Ex Parte McCoy et al

Patent Trial and Appeal BoardAug 30, 2018

13429166 (P.T.A.B. Aug. 30, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. 13/429, 166 103865 7590 Procopio - SPE 525 B Street Suite 2200 FILING DATE 03/23/2012 09/04/2018 San Diego, CA 92101 FIRST NAMED INVENTOR Charles McCoy 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. l 14514-082UT1 7838 EXAMINER FLANDERS, ANDREW C ART UNIT PAPER NUMBER 2656 NOTIFICATION DATE DELIVERY MODE 09/04/2018 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): docketing@procopio.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte CHARLES MCCOY, LEO MARK PEDLOW, JR., JASON WALLACE, and TRUE XIONG Appeal2017-004394 Application 13/429, 166 Technology Center 2600 Before ERIC S. FRAHM, JOHN D. HAMANN, and JOYCE CRAIG, Administrative Patent Judges. CRAIG, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal under 35 U.S.C. Â§ 134(a) from the Examiner's Final Rejection of claims 1-3, 5-13, 15-18, and 20. 1, 2 We have jurisdiction under 35 U.S.C. Â§ 6(b ). We affirm. 1 According to Appellants, Sony Corporation and Sony Pictures Entertainment, Inc. are the real parties in interest. App. Br. 2. 2 In the Answer, the Examiner withdrew the rejection of claims 4, 14, and 19 under pre-AIA 35 U.S.C. Â§ 103(a) as unpatentable over the combination of Maharajh, Thenthiruperai, Thomas, and Liu. Ans. 13. Appeal2017-004394 Application 13/429,166 INVENTION Appellants' invention relates to an Internet Protocol television (IPTV) radio device using a low-bandwidth connection. Abstract. Claim 1 is illustrative and reads as follows: 1. A method of providing audio services to an Internet television device using a low-bandwidth Internet connection, the method comprising: configuring the Internet television device to operate and receive audio only services using a low-bandwidth Internet connection when only the low-bandwidth Internet connection is available; presenting a list of authorized services on a display of the Internet television device; receiving one of: ( 1) a selection from the list of authorized services; or (2) a search word for desired services from a user; searching using the search word, aggregating search results, and presenting a playlist of services and stations obtained from the search results based on a playback history of the user and modular capabilities of the Internet television device, when the desired services are not in the list of authorized services and the search word is received; enabling a customer to select a service from the play list of services and stations; receiving the service selected from the playlist of services and stations; and generating and sending only audio portion of one of: the selection from the list of authorized services; or the selected service from the play list of services and stations to the Internet television device. REJECTIONS Claims 1, 6, 7, 9--12, 15-17, and 20 stand rejected under pre-AIA 35 U.S.C. Â§ I03(a) as unpatentable over the combination ofMaharajh et al. (US 2008/0201225 Al; published Aug. 21, 2008) ("Maharajh") and 2 Appeal2017-004394 Application 13/429,166 Thenthiruperai et al. (US 7,069,014 Bl; issued June 27, 2006) ("Thenthiruperai"). Final Act. 4--8. Claims 2, 3, 13, and 18 stand rejected under pre-AIA 35 U.S.C. Â§ I03(a) as unpatentable over the combination of Maharajh, Thenthiruperai, and Thomas et al. (US 2009/0013348 Al; published Jan. 8, 2009) ("Thomas"). Final Act. 8-10. Claims 5 and 8 stand rejected under pre-AIA 35 U.S.C. Â§ I03(a) as unpatentable over the combination of Maharajh, Thenthiruperai, and Kulis et al. (US 8,438,485 B2; issued May 7, 2013) ("Kulis"). Final Act 12-15. ANALYSIS We have reviewed the rejections of claims 1-3, 5-13, 15-18, and 20 in light of Appellants' arguments that the Examiner erred. 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 waived. See 37 C.F.R. Â§ 4I.37(c)(l)(iv). Appellants' arguments are not persuasive of error. We agree with and adopt as our own the Examiner's findings of facts and conclusions as set forth in the Answer (Ans. 2-15) and in the Action from which this appeal was taken (Final Act. 4--10, 12-15). We provide the following explanation for emphasis. In rejecting claim 1, the Examiner found Maharajh teaches or suggests all of the recited limitations, except sending only audio when only the low bandwidth connection is available. The Examiner relied on Thenthiruperai as teaching that limitation. Final Act. 4--5. Appellants contend the Examiner erred because cited portions of Maharajh and Thenthiruperai do not teach or suggest the limitation 3 Appeal2017-004394 Application 13/429,166 "generating and sending only audio portion of one of: the selection from the list of authorized services; or the selected service from the playlist of services and stations to the Internet television device," as recited in claim 1. App. Br. 7, 13 (Claims App'x). Appellants argue the cited portions of the references "fail to disclose the specifics of generating and sending audio portion from the first or second selection to the IPTV in the context of other limitations of claim 1." App. Br. 7. We are not persuaded the Examiner erred. The Examiner found Maharajh at least suggests selecting services, items from a playlist, and/or stations. Ans. 14 (citing Maharajh ,r 192). The Examiner also found Maharajh teaches that broadcast rights may be considered in a profile, and that the teaching of cable and pay services like AOL suggest authorization. Id. (citing Maharajh ,r 130). The Examiner combined the teachings of Maharajh with those of Thenthiruperai, which the Examiner found teaches the ability to eliminate or remove video from an audio/video stream when bandwidth is limited. Id. Although Appellants contend the cited portions of the references "fail to disclose the specifics of generating and sending audio portion from the first or second selection to the IPTV in the context of other limitations of claim 1," Appellants do not provide any persuasive explanation to support their argument. See App. Br. 7. It is well settled that mere attorney arguments and conclusory statements, which are unsupported by factual evidence, are entitled to little probative value. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); see also In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974) (Attorney argument is not evidence.). 4 Appeal2017-004394 Application 13/429,166 Moreover, the test for obviousness is not whether the claimed invention is expressly taught in any one or all of the references, but whether the claimed subject matter would have been obvious to those of ordinary skill in the art in light of the combined teachings of those references. See In re Keller, 642 F.2d 413,425 (CCPA 1981). Appellants do not persuasively address the combined teachings of Maharajh and Thenthiruperai. Nor do Appellants persuasively rebut the Examiner's findings and explanations in the Answer. For these reasons, we are not persuaded the Examiner erred in finding that the combination of Maharajh and Thenthiruperai teaches or suggests the disputed limitation of claim 1. Accordingly, we sustain the Examiner'sÂ§ 103(a) rejection of independent claim 1, as well as the Examiner'sÂ§ 103(a) rejection of independent claims 11 and 17, which Appellants argue are patentable for similar reasons. App. Br. 8. We also sustain the Examiner's rejections of dependent claims 2, 3, 5-10, 12, 13, 15, 16, 18, and 20, not argued separately with particularity. Id. at 6-11. DECISION We affirm the decision of the Examiner rejecting claims 1-3, 5-13, 15-18, and 20. 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). See 37 C.F.R. Â§ 4I.50(f). AFFIRMED 5