Ex Parte Miles et al

Patent Trial and Appeal Board

Apr 25, 2016

13163838 (P.T.A.B. Apr. 25, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/163,838 06/20/2011
46363 7590 04/27/2016
Tong, Rea, Bentley & Kim, LLC
ALCATEL-LUCENT USA INC.
12 Christopher Way
Suite 105
Eatontown, NJ 07724
FIRST NAMED INVENTOR
David Miles
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.
808954-US-NP 1611
EXAMINER
FAN, HUA
ART UNIT PAPER NUMBER
2449
NOTIFICATION DATE DELIVERY MODE
04/27/2016 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@trbklaw.com
ipsnarocp@nokia.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DAVID MILES and VENUGOP AL HEMIGE
Appeal2014-006173
Application 13/163,838
Technology Center 2400
Before CATHERINE SHIANG, LINZY T. McCARTNEY, and
KAMRAN JIVANI, Administrative Patent Judges.
McCARTNEY, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from a rejection of claims
1-21. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
Appeal2014-006173
Application 13/163,838
STATEMENT OF THE CASE
The present application "relates generally to communication networks
and, more specifically but not exclusively, to streaming content via
communication networks." Spec. 1:4---6. Appellants' arguments concern
claim 1, which we reproduce below:
1. An apparatus for adaptive streaming of a data object from
a server toward a client via a Transmission Control Protocol
(TCP) connection, the server having access to a plurality of
versions of the data object having a respective plurality of
encoding bit rates associated therewith, the apparatus
compnsmg:
a processor and a memory, the processor configured to:
determine, from information associated with a TCP
congestion control mechanism running on the server for
the TCP connection, a transmission bit rate expected to be
supported by the client for the TCP connection; and
select, based on the transmission bit rate expected
to be supported by the client and the encoding bit rates
associated with the versions of the data object accessible
to the server, one of the plurality of versions of the data
object for propagation from the server toward the client
via the TCP connection.
REJECTIONS
Claims 1-21 stand rejected under 35 U.S.C. § 103(a) as obvious over
two or more ofBichot (US 2012/0311174 Al; Dec. 6, 2012), Wexler (US
2011/0225315 Al; Sept. 15, 2011), Kohli (US 2010/0131671 Al; May 27,
2010), Hui (US 6,654,417 Bl; Nov. 25, 2003), Abousleman (US
2008/0259796 Al; Oct. 23, 2008), and Li (US 2011/0292884 Al; Dec. 1,
2011).
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Application 13/163,838
ANALYSIS
We have reviewed the Examiner's findings and conclusions in light of
Appellants' arguments and the evidence of record. We disagree with
Appellants that the Examiner erred. We adopt the Examiner's reasoning,
findings, and conclusions to the extent they are consistent with the analysis
below. We address Appellants' arguments in tum.
First, Appellants argue Bichot does not teach or suggest the "TCP
congestion control mechanism" recited in claim 1. See App. Br. 12-13;
Reply Br. 2. Appellants assert the Examiner found Bichot inherently teaches
the claimed TCP congestion control mechanism because Bichot disclose an
HTTP adaptive streaming method. App. Br. 12 (quoting Ans. 2-3); Reply
Br. 2. Appellants argue this finding is improper because using a HTTP
connection does not require an underlying TCP connection. App. Br. 13.
Moreover, Appellants contend that even assuming Bichot teaches HTTP
congestion control and a TCP connection, that arrangement does not require
the HTTP congestion control to provide congestion control for an underlying
TCP connection. Id.
We find Appellants' arguments unpersuasive. The cited portions of
Bichot explicitly disclose an HTTP protocol that adapts to bandwidth
changes by controlling the quality of data streamed over a TCP/IP
connection. See Bichot i-f 5 ("[T]he Agent Controller Module uses the HTTP
protocol to request the server to send the best suited chunk to be streamed
over a TCP /IP connection. On an elementary chunk basis the quality is up-
shifted or down-shifted according to the Agent Controller Module."); Final
Act. 3 (citing Bichot i-f 5). See also Bichot i-f 7. By controlling the quality of
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Application 13/163,838
data transmitted over the TCP/IP connection, the HTTP protocol is
controlling congestion on the TCP/IP connection.
Even if we were to agree that the Examiner improperly found Bichot
inherently teaches the claimed "TCP congestion control mechanism,"
Appellants' arguments would not persuade us the Examiner erred. The
Examiner also found Wexler teaches or suggests the recited "TCP
congestion control mechanism." Final Act. 4 ("Alternatively, Wexler also
discloses a TCP congestion control mechanism running on a server."); Ans.
12 ("[T]he Final Action also relied upon Wexler to expressly teach 'A TCP
congestion control mechanism running on a server."'). Appellants have not
persuasively addressed this finding. We therefore will not disturb the
Examiner's rejection on this ground.
Second, Appellants contend neither Bichot nor Wexler teaches or
suggests claim 1 's "determine" step. See App. Br. 13-15; Reply Br. 2---6.
Appellants argue that Bichot cannot teach or suggest this step because, in
Appellants' view, Bichot does not teach or suggest a "TCP congestion
control mechanism." App. Br. 14; Reply Br. 3. In addition, Appellants
contend Bichot does not teach or suggest determining "from information
associated with a TCP congestion control mechanism running on the server
... a transmission bit rate expected to be supported by the client because
Bichot discloses bit rates measured or requested by a client. See Reply Br.
4; see also App. Br. 14. Regarding Wexler, Appellants argue Wexler's
statements that "congestion control features of TCP may be used to regulate
TCP transmission and buffer fill level" and "' [ c ]lient interface 34 monitors
the TCP send buffer level, and possibly other TCP state variables, in order to
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Appeal2014-006173
Application 13/163,838
control the media transmission bit rate'" do not teach or suggest claim 1 's
"determine" step. Reply Br. 5 (quoting Wexler i-f 48) (emphases omitted).
We find Appellants' argument that Bichot does not teach or suggest a
"TCP congestion control mechanism" unpersuasive for the reasons
discussed above. Appellants' remaining arguments generally attack Bichot
and Wexler individually, but the Examiner found a combination of Bichot's
and Wexler' s disclosures teaches or suggests the disputed "determine" step.
See, e.g., Ans. 13-14. "[O]ne cannot show non-obviousness by attacking
references individually where, as here, the rejections are based on
combinations of references." In re Keller, 642 F.2d 413, 426 (CCPA 1981).
We therefore find these arguments unpersuasive.
To the extent Appellants contend the claimed "transmission bit rate
expected to be supported by the client" does not encompass a transmission
bit rate requested the client, Appellants have not identified anything in the
claims or the specification that supports this construction of the limitation.
Claim 1 simply requires determining "a transmission bit rate expected to be
supported by the client for the TCP connection" "from information
associated with a TCP congestion control mechanism running on the
server." App. Br. 19 (emphases added). This limitation does not require a
server perform the "determine" step, nor does the limitation prohibit a client
from doing so. Similarly, the limitation does not preclude a transmission
rate requested by a client from serving as "a transmission bit rate expected to
be supported by the client for the TCP connection."1 Accordingly, this
contention has not persuaded us the Examiner erred.
1 Indeed, one of ordinary skill in the art would have recognized that a
transmission bit rate requested by a client generally is "a transmission bit
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Third, and finally, Appellants contend "there is no teaching,
suggestion, or motivation to modify Bichot based on Wexler in the manner
asserted by the Examiner." Reply Br. 5. Appellants again argue that "a
measured or requested bit rate does not teach or suggest a transmission bit
rate expected to be supported by a client for a TCP connection." Id. at 5---6
( emphases omitted). Moreover, according to Appellants, "server-side
information is already available to the server ... [therefore] exchange of
information from the server to the client device and then back to the server is
unnecessary and thus, the proposed modification of Bichot based on Wexler
is unreasonable." Id. at 6 (emphases omitted). In Appellants' view, the
Examiner's "modification of Bichot based on Wexler would change the
principle of operation of Bichot (namely, the cited portions of Bichot
disclose the client device determines the measured/requested bit rate,
whereas the cited portions of Wexler discloses that the server controls the
transmission bit rate)." Id. (emphases omitted).
We find Appellants' arguments unpersuasive. The Examiner
explicitly provided reasons to make the proposed modification: to improve
scalability and control congestion. Final Act. 4; Ans. 14. And we disagree
that "a transmission bit rate expected to be supported by the client for the
TCP connection" does not include a requested transmission bit rate for the
reasons discussed above.
As for Appellants' contentions that the Examiner's proposed
combination is unreasonable and changes Bichot's principle of operation,
rate expected to be supported by the client." Common sense and logic
suggest a client usually requests a transmission bit rate the client expects it
can support-it makes little sense for a client to request a bit rate the client
expects it cannot support.
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Application 13/163,838
these contentions rest on Appellants' assertion that the combination "would
result in a system in which the client device receives the server-side
information from the server, determines a requested bit rate, and then
informs the server of the requested bit rate." Reply Br. 5. But both Bichot's
and Wexler' s methods involve exchanging information between a server and
a client to adjust a transmission rate. See Bichot i-fi-f 11-14, Fig. 1 a; Wexler
i148; Abstract. And both Wexler's and Bichot's methods involve the client
controlling the transmission bit rate. See Wexler i1 46 (explaining that a
server "client interface 34 uses buffer 39 in controlling its transmission bit
rate" and that "buffer 39 mirrors a client buffer 45 maintained by client 28"
(emphases omitted)), i147("BRA controller 38 will generally switch to a
version with a lower bit rate when buffer 39 fills to above a certain threshold
level and will switch to a version with a higher bit rate when buff er 3 9
empties to below another, lower threshold level." (emphases omitted)), i-f 48
("[S]erver 22 uses messages from client 28 in controlling the level of buffer
39." (emphases omitted)); Bichot i-fi-f 11-14. Therefore, even if Appellants
were correct that the Examiner's proposed modifications would result in
Appellants' hypothetical system-and Appellants have provided no
persuasive evidence or reasoning to demonstrate that it would-we would
not be persuaded the proposed modifications would be unreasonable or
improperly change Bichot's principle of operation based on the arguments
presented by Appellants.
For the above reasons, we sustain the Examiner's rejection of claim 1.
Because Appellants have not presented separate, persuasive patentability
arguments for claims 2-21, we also sustain the Examiner's rejections of
these claims.
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Appeal2014-006173
Application 13/163,838
DECISION
For the above reasons, we affirm the rejections of claims 1-21.
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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