Ex Parte Harris et al

Patent Trial and Appeal Board

Sep 27, 2012

10137613 (P.T.A.B. Sep. 27, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte MICHAEL ROBERT HARRIS and REN EGAWA
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Appeal 2010-003980
Application 10/137,613
Technology Center 2400
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Before DENISE M. POTHIER, BRUCE R. WINSOR, and
JEREMY J. CURCURI, Administrative Patent Judges.

CURCURI, Administrative Patent Judge.

DECISION ON APPEAL
SUMMARY
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1-20. App. Br. 4. We have jurisdiction under 35 U.S.C.
§ 6(b).
Claims 1-4, 8-11, and 15-18 stand rejected under 35 U.S.C. § 102(e)
as being anticipated by Gomez (US 2002/0087994 A1; published July 4,
2002; filed June 14, 2001).
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Claims 6, 13, and 20 stand rejected under 35 U.S.C. § 103(a) as being
obvious over Gomez in view of Stam (US 6,850,691 B1; issued Feb. 1,
2005; filed Mar. 30, 2000).
Claims 7 and 14 stand rejected under 35 U.S.C. § 103(a) as being
obvious over Gomez in view of Cheung (US 2003/0131126 A1; published
July 10, 2003; filed July 31, 2001).
Claims 5, 12, and 19 stand rejected under 35 U.S.C. § 103(a) as being
obvious over Gomez in view of Lee (US 2003/0037331 A1; published Feb.
20, 2003; filed Aug. 30, 2001).
We affirm.

STATEMENT OF CASE
Appellants’ invention relates to pre-caching content to enable true
video on demand (VOD) systems from near video on demand (NVOD) or
stream limited VOD systems. Content is delivered nearly on-demand, in
overlapping streams that start in staggered intervals on different channels,
and is played on-demand for the user using a storage system in conjunction
with the receiver. Abstract. Claim 1 is illustrative and reproduced below
with the key disputed limitation emphasized:
1. A system for on-demand playback of content comprising:
a connection to a receiver capable of selectively receiving each of a
plurality of channels on which a program is transmitted in overlapping
streams with staggered start times;
a connection to a storage system containing a pre-cached portion of
program data corresponding to playback of the program for a staggering
interval between start times for the overlapping streams; and
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a controller coupled to the connections to the receiver and the storage
system, the controller operable, in response to initiation of on-demand
playback of the program, to:
begin playback of the program from the pre-cached portion;
select a stream having a most recent start time for the program; and
buffer, from the selected stream, at least program data for the program
that is not contained within the pre-cached portion, wherein the pre-cached
portion and the buffered portion are contained within a set of logically
successive storage locations.

CONTENTIONS1
The Examiner finds that Gomez teaches all recited limitations of
claim 1, and specifically finds that:
In Gomez’s video-on-demand playback system, user selected
video programs are formed via combining “the beginning
portion” which shares functionality with “pre-cached portion”
as claimed and “the in-progress transmission stored in the
buffer data” which shares functionality with “the buffered
portion” as claimed . . . (abstract, lines 12-17; figure 1).
Obviously, all transmitting data [is] either [held] temporarily on
a buffer prior [to] being transmitted into the network or . . .
stored permanently in the storage/memory.
Ans. 4; see also Ans. 3-7, 9-11.
Appellants argue that Gomez does not teach the pre-cached portion
and the buffered portion are contained within a set of logically successive
storage locations as claimed, and that Gomez does not teach anything about
the memory storage of the pre-cached and buffered portions. App. Br. 15.

1 Rather than repeat the Examiner’s positions and Appellants’ arguments in
their entirety, we refer to the following documents for their respective
details: the Appeal Brief (App. Br.) filed May 4, 2007; the Examiner’s
Answer (Ans.) mailed Nov. 4, 2009; and the Reply Brief (Reply Br.) filed
Oct. 29, 2007.
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Appellants further argue that the fact that Gomez requires continuous
splicing clearly indicates that at no point are the pre-cached portion and the
buffered portion contained within a set of logically successive storage
location as claimed. App. Br. 16; see also App. Br. 15-17; Reply Br. 2-3.
In response, the Examiner states:
As one of ordinary skill in the art knows, all transmitted data is
temporarily held in a buffer prior to being transmitted into the
network or it is stored permanently in the storage/memory
within a set of physical addresses. The set of physical address
are converted into “logical addresses” (“logically successive
locations”) prior to transmission.
Ans. 10. The Examiner further states:
[T]he Examiner respectfully points out that whether or not
splicing occurs is irrelevant to the language of the claims at
issue. . . . Gomez clearly discloses pre-cached portions and
buffered portions that are contained within a set of logically
successive storage location[s at] least for the time period
immediately [preceding] the beginning of playback.
Ans. 11.

ISSUE
Under 35 U.S.C. § 102(e), has the Examiner erred by finding that
Gomez teaches the pre-cached portion and the buffered portion are
contained within a set of logically successive storage locations as recited in
claim 1?

ANALYSIS
The issue turns on one question: What is the meaning of “logically
successive storage locations”? Appellants’ Specification does not define
“logically successive storage locations” but does indicate “FIGURE 3B is a
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linear buffer configuration 301 in which the buffered portion 206 of the
content is simply written to locations logically following the pre-cached
portion 205, with the read and write pointers appropriately offset by the
staggering interval (i.e., thirty minutes in the example).” Spec. 14:1-6
(emphasis added). Appellants’ Specification further explains:
The alignment points (beginning of buffering and switchover)
may be indexed to program playback time or number of bytes
played, and playback may proceed continuously through a
logical sequence of storage addresses if buffering of received
content is aligned with the pre-cached portion, either by
overwriting a portion of the pre-cached program content (if
buffering is begun immediately when on-demand playback is
initiated) or writing the buffered program content data to
storage addresses logically following the end of the pre-cache
region.
Spec. 16:16-17:2 (emphasis added).
Consistent with the Specification, a broad, but reasonable construction
of “logically successive storage locations” includes storage locations for
program data that may be indexed by playback time. We note that logically
successive is broader than physically successive. The act of playing back a
video requires indexing the stored data by playback time in a logically
successive manner.
In view of this construction, we see no error in the Examiner’s
reliance on Gomez for teaching the argued limitations. As the Examiner
explains, Gomez discloses pre-cached portions and buffered portions that are
contained within a set of logically successive storage locations at least for
the time period immediately preceding the beginning of playback so that the
program is played back in the proper order. See Ans. 4-5, 11 (citing Gomez,
¶ [0004]-[0005]). By allowing video playback, Gomez teaches indexing
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stored program data by playback time in a logically successive manner. We
therefore sustain the Examiner’s rejection of claim 1, as well as claims 2-4,
8-11, and 15-18 which are not argued separately.
We also agree with the Examiner’s position, with regard to the § 103
rejection of claims 6, 13, and 20, that Gomez and Stam teach the claim
limitations. Ans. 7-8, 13. Appellants argue (App. Br. 21; Reply Br. 4) that
there is no specific motivation to combine the references, and that Stam does
not supply the deficiencies of Gomez. The Examiner finds that Stam teaches
a linear buffer and reasonably explains why the claimed invention would
have been obvious to one of ordinary skill in the art when combined with
Gomez. Ans. 7-8, 13. Appellants have not provided any persuasive
arguments as to why the Examiner’s explanation is insufficient. We also
need not address whether Stam cures Gomez’s purported deficiencies for the
reasons discussed above when addressing claim 1. We therefore sustain the
Examiner’s rejection of claims 6, 13, and 20.
We also agree with the Examiner’s position, with regard to the § 103
rejection of claims 7 and 14, that Gomez and Cheung teach the claim
limitations. Ans. 8, 13. Appellants argue (App. Br. 21) that there is no
specific motivation to combine the references, and that Cheung does not
supply the deficiencies of Gomez. We need not address whether Cheung
cures Gomez’s purported deficiencies for the reasons discussed above when
addressing claim 1. Also, the Examiner finds that Cheung teaches pre-fetch
data, which is equivalent to the recited pre-cached portion, is refreshed every
day (see Ans. 8 (citing Cheung, ¶ [0150])), and reasonably explains why the
claimed invention would have been obvious to one of ordinary skill in the art
when combined with Gomez. Ans. 8, 13. Appellants have not provided any
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persuasive arguments as to why the Examiner’s explanation is insufficient.
We further note that Appellants, for the first time in the Reply Brief, argue:
“[b]ut, unlike the Appellants’ invention, the Cheung reference does not teach
or suggest the concept of refreshing the pre-cached portion ‘from the
selected stream’ where the pre-cached portion and the buffered portion are
contained within a set of logically successive storage locations.” Reply Br.
4. Appellants’ arguments on these points are untimely and waived. See Ex
parte Borden, 93 USPQ2d 1473, 1474 (BPAI 2010) (informative) (“[T]he
reply brief [is not] an opportunity to make arguments that could have been
made in the principal brief on appeal to rebut the Examiner’s rejections, but
were not.”).
Nevertheless, the Examiner finds that Cheung, when combined with
Gomez, teaches the pre-cached portion is refreshed from the selected stream.
Ans. 8, 13. In addition, although technically cumulative to Cheung, we
nonetheless note in passing that Gomez also teaches and suggests refreshing
the pre-cached portion from the selected stream. See Gomez, ¶ [0005].
Skilled artisans would recognize that the beginning portions of the video
programs, which are previously stored in the viewbox for display, would be
refreshed periodically when the programs change. See id. We therefore
sustain the Examiner’s rejection of claims 7 and 14.
We also agree with the Examiner’s position, with regard to the § 103
rejection of claims 5, 12, and 19, that Gomez and Lee teach the claim
limitations. The Examiner finds that Lee teaches a circular buffer, and that
the claimed invention would have been obvious to one of ordinary skill in
the art when combined with Gomez. Ans. 9 (citing Lee, ¶ [0050], ll. 15-18;
see also Ans. 11-13. Appellants argue (App. Br. 18-21; Reply Br. 4-5) that:
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(1) Lee does not teach a circular buffer wherein the buffered portion is
written over the pre-cached portion; (2) there is no specific motivation to
combine the references; and (3) Lee does not supply the deficiencies of
Gomez. As stated previously, we need not address whether Lee cures
Gomez’s purported deficiencies for the reasons discussed above when
addressing claim 1.
Additionally, we see no error in the Examiner’s position. Lee’s
paragraph [0050], lines 15-18, states: “[t]he local cache is preferably
implemented conventionally as a circular buffer so that the oldest
already-seen portions of the cache can be reused to reduce the buffer space
needed” (emphasis added). By teaching reusing the oldest already-seen
portions of the cache, Lee teaches a circular buffer wherein the buffered
portion is written over the pre-cached portion as recited in the claims. The
Examiner reasonably explains why the claimed invention would have been
obvious to one of ordinary skill in the art when combined with Gomez. Ans.
9, 11-13. Appellants have not provided any persuasive arguments as to why
the Examiner’s explanation is insufficient. We therefore sustain the
Examiner’s rejection of claims 5, 12, and 19.

DECISION
The Examiner’s decision rejecting claims 1-20 is affirmed.
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). See 37 C.F.R.
§ 1.136(a)(1)(iv) (2010).

AFFIRMED
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