Ex Parte Lohmar et al

Patent Trial and Appeal BoardJul 11, 2016

13500594 (P.T.A.B. Jul. 11, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 13/500,594 07/09/2012 Thorsten Lohmar 24112 7590 07111/2016 COATS & BENNETT, PLLC 1400 Crescent Green, Suite 300 Cary, NC 27518 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 ATTORNEY DOCKET NO. CONFIRMATION NO. 4015-8069 I P30202-US1 1061 EXAMINER PIERORAZIO, MICHAEL ART UNIT PAPER NUMBER 2426 MAILDATE DELIVERY MODE 07/11/2016 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 THORSTEN LOHMAR, DANIEL CATREIN, and TORBJORN EINARSSON Appeal2015-000336 1 Application 13/500,594 Technology Center 2400 Before JEAN R. HOMERE, CAROLYN D. THOMAS, and KARA L. SZPONDOWSKI, Administrative Patent Judges. HOMERE, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants seek our review under 35 U.S.C. Â§ 134(a) from the Examiner's final rejection of claims 17-32, which are all of the claims pending in this appeal. App. Br. 1. Claims 1-16 have been canceled. Claims App'x. We have jurisdiction under 35 U.S.C. Â§ 6(b). We affirm. 1 Appellants identify the real party in interest as Telefonaktiebolaget LM Ericsson (publ). App. Br. 1. Appeal2015-000336 Application 13/500,594 Appellants' Invention Appellants' invention relates to a method and system for streaming, in a mobile communication network, media data partitioned as a plurality of data segments (220). Spec. 2: 13-14, Fig. 1. In particular, a descriptive file (100) (e.g., playlist) including a list of source identifiers (110) and a broadcast indicator (120) is utilized to determine whether to unicast or to broadcast the media data. Id. 5:25-32. Upon determining that the popularity value of the data stream exceeds a particular threshold, the broadcast indicator is set to indicate that broadcast delivery of the segments is available. Otherwise, the broadcast indicator is set to indicate that broadcast delivery is not available, and the data segments are unicast. Id. Illustrative Claim Independent claim 17 is illustrative, and reads as follows: 17. A method of streaming data in a mobile communication network, compnsmg: providing a descriptive file of a stream, the descriptive file comprising a list of delivery source identifiers for unicast delivery of data segments of the stream; adding a broadcast indicator to the descriptive file to indicate whether broadcast delivery of the data segments is available; determining a popularity value of the stream; in response to the popularity value being above a first threshold value, initiating the broadcast delivery and setting the broadcast indicator of the descriptive file to indicate that the broadcast delivery is available; 2 Appeal2015-000336 Application 13/500,594 in response to the popularity value being below a second threshold value, ending the broadcast delivery and setting the broadcast indicator of the descriptive file to indicate that the broadcast delivery is not available. Rachwalski Tang De Lay Biderman Prior Art Relied Upon US 2006/0085553 Al US 2008/0069071 Al US 2008/0285578 Al US 8,099,473 B2 Rejections on Appeal Apr. 20, 2006 Mar. 20, 2008 Nov. 20, 2008 Jan. 17, 2012 Appellants request review of the following Examiner's rejections: Claims 17-25, 27, and 29-32 under 35 U.S.C. Â§ 103(a) as being unpatentable over the combination of Biderman and Tang. Claims 26 and 28 under 35 U.S.C. Â§ 103(a) as being unpatentable over the combination of Biderman, Tang, and Rachwalski. ANALYSIS Issue: Under 35 U.S.C. Â§ 103, did the Examiner err in finding the combination of Biderman and Tang teaches or suggests setting a broadcast indicator of a descriptive file to indicate that broadcast delivery of a media stream is available if the popularity value of the media stream exceeds a predetermined threshold, as recited by independent claim 17? We consider Appellants' arguments seriatim, as they are presented in the Appeal Brief, pages 4--19, the Reply Brief, pages 1-7, and the 3 Appeal2015-000336 Application 13/500,594 Supplemental Reply Brief, pages 1--4.2 We have reviewed the Examiner's rejections in light of Appellants' arguments. We are unpersuaded by Appellants' contentions. Except as indicated otherwise, we adopt as our own the findings and reasons set forth in the rejections from which the appeal is taken and in the Examiner's Answer in response to Appellants' Appeal Brief. See Ans. 3-37, Final Act. 2-26. However, we highlight and address specific arguments and findings for emphasis as follows. First, Appellants argue Biderman' s disclosure of including universal resource indicators (URis) to a play list file does not teach adding a broadcast indicator to a descriptive file, as recited in independent claim 17. App. Br. 6-7 (citing Biderman 1:51-2:2, 4:7-12). According to Appellants, the URis only identify the locations from which associated media segments can be retrieved, but do not otherwise indicate whether or not the data segments associated therewith are available for broadcast delivery. Id. at 7, Reply Br. 3, Suppl. Reply Br. 3. This argument is not persuasive. At the outset, we note despite Appellants disputing the Examiner's conclusion that the recitation "adding a broadcast indicator to the descriptive file to indicate whether broadcast delivery of the data segments is available" 2 Rather than reiterate the arguments of Appellants and the Examiner, we refer to the Appeal Brief (filed April 25, 2014), the Reply Brief (filed October 1, 2014), the Supplemental Reply Brief (filed November 11, 2014), and the Answer (mailed August 8, 2014) for their respective details. We have considered in this Decision only those arguments Appellants actually raised in the Briefs. Any other arguments Appellants could have made but chose not to make in the Briefs are deemed to be waived. See 37 C.F.R. Â§ 41.37(c)(l)(iv) (2013). 4 Appeal2015-000336 Application 13/500,594 can be subject to diverse interpretations, Appellants and the Examiner at least agree that the cited claim limitation requires adding an indicator to a playlist file to thereby indicate whether or not segments in the playlist are available for broadcasting. This claim construction is reasonable and consistent with Appellants' Specification. Spec. 5:25-33. We do not agree with Appellants that Biderman's disclosure of adding URis to the playlist only teaches the locations (sources) from which associated segments (songs) in the playlist can be retrieved. The ordinarily skilled artisan would readily appreciate that by being used to retrieve a segment, an associated URI (hyperlink) also informs the user on whether the segment associated therewith is available (if retrieved) or unavailable (if the source is busy or the link is bad). Consequently, we agree with the Examiner's finding that Biderman's disclosure of adding URis to a playlist file of songs to thereby provide near real time streaming through live broadcasting teaches the disputed limitation. Ans. 8 (citing Biderman 4:5- 16). Second, Appellants argue that Tang's disclosure of switching between a unicast delivery mode to a broadcast delivery mode based upon the amount of time slots (bandwidth) required to transmit the information in a particular data stream does not teach initiating the broadcast delivery of the stream based on a determined popularity value. App. Br. 11-12 (citing Tang i-fi-17, 9, 29, 44, 46, and 65). Further, Appellants argue the Examiner's reliance upon Tang's disclosure of counting the number of viewers watching a streaming program does not teach a broadcast delivery based on the 5 Appeal2015-000336 Application 13/500,594 popularity thereof. 3 Reply Br. 5---6, Suppl. Reply Br. 3--4. This argument is not persuasive. We agree with the Examiner that Tang's disclosure of maintaining a count for a number of devices receiving a same media stream teaches that the media stream is popular if the media stream exceeds a particular threshold, as corroborated by Covell. Id. 22-24 (citing Tang i-f 65, and Covell i-fi-1 44--45). Specifically, Tang discloses determining whether to broadcast or unicast a data stream depending on how much bandwidth is required to transmit the data via unicast or broadcast (i.e., if the number of time slots required for transmission of requested data exceeds a predetermined threshold => broadcast, otherwise unicast). Tang i-f 4 7. Because the popularity of a data stream indicates that the data stream is being received by a great number of devices at a particular time, the more popular the data stream is, the greater it affects the bandwidth requirement. Therefore, we agree with the Examiner that Tang's teaching of a data stream popularity determines whether the data stream is to be transmitted via broadcasting or unicasting, and would thereby complement Biderman's teaching of whether a particular segment in the play list is available for broadcast. Consequently, we echo the Examiner's finding that the proposed combination of Biderman and Tang teaches the disputed limitations. It 3 Appellants lament the Examiner's citation to Covell for the first time in the Answer to corroborate that the count in Tang teaches the popularity limitation. Reply Br. 5. Appellants are reminded that any issue pertaining the Examiner's improper reliance upon new evidence in the Answer should be raised by petition before the Examiner's Technology Center Director. 6 Appeal2015-000336 Application 13/500,594 follows that Appellants have not shown error in the Examiner's rejection of claim 17. Regarding the rejections of claims 18-32, to the extent Appellants have either not presented separate patentability arguments or have reiterated substantially the same arguments as those previously discussed for patentability of claim 17 above, claims 18-32 fall therewith. See 37 C.F.R. Â§ 41.37(c)(l)(vii). Further, to the extent Appellants have raised additional arguments for patentability of these claims (App. Br. 12-19), we find that the Examiner has rebutted in the Answer each and every one of those arguments by a preponderance of the evidence. Answer 25-37. We adopt the Examiner's findings and underlying reasoning, which we incorporate herein by reference. Because Appellants have failed to persuasively rebut the Examiner's findings regarding the rejections of claims 18-32, Appellants have failed to show error in the Examiner's rejections of these claims. DECISION We affirm the Examiner's rejections of claims 17-32. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a)(l )(iv). AFFIRMED 7