Ex Parte CrayfordDownload PDFPatent Trial and Appeal BoardNov 20, 201411830823 (P.T.A.B. Nov. 20, 2014) 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. 11/830,823 07/30/2007 Aaron Crayford 40428-0009 3434 20480 7590 11/21/2014 STEVEN L. NICHOLS Van Cott, Bagley, Cornwall & McCarthy 36 South State Street SUITE 1900 SALT LAKE CITY, UT 84111 EXAMINER VU, NGOC K ART UNIT PAPER NUMBER 2421 MAIL DATE DELIVERY MODE 11/21/2014 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte AARON CRAYFORD ____________________ Appeal 2012-004078 Application 11/830,823 1 Technology Center 2400 ____________________ Before ST. JOHN COURTENAY III, THU A. DANG, and LARRY J. HUME, Administrative Patent Judges. HUME, Administrative Patent Judge. DECISION ON APPEAL This is a decision on appeal under 35 U.S.C. § 134(a) of the non-final Rejection of claims 1–24 which stand twice rejected. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 According to Appellant, the real party in interest is Clarendon Foundation, Inc. App. Br. 2. Appeal 2012-004078 Application 11/830,823 2 STATEMENT OF THE CASE 2 The Invention Appellant's invention relates to "a system and method for improved distribution of content on a communication network." Abstract. Exemplary Claims Claims 1, 4, 9, 19, and 24, reproduced below, are representative of the subject matter on appeal (emphases added to disputed limitations): 1. A method comprising: receiving a request for video from a user on a network; streaming a first portion of the video to the user from a first node in the network; separating a remaining portion of the video into one or more subsection portions; searching one or more other nodes in the network for the subsection portions of the video; and streaming one or more of the subsection portions of the video to the user from one or more other nodes in the network. 4. The method of claim 3, wherein the one or more overlay nodes comprise one or more other users in the network that are adapted to communicate with the user. 2 Our decision relies upon Appellant's Appeal Brief ("App. Br.," filed July 8, 2011); Reply Brief ("Reply Br.," filed Dec. 14, 2011); Examiner's Answer ("Ans.," mailed Oct. 14, 2011); Non-Final Office Action ("Non- Final Act.," mailed Apr. 12, 2011); and the original Specification ('Spec.," filed July 30, 2007). Appeal 2012-004078 Application 11/830,823 3 9. The method of claim 1, wherein separating the remaining portion of the video into a plurality of subsection portions comprises fragmenting data related to the video into subsection portions smaller than the first portion of the video streamed to the user. 19. The method of claim 1, further comprising identifying an overload condition of resource contention between the one or more other nodes in the network. 24. Logic encoded in one or more tangible media for execution and when executed operable to: receive a video request from a user on a network; stream a first portion of the video to the user from a first node in the network; separate a remaining portion of the video into a plurality of subsection portions; search one or more other nodes in the network for the subsection portions of the video; and stream one or more of the subsection portions of the video to the user from one or more other nodes in the network. Prior Art The Examiner relies upon the following prior art as evidence in rejecting the claims on appeal: Conrath US 2001/0037461 A1 Nov. 1, 2001 Sim et al. ("Sim") US 2002/0078174 A1 June 20, 2002 Miller US 7,849,303 B2 Dec. 7, 2010 Appeal 2012-004078 Application 11/830,823 4 Rejections on Appeal R1. Claim 24 stands rejected under 35 U.S.C. § 101 as being directed to non-statutory subject matter. Ans. 4. R2. Claims 1–6, 8–13, and 17–24 stand rejected under 35 U.S.C. § 102(b) as being anticipated by Sim. Ans. 5. R3. Claim 7 stands rejected under 35 U.S.C. § 103(a) as being obvious over the combination of Sim and Conrath. Ans. 9. R4. Claims 14–16 stand rejected under 35 U.S.C. § 103(a) as being obvious over the combination of Sim and Miller. Id. GROUPING OF CLAIMS We address Rejection R1 of claim 24, argued separately, infra. Based on Appellant's arguments (App. Br. 11–20), we decide the appeal of Rejection R2 of claims 1, 2, 3, 5, 6, 8, 10–13, 17, 18, and 20–24 on the basis of representative claim 1; and each of claims 4, 9, and 19, argued separately, stand or fall by themselves. We address remaining claims 7 and 14–16 in rejections R3 and R4, not argued separately, infra. ISSUES AND ANALYSIS We only considered those arguments actually made by Appellant in reaching this decision, and we do not consider arguments which Appellant could have made but chose not to make in the Briefs so that any such arguments are deemed to be waived. 37 C.F.R. § 41.37(c)(1)(iv). Appeal 2012-004078 Application 11/830,823 5 We have reviewed the Examiner’s rejections in light of Appellant's contentions the Examiner has erred. Further, we have reviewed the Examiner’s response to each of the arguments. We have considered all of Appellant's arguments and any evidence presented. We disagree with Appellant's arguments with respect to claims 1–24, and we incorporate herein and adopt as our own (1) the findings and reasons set forth by the Examiner in the action from which this appeal is taken and (2) the reasons and rebuttals set forth by the Examiner in the Examiner's Answer in response to Appellant's Arguments. We incorporate such findings, reasons, and rebuttals herein by reference unless otherwise noted. We highlight and address specific findings and arguments regarding claims 1, 4, 9, 19, and 24 for emphasis as follows. 1. § 101 Rejection R1 of Claim 24 Issue 1 Appellant argues (App. Br. 10–11) the Examiner's rejection of claim 24 under 35 U.S.C. § 101 as being directed to non-statutory subject matter is in error. These contentions present us with the following issue: Did the Examiner err in concluding the recited "tangible media" as recited in claim 24 reads on a transitory, propagating medium, thus rendering claim 24 unpatentable by encompassing non-statutory subject matter? Analysis Appellant contends "claim 24 expressly recites logic 'encoded in one or more tangible media' . . . [and c]onsequently, claim 24 recites an article of Appeal 2012-004078 Application 11/830,823 6 manufacture and is statutory subject matter under 35 U.S.C. § 101." App. Br. 10. Appellant further contends, "any broader definition for 'computer readable medium'" in the Specification has "no[] impact on the broadest reasonable interpretation of the actual claim term . . . 'tangible' media." Id. We disagree with Appellant's contentions. Under our jurisprudence, the scope of the recited "tangible media" encompasses transitory media such as signals or carrier waves, where, as here, the Specification does not limit the medium to non-transitory forms. 3 See Ex parte Mewherter, 107 USPQ2d 1857 (PTAB 2013) (precedential) (holding recited machine-readable storage medium ineligible under § 101 since it encompasses transitory media). Here, the recited "tangible media" is not claimed as non-transitory, and the disclosure does not expressly and unambiguously limit that medium to solely non-transitory forms via a definition or similar limiting disclaimer. Therefore, the medium encompasses transitory forms and is ineligible under § 101 such that we sustain the rejection of claim 24. 2. Rejection R2 of Claims 1, 2, 3, 5, 6, 8, 10–13, 17, 18, and 20–24 Issue 2 Appellant argues (App. Br. 11–13; Reply Br. 5) the Examiner's rejection of claims 1, 2, 3, 5, 6, 8, 10–13, 17, 18, and 20–24 under 35 U.S.C. 3 We note the word "tangible" only appears in originally-presented claim 24. However, the Specification expressly discusses the various forms of computer readable media envisioned, which include non-statutory forms. See Spec. ¶ 113 ("Logic may be encoded in a computer readable medium . . . [which] may take many forms, including but not limited to . . . transmission media . . . [including] acoustic or light waves, such as those generated during radio wave and infrared data communications."). Appeal 2012-004078 Application 11/830,823 7 § 102(b) as being anticipated by Sim is in error. These contentions present us with the following issue: Did the Examiner err in finding the cited prior art combination discloses a method that includes, inter alia, the steps of "streaming a first portion of the video to the user from a first node in the network; . . . and; streaming one or more of the subsection portions of the video to the user from one or more other nodes in the network," as recited in claim 1? Analysis Appellant contends Sim does not disclose: a first node receiving a request for a file streams a first portion of the requested file to the requesting user and that other nodes stream the remaining portions of the requested file to the requesting user. Again, Sim teaches that a single node receives a request for a large file, downloads missing portions of the file from other nodes on the network, and streams the entire file to the requesting user. App. Br. 13 (citing Sim ¶¶ 39–42, and 115). Appellant further contends other nodes in Sim that supply missing portions of a large file do not directly stream the missing portions to the end user, but instead supply the missing portions to a central node, i.e., a Virtual File Control System (VFCS). The VFCS of Sim receives the missing portions of the large file and then streams the entire file directly to the user. App. Br. 13. In response, the Examiner finds Appellant's arguments are not commensurate with the scope of claim 1 because it "does not explicitly recite that a first node receives a request for file (or 'video'), and one or more other nodes in the network directly stream missing portions of the file (or Appeal 2012-004078 Application 11/830,823 8 'one or more of the subsection portions of the video') to the user." Ans. 11–12. We agree with the Examiner and note claim terms are to be given their broadest reasonable interpretation, as understood by those of ordinary skill in the art and taking into account whatever enlightenment may be had from the specification. In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). We note claim 1 only requires "streaming a first portion of the video to the user from a first node," and "streaming one or more of the subsection portions of the video to the user from one or more other nodes." We also note Appellant does not provide any definition of "streaming" in their Specification that would preclude the Examiner's broad but reasonable interpretation that intermediate nodes between a server and the user, or other "indirect" streaming techniques, including file reassembly as in Sim, may be used. Further in this regard, we note Appellant's Specification discloses "indirect" streaming of content from a server to a client/user, i.e., in an embodiment, Appellant discloses: As discussed herein, in an attempt to access a video that is available on the video distribution system 100, the client 104 may first download the service module 108 from the streaming server 142 of the infrastructure node 102, and once the service module is installed, the client 104 is adapted to download one or more portions of the video from one or more overlay nodes 106. Spec. ¶ 25 (emphasis added). Although we decline to narrowly construe claim 1 as being limited by this particular disclosed embodiment, we also fail to find any other description or definition in Appellant's disclosure that Appeal 2012-004078 Application 11/830,823 9 would support an interpretation that requires direct streaming from a server to a user, as argued by Appellant. 4 Accordingly, Appellant has not provided sufficient evidence or argument to persuade us of any reversible error in the Examiner's reading of the contested limitations on the cited prior art, or in the Examiner's resulting finding of anticipation. Therefore, we sustain the Examiner's anticipation rejection under 35 U.S.C. § 102(b) of independent claim 1, and claims 2, 3, 5, 6, 8, 10–13, 17, 18, and 20–24 which fall therewith. § 103(a) Rejection of Claims 7 and 14–16 In view of the lack of any substantive or separate arguments directed to the obviousness rejections of claims 7 and 14–16 under § 103 (see App. Br. 19–20), we sustain the Examiner's unpatentability rejections of these claims, as they fall with their respective independent claim 1. Arguments not made are considered waived. See Hyatt v. Dudas, 551 F.3d 1307, 1314 (Fed. Cir 2008) ("When the appellant fails to contest a ground of rejection to the Board, section 1.192(c)(7) [(now section 41.37(c)(1)(iv))] imposes no burden on the Board to consider the merits of that ground of rejection . . . 4 "In the patentability context, claims are to be given their broadest reasonable interpretations . . . limitations are not to be read into the claims from the specification." In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993) (citations omitted). Any special meaning assigned to a term "must be sufficiently clear in the specification that any departure from common usage would be so understood by a person of experience in the field of the invention." Multiform Desiccants, Inc. v. Medzam, Ltd., 133 F.3d 1473, 1477 (Fed. Cir. 1998). "[A]bsent an express intent to impart a novel meaning to the claim term, the words . . . take on the ordinary and customary meanings attributed to them by those of ordinary skill in the art." Brookhill- Wilk 1, LLC v. Intuitive Surgical, Inc., 334 F.3d 1294, 1298 (Fed. Cir. 2003) (citation omitted). Appeal 2012-004078 Application 11/830,823 10 [T]he Board may treat any argument with respect to that ground of rejection as waived."). Further, when Appellant does not separately argue the patentability of dependent claims, the claims stand or fall with the claims from which they depend. In re King, 801 F.2d 1324, 1325 (Fed. Cir. 1986); In re Sernaker, 702 F.2d 989, 991 (Fed. Cir. 1983). Accordingly, we sustain the rejection of claims 7 and 14–16. 3. Rejection R2 of Claim 4 Issue 3 Appellant argues (App. Br. 14–15) the Examiner's rejection of claim 4 under 35 U.S.C. § 102(b) as being anticipated by Sim is in error. These contentions present us with the following issue: Did the Examiner err in finding the cited prior art combination discloses a method "wherein the one or more overlay nodes comprise one or more other users in the network that are adapted to communicate with the user," as recited in claim 4? Analysis Appellant contends Sim Figure 1 relied upon by the Examiner in rejecting claim 4 (Non-Final Act. 5) does not disclose "that different users stream portions of video files to each other," but instead teaches each of the multiple users in Sim's system in Figure 1 requests and receives data content through origin server 100. App. Br. 14 (emphasis added). Appellant does not cite any other portion of Sim in support of this interpretation. To aid in our analysis, we note claim 3, from which claim 4 depends, recites "[t]he method of claim 1, wherein the network comprises a video Appeal 2012-004078 Application 11/830,823 11 distribution network, and wherein the one or more other nodes comprise one or more overlay nodes in communication with the user via the video distribution network." Claim 3. Thus, we find claim 4 requires communication between one or more other user(s) at [a] different node(s) ("overlay node(s)") with the user over a network, i.e., a video distribution network. We agree with the Examiner's finding that Sim teaches "one or more other users in the network that are adapted to communicate with the user." Ans. 6; and see Sim Fig. 1, elements 104–107 (Users 1–4) are all capable of communication with each other over LAN A/LAN B and/or through Router 101). In addition, the Examiner finds, and we agree, Appellant's argument is not commensurate with the scope of claim 4 because the claim does not require that "different users stream portions of video files to each other," as argued. We also note Appellant has not rebutted the Examiner's specific findings in the Reply Brief. Accordingly, Appellants have not provided sufficient evidence or argument to persuade us of any reversible error in the Examiner's reading of the contested limitations on the cited prior art, or in the Examiner's resulting finding of anticipation. Therefore, we sustain the Examiner's anticipation rejection under 35 U.S.C. § 102(b) of dependent claim 4. Appeal 2012-004078 Application 11/830,823 12 4. Rejection R2 of Claim 9 Issue 4 Appellant argues (App. Br. 15–16) the Examiner's rejection of claim 9 under 35 U.S.C. § 102(b) as being anticipated by Sim is in error. These contentions present us with the following issue: Did the Examiner err in finding the cited prior art combination discloses a method "wherein separating the remaining portion of the video into a plurality of subsection portions comprises fragmenting data related to the video into subsection portions smaller than the first portion of the video streamed to the user," as recited in claim 9? Analysis Appellant contends Sim's disclosure cited by the Examiner (Non-Final Act. 9 (citing Sim ¶¶ 83 and 85)) teaches "dividing a large video into blocks and piecing the video together from those blocks at a streaming server," but does not disclose " the first portion of a video streamed to the user is larger than all subsequent portions of the video streamed to the user." App. Br. 15. The Examiner responds to Appellant's allegation (Ans. 13 (citing Sim ¶ 116)) by providing an example of how Sim does disclose the disputed limitation. We agree with the Examiner's finding, and adopt it as our own herein. We also note Appellant has not rebutted the Examiner's specific factual finding in the Reply Brief. Accordingly, Appellants have not provided sufficient evidence or argument to persuade us of any reversible error in the Examiner's reading of the contested limitations on the cited prior art, or in the Examiner's resulting Appeal 2012-004078 Application 11/830,823 13 finding of anticipation. Therefore, we sustain the Examiner's anticipation rejection under 35 U.S.C. § 102(b) of dependent claim 9. 5. Rejection R2 of Claim 19 Issue 5 Appellant argues (App. Br. 13–14) the Examiner's rejection of claim 19 under 35 U.S.C. § 102(b) as being anticipated by Sim is in error. These contentions present us with the following issue: Did the Examiner err in finding the cited prior art combination discloses a method that includes, inter alia, the step of "identifying an overload condition of resource contention between the one or more other nodes in the network," as recited in claim 19? Analysis Appellant contends Sim does not disclose "the overload condition of resource contention between the one or more other nodes of the network recited in claim 19 . . . [and i]t is unclear why the Examiner has chosen to cite these portions of Sim in response to claim 19." App. Br. 17 (citing Non- Final Act. 10, and Sim ¶¶ 39–46, 115, 191, 231–232; and Figs. 6, 12–15, and 18A–21G). Appellant also argues Sim's teaching "that a node decides where to download missing content so as to minimize latency and bandwidth demands on other distribution server nodes based on performance information" does not "expressly or inherently teach or suggest an overload condition of resource contention or the identification thereof." App. Br. 17 (citing Non-Final Act. 7 and Sim Abstract, ¶¶ 42, 44, 45, 117, 118, and 166). Appeal 2012-004078 Application 11/830,823 14 In response, the Examiner finds, and we agree the term "overload condition of resource contention" is to be given its broadest reasonable interpretation as understood by those of ordinary skill in the art and taking into account whatever enlightenment may be had from the Specification. We further agree with the Examiner that claim 19 does not "preclude the interpretation of locating the nearest and least congested node(s) by DS [Distribution Server] to download the missing portions of the file so as to minimize latency and bandwidth demands on other distribution server nodes based on performance information as disclosed by Sim." Ans. 13–14 (citing Sim Abstract, ¶¶ 42, 44, 45, 117, 118, and 166). We note Appellant has not rebutted the Examiner's specific factual finding in the Reply Brief. Accordingly, Appellants have not provided sufficient evidence or argument to persuade us of any reversible error in the Examiner's reading of the contested limitations on the cited prior art, or in the Examiner's resulting finding of anticipation. Therefore, we sustain the Examiner's anticipation rejection under 35 U.S.C. § 102(b) of dependent claim 19. REPLY BRIEF To the extent Appellant may advance new arguments in the Reply Brief (Reply Br. 5) not in response to a shift in the Examiner's position in the Answer, we note "[a]ny bases for asserting error, whether factual or legal, that are not raised in the principal brief are waived." Ex parte Borden, 93 USPQ2d 1473, 1474 (BPAI 2010) (informative). Cf. with Optivus Tech., Inc. v. Ion Beam Appl"ns. S.A., 469 F.3d 978, 989 (Fed. Cir. 2006) ("[A]n issue not raised by an appellant in its opening brief . . . is waived."). Appeal 2012-004078 Application 11/830,823 15 CONCLUSIONS (1) The Examiner did not err with respect to the non-statutory subject matter rejection of claim 24 under 35 U.S.C. § 101 and we sustain the rejection. (2) The Examiner did not err with respect to the anticipation rejection of claims 1–6, 8–13, and 17–24 under 35 U.S.C. § 102(b) over Sim, and we sustain the rejection. (3) The Examiner did not err with respect to the obviousness rejections of claims 7 and 14–16 under 35 U.S.C. § 103(a) over the various combinations of the prior art of record, and we sustain the rejections. DECISION We affirm the Examiner's decision rejecting claims 1–24. 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 ELD Copy with citationCopy as parenthetical citation