Ex Parte Del Sordo et al

Patent Trial and Appeal Board

Jan 30, 2017

12964379 (P.T.A.B. Jan. 30, 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.
12/964,379 12/09/2010 Christopher S. Del Sordo BCS05251 4644
43471 7590 02/01/2017
ARRTS2 F.ntp.mrisp.s T ! C
EXAMINER
Legal Dept - Docketing
101 Tournament Drive
TAYLOR, JOSHUA D
HORSHAM, PA 19044 ART UNIT PAPER NUMBER
2426
NOTIFICATION DATE DELIVERY MODE
02/01/2017 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):
arris. docketing @ arris .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CHRISTOPHER S. DEL SORDO,
PATRICK J. LEARY, JOHN A. SCHLACK,
and YEQING WANG
Appeal 2016-003544
Application 12/964,379
Technology Center 2400
Before DEBRA K. STEPHENS, KEVIN C. TROCK, and
JESSICA C. KAISER, Administrative Patent Judges.
TROCK, Administrative Patent Judge.
DECISION ON APPEAL
Introduction
Appellants1 seek review under 35 U.S.C. § 134(a) from a final
rejection of claims 14—26.2 We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 According to Appellants, the real party in interest is ARRIS Technology,
Inc. App. Br. 3.
2 Claims 1—13 have been withdrawn. App. Br. 16—20.
Appeal 2016-003544
Application 12/964,379
Invention
The claims are directed to a switched digital video (SDV) system that
tunes from a first SDV service to a second SDV service at a requested time.
Abstract.
Exemplary Claim
Claim 14, reproduced below, is illustrative of the claimed subject
matter with disputed limitations emphasized:
14. A method, comprising:
sending a content stream in a Quadrature Amplitude
Modulation (QAM)-based switched digital video (SDV) system,
the content stream including sequential content associated with
a first SDV service and sequential content associated with a
second SDV service, wherein a tune request at a tune request time
initiates a transition of the content stream from the first SDV
service to the second SDV service;
inserting, in the sequential content associated with the first
SDV service, a set up service trigger in the content stream before
the tune request time, the set up service trigger including
information associated with the tune request;
receiving a setup request at a setup request time,
responsive to the set up service trigger, from a subscriber
location associated with a service group, wherein the setup
request is to set up the second SDV service for delivery over the
QAM-based SDV system to the service group, wherein the setup
request time is earlier than the tune request time, wherein a time
difference between the setup request time and the tune request
time is greater than a service set up time for the second SDV
service;
receiving, from the subscriber location, a service select
request to tune to the second SDV service; and
sending the second SDV service to the service group at the
tune request time.
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Application 12/964,379
Applied Prior Art
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Pedlow
Killian et al.
(“Killian”)
Akhter
Haberman et al.
(“Haberman”)
US 2006/0274208 Al Dec. 7, 2006
US 7,340,457 B1 Mar. 4, 2008
US 2008/0229379 Al Sept. 18, 2008
US 2009/0094634 Al Apr. 9, 2009
REJECTIONS
The Examiner made the following rejections:
Claims 14—16, 19—22, 25, and 26 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Haberman and Akhter. Final Act. 2—11.
Claims 17 and 23 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Haberman, Akhter, and Killian. Id. at 12—13.
Claims 18 and 24 stand rejected under 35 U.S.C § 103(a) as being
unpatentable over Haberman, Akhter, and Pedlow. Id. at 13—14.
ANALYSIS
We have reviewed the Examiner’s rejections and the evidence of
record in light of Appellants’ argument that the Examiner has erred. We
disagree with Appellants’ arguments and conclusions. We adopt as our own
the findings and reasons set forth by the Examiner in the action from which
this appeal is taken (Final Act. 2—18) and the findings and the reasons set
forth in the Examiner’s Answer (Ans. 2—9). We concur with the conclusions
reached by the Examiner and further highlight specific findings and
argument for emphasis as follows.
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Appeal 2016-003544
Application 12/964,379
Independent Claims 14, 20, and 26
“a switched digital video (SDV) system ”
Appellants contend Haberman does not teach “a Quadrature
Amplitude Modulation (QAM)-based switched digital video (SDV)
system,” as recited in claim 14 and similarly recited in claims 20 and 26.
App. Br. 8—9; Reply Br. 2—3. Specifically, Appellants argue “Haberman
teaches an Internet protocol television (IPTV) system[,] but Haberman does
not teach the use of an SDV system” (App. Br. 8).
The Examiner finds, however, and we agree, Haberman teaches an
IPTV content streaming system which sets the “proper timing and
scheduling” in order to switch “between multicast and unicast streams” of
content. Final Act. 2—3 (citing Haberman || 16—18, 75—76), 18; see Ans. 5.
The Examiner further finds, and we agree, Akhter teaches “the concept of a
QAM-based SDV system” that switches between content streams, i.e.,
changes channels. Ans. 5; Final Act. 5 (citing Akhter || 46, 48, 51). The
Examiner applies Haberman’s teachings to Akhter, “allowing for” switching
streams in a QAM-based SDV system with proper timing and scheduling.
Final Act. 4—5, 18; Ans. 5.
Appellants’ argument that Haberman individually does not teach an
SDV system (App. Br. 8—9; Reply Br. 2—3) is unpersuasive because the
rejection is based on a combination of references, i.e., Haberman and
Akhter. In re Keller, 642 F.2d 413, 426 (CCPA 1981). In particular,
Appellants have not persuasively addressed the Examiner’s combination of
Haberman and Akhter, which relies on Akhter to teach “the concept of a
QAM-based SDV system.” Ans. 5. Accordingly, we are not persuaded the
Examiner erred in finding the combination of Haberman and Akhter teaches
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Application 12/964,379
“a Quadrature Amplitude Modulation (QAM)-based switched digital video
(SDV) system,” within the meaning of claims 14, 20, and 26.
“a first SDV service ... a second SDV service ”
Appellants contend Haberman does not teach “a first SDV
service ... a second SDV service,” as recited in claim 14 and similarly
recited in claims 20 and 26. App. Br. 9—10. Specifically, Appellants argue
Haberman teaches “multicast and unicast streams of an IPTV system,” but
those streams are not “identified as SDV services.” App. Br. 10.
We are not persuaded. As discussed supra, the Examiner modifies
Haberman, which teaches setting proper timing and scheduling for switching
multicast and unicast, i.e., first and second, content (Ans. 4; Final Act. 2—3
(citing Haberman H 16—18, 75—76)), with Akhter, which switches between
QAM-based SDV content services (Ans. 4—5; Final Act. 5 (citing Akhter
1146, 48, 51), in order to set the proper timing and scheduling for switching
content in a QAM-based SDV system (Final Act. 4—5, 18; Ans. 5).
Appellants’ argument that Haberman does not individually teach first
and second SDV services (App. Br. 9—10) is unpersuasive because the
rejection is based on a combination of references, i.e., Haberman and
Akhter. See Keller, 642 F.2d at 426. In particular, as discussed supra,
Appellants have not persuasively addressed the Examiner’s combination of
Haberman and Akhter, which applies Haberman’s content switching to
switch “QAM-based SDV” content services, as taught by Akhter. Final Act.
4—5, 18; see Ans. 5. Accordingly, we are not persuaded the Examiner erred
in finding the combination of Haberman and Akhter teaches “a first SDV
service ... a second SDV service,” within the meaning of claims 14, 20,
and 26.
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“tune request ”
Appellants contend Haberman does not teach a tune request” and a
“set up service trigger” as recited in claim 14 and similarly recited in claims
20 and 26. App. Br. 12—13; Reply Br. 3. Specifically, Appellants argue that
“tuning” and “tune request” have meanings used by persons having skill in
the art (Reply Br. 3), and Haberman’s “insertion signals” are not a “set up
service trigger” or a “tune request” which “tune[s] to any service that is set
up by a set up service trigger and that is associated with a service set up
time” (App. Br. 12 (emphasis omitted)).
We are not persuaded. The Examiner finds, and we agree,
Haberman’s client notification is a set up service trigger because the client
notification “is embedded in a header of a multicast stream” and, when
detected, triggers “the client [to] request[ ] a unicast advertising stream.”
Ans. 9 (citing Haberman 148). The Examiner further finds, and we agree,
the client’s request for the unicast advertising stream is a tune request
because the client’s request for the unicast advertising stream causes the
client “to receive a desired advertisement.” Id.
Appellants’ argument that Haberman’s insertion signals are not a “set
up service trigger” or a “tune request” (App. Br. 12) does not address the
Examiner’s finding that Haberman’s client notification triggers a client
request for a unicast stream (Ans. 9 (citing Haberman 148)). Furthermore,
Appellants’ argument that Haberman does not request tuning (Reply Br. 3)
is not commensurate with the scope of the claim. Appellants do not proffer
an interpretation of “tune” or “tune request” (see id.) and neither the
Specification nor the claims provide explicit definitions of “tune” or “tune
request” which preclude switching to and receiving a particular content
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stream. Accordingly, we determine the Examiner broadly, but reasonably
interpreted, in light of the Specification, Haberman’s client request, which
causes a client to switch from a multicast steam to receive a requested
unicast stream, as a tune request causing the client to tune into the requested
unicast stream. Ans. 9; see Haberman || 75—82, Fig. 4.
Additionally, even assuming arguendo, that Haberman’s client
request does not “tune” into content, Appellants have not addressed the
Examiner’s finding that the combination of Haberman and Akhter teaches
requested “tunable channels.” Ans. 4. In particular, Appellants do not
address the Examiner’s finding, which we agree with, that Akhter “transmits
tunable channels” in a QAM-based SDV system. Ans. 4; Final Act. 4 (citing
Akhter 126, 48, 51).
Accordingly, we are not persuaded the Examiner erred in finding that
Haberman teaches a “tune request” and a “set up service trigger” within the
meaning of claims 14, 20, and 26.
Principle of Operation
Appellants contend the Examiner improperly combined Haberman
and Akhter because the combination would “chang[e] the principle of
operation of Haberman.” App. Br. 10-11. Specifically, Appellants argue
“[mjodifying the IPTV system of Haberman ... to a system that supports
QAM-based tuning” changes Haberman’s principle of operation. Id.
Appellants further argue that an IPTV system that supports QAM-based
tuning does not exist. Id. at 11.
We are not persuaded. As discussed supra, the Examiner’s
combination extends Haberman’s teaching of “property] tim[ed] and
scheduled]” content switching to Akhter in order to provide timely and
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scheduled content switching for Akhter’s QAM-based SDV content. Final
Act. 4, 18.
Appellants conclude that extending Haberman’s timely and scheduled
switching to QAM-based SDV content would change Haberman’s principle
of operation (App. Br. 11), but have not proffered sufficient evidence or
argument that an ordinarily skilled artisan would have been unable to
combine the teachings and suggestions of Haberman and Akhter to achieve
the intended purpose. In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974)
(“Attorney’s argument in a brief cannot take the place of evidence.”).
Moreover, the Examiner’s combination applies Haberman’s teachings to
Akhter’s system (Final Act. 4, 18), rather than changing Haberman’s
principle of operation. Furthermore, Appellants’ argument that the
Haberman and Akhter combination is a “chimera that. . . has not been
shown to actually exist” (App. Br. 11) is not persuasive because the test for
obviousness is what the combined teachings of the references would have
suggested to those of ordinary skill in the art, not whether or not the claimed
invention is disclosed in a single reference. See Keller, 642 F.2d at 425; In
re Young, 927 F.2d 588, 591 (Fed. Cir. 1991). Indeed, the Examiner’s
reasoning for the combination is supported by rational underpinning —
providing timely and scheduled switching of content for another content
system, i.e., a QAM-based SDV system (Final Act. 4, 18). Accordingly, we
are not persuaded the Examiner improperly combined Haberman and Akhter
in rejecting claims 14, 20, and 26.
Dependent Claims 15 19 and 21—25
Appellants do not argue separate patentability for dependent claims
15—19 and 21—25 which depend directly or indirectly from claims 14 or 20.
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App. Br. 14. For the reasons set forth above, therefore, we are not persuaded
the Examiner erred in rejecting these claims. See In re Lovin, 652 F.3d
1349, 1356 (Fed. Cir. 2011) (“We conclude that the Board has reasonably
interpreted Rule 41.37 to require applicants to articulate more substantive
arguments if they wish for individual claims to be treated separately.”).
Accordingly, we sustain the Examiner’s rejections of claims 15—19 and 21—
25. See 37 C.F.R. § 41.37(c)(l)(iv).
DECISION
We AFFIRM the Examiner’s 35 U.S.C. § 103 rejections of claims 14—
26.
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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