2203 (switch to MC)
and 2204 (switch to UC)). Further, Jiang’s paragraph 79 relates to a
different embodiment, and does not detract from Jiang’s other teachings and
suggestions (e.g., automatically switching modes based on the conditions).
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Jiang 179. Simply put, Jiang’s teachings and suggestions are not limited to
notifying clients so that they can choose to switch modes, as Appellants
suggest. Jiang Fig. 22, || 184—185.
(2) Combined teachings
Appellants argue the combined teachings of Jiang, Bichot, and Cappio
fail to teach or suggest the disputed limitation. App, Br. 12—14. As to
Bichot, Appellants argue its teachings “only involve[] using the HTTP
redirect to request repairs from a closet repair server,” rather than teaching
or suggesting “using HTTP redirects to trigger a service discovery
procedure.” App. Br. 12 (citing Bichot col. 3,11. 1—11; col. 6,11. 19-64). As
to Cappio, Appellants argue although it “generally discusses Dynamic
Adaptive Streaming over HTTP (DASH) content segments],” Cappio does
so with respect to using “response headers to request segments of a playlist.”
Id. (citing Cappio 22, 53). Appellants’ arguments regarding Jiang (App.
Br. 13—14) are addressed above. See supra section (1). Appellants contend,
thus, “the combination of Cappio, Bichot, and Jiang would involve, at best,
using the HTTP redirects of Bichot in the headers of Cappio in order to
notify clients that they can elect to switch to another mode,” rather than
teaching the disputed limitation. App. Br. 14.
The Examiner finds the combination of Jiang, Cappio, and Bichot
teaches or suggests the disputed limitation. Final Act. 8—10. As above, the
Examiner finds Jiang teaches or suggests initiating a transition to a multicast
mode when the number of subscribers exceeds a predetermined threshold
value. See supra section (1). The Examiner also finds that Dynamic
Adaptive Streaming over HTTP (DASH) content segments and Real-Time
Protocol (RTP) data packets are well-known concepts to one of ordinary
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skill in the art. See Final Act. 9 (citing Cappio H 3, 7—8). The Examiner
finds “it would have been obvious to one of ordinary skill in the art... to
modify Jiang with Cappio. . . . [for] the benefit of managing traffic as the
media stream content is dynamically modified.” Id. (citing Cappio H 7—8).
In addition, the Examiner finds Bichot teaches or suggests the well-known
concept of triggering a service discovery procedure. Id. at 9-10 (citing
Bichot 11,11. 11—15) (finding “[t]he server sends a HTTP redirect to the
client which uses it to issue a new request to the other server (i.e., triggers a
service discovery procedure)”). The Examiner finds “[i]t would have been
obvious to one of ordinary skill in the art... to modify Jiang and Cappio
with Bichot. . . . [for] the benefit of providing efficient content distribution.”
Id. at 10 (citing Bichot 1,11. 4—5).
We are unpersuaded by Appellants’ arguments. The combination of
Jiang, Cappio, and Bichot teaches or suggests the disputed limitation. See
Jiang Fig. 22, H 184—185; Cappio H 3, 7—8; Bichot 11,11. 11—15. Jiang
teaches or suggests initiating a transition (e.g., transitioning to multicast
mode) depending on the current mode (e.g., unicast mode) and the relative
number of subscribers (e.g., the number of subscribers exceeds a threshold
value). Jiang Fig. 22, H 184—185. We agree with the Examiner that the
cited references show that DASH and RTP are well-known protocols to one
of ordinary skill in the art. See, e.g., Cappio 13 (teaching that DASH is a
known example of a streaming protocol); see also Jiang 1 65 (teaching RTP
is a known example of a transport protocol); Spec. 1110 (disclosing that
“there are multiple content delivery techniques that may be used,” such as
DASH or RTP). We also agree with the Examiner that triggering a service
discovery procedure is well known to one of ordinary skill in the art. See
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Bichot 11,11. 10—16 (teaching directing a client to another server using the
HTTP redirect command); Jiang | 65 (teaching HTTP or RTSP data session
protocols can be used); see also Spec. Tflf 120-121 (disclosing service
discovery procedures include directing units to communications sources
(e.g., http-redirect)); Res. App. Br. 5 (claim 18, which depends indirectly
from claim 11) (“wherein the method further comprises using an http-
REDIRECT element to trigger the service discovery procedure”).
Furthermore, Appellants’ arguments cast the references’ teachings too
narrowly without addressing persuasively what would be taught or suggested
to one of ordinary skill in the art. See EWP Corp. v. Reliance Universal
Inc., 755 F.2d 898, 907 (Fed. Cir. 1985) (“A reference must be considered
for everything it teaches by way of technology and is not limited to the
particular invention it is describing and attempting to protect.”); In re Preda,
401 F.2d 825, 826 (CCPA 1968) (“[I]t is proper to take into account not only
specific teachings of the reference but also the inferences which one skilled
in the art would reasonably be expected to draw therefrom.”). Nor do
Appellants persuasively address what would be taught or suggested by the
references’ combined teachings to one of ordinary skill in the art. See KSR
Int’l Co. v. Teleflex Inc., 550 U.S. 398, 420 (2007) (“[I]n many cases a
person of ordinary skill will be able to fit the teachings of multiple patents
together like pieces of a puzzle.”); In re Keller, 642 F.2d 413, 425 (CCPA
1981) (combining the teachings of references does not involve an ability to
combine their specific structures).
(3) Waived arguments
In addressing Appellants’ arguments raised in the Appeal Brief, we
rely only on the Examiner’s findings and reasoning recited in the Final
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Action and the Advisory Action, which sufficiently address Appellants’
Appeal Brief arguments. Appellants have not shown good cause as to why
any arguments raised in the Reply Brief, could not have been presented
earlier. As such, these arguments have not been considered, and are waived.
See Ex parte Borden, 93 USPQ2d 1473, 1473—74 (BPAI 2010) (informative)
(finding absent a showing of good cause, the Board is not required to
address arguments in Reply Brief that could have been presented in the
principal Appeal Brief).
(4) Conditional limitation
We note, to facilitate potential future prosecution, that the disputed
limitation occurs within a conditional step (i.e., “upon determining that the
service is being provided in a unicast mode and that the number of
subscribers exceeds the predetermined threshold value”) for independent
claim 1. Res. App. Br. 2. During examination, claims are given their
broadest reasonable interpretation consistent with the specification. See In
re Am. Acad. ofSci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). The
broadest reasonable interpretation of claim 1 encompasses instances in
which the prerequisite condition for the disputed limitation is not met (i.e.,
when the provided service is not unicast mode or the number of subscribers
does not exceed the threshold value). Conditional steps employed in a
method claim need not be found in the prior art if, under the broadest
reasonable interpretation, the method need not invoke those steps. See Ex
parte Schulhauser, No. 2013-007847, 2016 WL 6277792, at *4 (PTAB Apr.
28, 2016) (precedential) (holding “[t]he Examiner did not need to present
evidence of the obviousness of the remaining method steps of claim 1 that
are not required to be performed under a broadest reasonable interpretation
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of the claim”); see also Ex parte Katz, No. 2010-006083, 2011 WL 514314,
at *4—5 (BPAI Jan. 27, 2011) (distinguishing conditional limitations in non­
method claims).
CONCLUSION
Appellants have not persuaded us that the Examiner erred regarding
the first-stated rejection of representative claim 11. See 37 C.F.R.
§ 41.37(c)(l)(iv) (“ When multiple claims subject to the same ground of
rejection are argued as a group or subgroup by appellant, the Board may
select a single claim from the group or subgroup and may decide the appeal
as to the ground of rejection with respect to the group or subgroup on the
basis of the selected claim alone.”). We, thus, sustain the Examiner’s
rejection of claims 1—3, 11—13, 21, 22, 27—30, 33, 38—40, 43, 45^47, and
51—55. We also sustain the Examiner’s (i) rejection of claims 4, 5, 8—10, 14,
15, 18—20, 23, 25, 26, 34, 35, 44, and 50; (ii) rejection of claims 6, 7, 16, 17,
24, 33, 37, and 43; and (iii) rejection of claim 56, as Appellants do not
provide separate arguments for their patentability.
DECISION
We affirm the Examiner’s decision rejecting claims 1—30, 33—35, 37—
40, 43—47, and 50-56.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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