Ex Parte Mishra

Patent Trial and Appeal Board

Apr 30, 2018

13845520 (P.T.A.B. Apr. 30, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/845,520 03/18/2013
11051 7590 05/02/2018
Squire Patton Boggs (US) LLP
Nokia Technologies Oy
8000 Towers Crescent Drive, 14th Floor
Vienna, VA 22182
FIRST NAMED INVENTOR
Abhishek MISHRA
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.
089229.00636 3512
EXAMINER
KIM, WILLIAM JW
ART UNIT PAPER NUMBER
2421
NOTIFICATION DATE DELIVERY MODE
05/02/2018 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):
sonia.whitney@squirepb.com
ipgeneraltyc@squirepb.com
nokia.ipr@nokia.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ABHISHEK MISHRA
Appeal2017-010234
Application 13/845,520 1
Technology Center 2400
Before DEBRA K. STEPHENS, DANIEL J. GALLIGAN, and
DAVID J. CUTITTA II, Administrative Patent Judges.
STEPHENS, Administrative Patent Judge.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from a final rejection of
claims 1, 3---6, 13, 15-18, and 25, which are all of the claims pending in the
application. We have jurisdiction under 35 U.S.C. § 6(b). Claims 2, 7-12,
14, 19-24, and 26-30 have been cancelled.
We AFFIRM.
1 According to Appellant, the real party in interest is Nokia Solutions and
Networks Oy (App. Br. 2).
Appeal2017-010234
Application 13/845,520
CLAIMED SUBJECT MATTER
According to Appellant, the claims are directed to modifying the
transmission of selected objects in an object-based video data transmission
session (Abstract). Claim 1, reproduced below, is representative of the
claimed subject matter:
1. A method implemented in a network node, comprising:
setting a total bandwidth allocated to an object-based
video data transmission session;
receiving selection information indicative of a selected at
least one video object of the object-based video data transmission
session; and
increasing or decreasing the total bandwidth allocated to
the object-based video data transmission session by calculating a
necessary bandwidth of the selected at least one video object.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Bauer
Shao
Averbuch
Manor
us 5,664,128
US 2001/0047423 Al
US 2003/0081836 Al
US 2012/0201255 Al
REJECTIONS
Sept. 2, 1997
Nov. 29, 2001
May 1, 2003
Aug. 9, 2012
Claims 1, 3, 4, 6, 13, 15, 16, 18, and 25 stand rejected under 35 U.S.C.
§ I03(a) as being unpatentable over Shao, Averbuch, and Manor (Final
Act. 7-15).
Claims 5 and 17 stand rejected under 35 U.S.C. § I03(a) as being
unpatentable over Shao, A verbuch, Manor, and Bauer (id. at 16-17).
2
Appeal2017-010234
Application 13/845,520
Our review in this appeal is limited only to the above rejections and
the issues raised by Appellant. Arguments not made are waived (see MPEP
§ 1205.02; 37 C.F.R. §§ 4I.37(c)(l)(iv) and 4I.39(a)(l)).
ISSUES
35 U.S.C. § 103(a): Claims 1. 13. and 25
Appellant contends the invention as recited in claims 1, 13, and 25 is
patentable over Shao, Averbuch, and Manor (App. Br. 9-15, 17-18, 21).
The issues presented by the arguments are:
Issue 1 a: Has the Examiner shown Shao teaches or suggests
"calculating a necessary bandwidth of the selected at least one video object,"
as recited in claim 1 and similarly recited in claim 13?
Issue 1 b: Has the Examiner shown the combination of Shao and
Manor teaches or suggests "setting a total bandwidth allocated to an object-
based video data transmission session," as recited in claim 1 and similarly
recited in claim 13?
Issue 1 c: Has the Examiner shown the combination of Shao and
Averbuch teaches "[a] method implemented in a network node," as recited
in claim 1, and "[a] network node," as recited in claim 13?
Issue 1 d: Has the Examiner shown Shao teaches "a connection
controller," as recited in claim 13?
Issue 1 e: Has the Examiner improperly combined Shao, A verbuch,
and Manor?
3
Appeal2017-010234
Application 13/845,520
ANALYSIS
Issue la
Appellant contends the Examiner erred in finding Shao teaches
"calculating a necessary bandwidth of the selected at least one video object,"
as recited in claim 1 and similarly recited in claim 13 (App. Br. 11-12;
Reply Br. 4--7). Specifically, Appellant argues Shao "give[s] greater priority
to objects requiring better perceptual visual quality," but can do so "without
having to calculate the bandwidth associated with that object" (App. Br. 11 );
i.e., "there are other way[s] that Shao's [system] could be designed to work,
which would not require Shao' s [system] to be aware of the actual
bandwidth values of any of the objects" (Reply Br. 6).
We are not persuaded. The Examiner finds (Final Act. 8; Ans. 6-7),
and we agree, Shao teaches "when faced with limited network bandwidth ...
allocat[ing] more of the available bandwidth to an object requiring better
perceptual visual quality by a receiver than other objects, for example, as
selected by the user in mouse clicking, etc. on the object" (Shao ,r 63).
Appellant's argument that Shao does not teach "calculating a
necessary bandwidth" because Shao can operate without "be[ing] aware of
the actual bandwidth values of any of the objects" (Reply Br. 5---6; App.
Br. 11) is not commensurate with the scope of the claims. The claims do not
require awareness of an "actual" amount of the bandwidth of an object;
rather, the claims recite "calculating a necessary bandwidth." Further, the
Specification does not define what a necessary bandwidth is or limit how to
calculate that necessary bandwidth. Shao teaches the calculation of a
"necessary bandwidth" because Shao teaches "when faced with limited
network bandwidth, ARC 206 [(application-aware resource controller)] can
4
Appeal2017-010234
Application 13/845,520
allocate more of the available bandwidth to an object requiring better
perceptual visual quality by a receiver than other objects" (Shao ,r 63), i.e.,
Shao calculates a necessary bandwidth by calculating some allocation of
additional bandwidth for a selected object. Shao further teaches
"[ c ]oordinating bandwidth allocation among multiple applications and video
object flows" (id. ,r 69). Therefore, even under Appellant's unduly narrow
interpretation of the claims, Shao would have suggested calculating a
necessary bandwidth by examining the "actual bandwidth" used by an object
because Shao teaches bandwidth is allocated between the objects. Indeed,
Shao teaches determining whether network resources can "satisfy the rate
requirement of the video object flow" (Shao ,r 111 ). As such, Shao teaches
or at least suggests calculating the actual bandwidth used by an object
because Shao determines whether that object's rate requirement can be
satisfied by the actual bandwidth necessary. We note Shao further explains
that, for reallocation, "known methods can be adapted to calculate the
available network bandwidth used by a video application" (Shao ,r 120),
which teaches, or at least suggests, calculating the actual bandwidth of an
object in order to allocate additional bandwidth for the object.
Accordingly, we are not persuaded the Examiner erred in finding
Shao teaches "calculating a necessary bandwidth of the selected at least one
video object," as recited in claim 1 and similarly recited in claim 13.
Issue lb
Appellant contends the Examiner erred in finding Manor teaches
"setting a total bandwidth allocated to an object-based video data
transmission session," as recited in claim 1 and similarly recited in claim 13
5
Appeal2017-010234
Application 13/845,520
(App. Br. 12-13; Reply Br. 8). Specifically, Appellant argues "Manor
makes no mention of an object-based video data transmission session, much
less does it mention setting a total bandwidth allocated to an object-based
video data transmission session" (App. Br. 12-13; see Reply Br. 8).
We are not persuaded. The Examiner finds (Final Act. 7), and we
agree, Shao teaches "Object-Based Video Transmission" (Shao ,r 48) in
which "multiple objects of the same media or different media ... have
different [Quality of Service] requirements" (Shao ,r 57). The Examiner
further finds (Final Act. 9-10), and we agree, Manor teaches, for
"communication sessions such as video conferences" (Manor ,r 5), setting a
"first bandwidth allocation to a first session" (Manor ,r 37), i.e., "setting a
total bandwidth."
Appellant's argument that "Manor makes no mention of an object-
based video data transmission session" (App. Br. 12-13; see Reply Br. 8)
inappropriately attacks Manor individually when the rejection is based on
the combination Shao and Manor (In re Keller, 642 F.2d 413,426 (CCPA
19 81)). In particular, Appellant does not address the Examiner's finding that
Shao's disclosure of object-based video transmission and Manor's disclosure
of allocating a total bandwidth for a video communication session teach, in
combination, "setting a total bandwidth allocated to an object-based video
data transmission session" (Ans. 8; Final Act. 9-10).
Accordingly, we are not persuaded the Examiner erred in finding the
combination of Shao and Manor teaches "setting a total bandwidth allocated
to an object-based video data transmission session," as recited in claims 1
and 13.
6
Appeal2017-010234
Application 13/845,520
Issue le
Appellant contends the Examiner erred in finding the combination of
Shao and Averbuch teaches "[a] method implemented in a network node," as
recited in claim 1, and "[a] network node," as recited in claim 13 (App. Br.
14; Reply Br. 8-10). Specifically, Appellant argues "the node of Averbuch
that allegedly performs the 'increasing or decreasing' features ... is not the
same node as the node of Shao that allegedly performs the 'setting' features"
(App. Br. 14; Reply Br. 9).
We are not persuaded. The Examiner finds (Ans. 11; Final Act. 7-8),
and we agree, Shao teaches a network node which sets bandwidth for object-
based video transmission (Shao ,r,r 48, 57, 63). The Examiner further finds
(Ans. 11; Final Act. 8-9), and we agree, Averbuch teaches video
transmission using "[ o ]bject scalability" and "quality scalability" teaches
"transmitting only the important objects in the scene at a high quality," and
further teaches "to either drop the remaining objects or code them at a much
lower quality" (Averbuch ,r 58).
Appellant's argument that Shao and Averbuch's respective network
nodes are not the same network node (App. Br. 14; Reply Br. 9) improperly
requires the bodily incorporation of features in A verbuch that the
Examiner's combination does not make - specifically, Averbuch's network
node. Further, Appellant's argument that neither reference itself teaches
"[b ]oth" the steps of "setting a total bandwidth" and "increasing or
decreasing the total bandwidth" (Reply Br. 8) does not address the
Examiner's obviousness rejection over the combination of the references.
The Examiner's rejection is not based on anticipation; rather, the Examiner's
rejection is on the ground of obviousness based on the combination of
7
Appeal2017-010234
Application 13/845,520
references (Final Act. 7-10; Ans. 11-12). The Examiner's combination
teaches "a network node ( such as the ARC of Shao) could perform the
'setting' and 'increasing or decreasing' steps as required by the claim[s]"
(Ans. 11-12), i.e., the Examiner combines the teachings of Shao and
A verbuch such that the same network node performs the claimed features.
Accordingly, we are not persuaded the Examiner erred in finding the
combination of Shao and Averbuch teaches "[a] method implemented in a
network node," as recited in claim 1, and "[a] network node," as recited in
claim 13.
Issue Id
Appellant contends the Examiner erred in finding the combination of
Shao and Averbuch teaches "a connection controller," as recited in claim 13
(App. Br. 18). Specifically, Appellant argues "Shao does not mention a
connection controller" and "A verbuch does not mention a connection
controller" (id.).
We are not persuaded. The Examiner finds, and we agree, Shao
"provide[ s] the user selections from receivers and servers to perform the
various bandwidth allocation services provided" (Ans. 14--15 (citing Shao
,r,r 40, 63, 100, Fig. 1), i.e., Shao's receivers or servers perform the claimed
functions and so teach "a connection controller." Appellant's argument
(App. Br. 18) does not address the Examiner's finding that Shao's receivers
or servers teach a "connection controller" (see Ans. 15). Furthermore,
neither the claims nor the Specification define explicitly a "connection
controller." We, therefore, determine Shao's receivers or servers teach a
"connection controller."
8
Appeal2017-010234
Application 13/845,520
Accordingly, we are not persuaded the Examiner erred in finding
Shao teaches "a connection controller," as recited in claim 13.
Issue le
Appellant contends the Examiner improperly combined Shao,
Averbuch, and Manor (App. Br. 9-11, 13-15; Reply Br. 2--4). Specifically,
Appellant argues the Examiner's motivation for the combination "has
nothing to do with calculating a necessary bandwidth of the selected at least
one video object" but rather the "alleged motivation is at most a motivation
to practice Manor's method, not to take some aspect of Manor's approach
and apply it in a totally different way" (App. Br. 10; Reply Br. 2). Appellant
further argues "even though Manor may discuss allocation, there is no way
that the base combination of Shao and A verbuch could be modified ... to
adopt this one isolated feature of Manor and to apply it in a totally new and
different way to the combination" (Reply Br. 4).
We disagree with Appellant's argument that the Examiner's reasoning
for combining Shao, Averbuch, and Manor, i.e., "to efficiently allocate and
reclaim bandwidth among different communication sessions" (Final
Act. 10), would not have motivated one of ordinary skill in the art to
combine the references (App. Br. 10; Reply Br. 2). Shao, Averbuch, and
Manor all contemplate allocation of bandwidth (Shao ,r 63 ("allocate more
of the available bandwidth to an object requiring better perceptual visual
quality"); Averbuch ,r 58 ("Scalability is an important feature for video
coding methods operating across transmission channels of limited bandwidth
and also channels where the bandwidth is dynamic"); Manor ,r 37
("allocating bandwidth from a first communication session to a second
9
Appeal2017-010234
Application 13/845,520
communication session")). Each of the references, therefore, is concerned
with the allocation of bandwidth. We find the Examiner has articulated
reasoning with a rational underpinning as to why an ordinarily skilled artisan
would have been motivated to combine the teachings and supports the
combination of those references because efficiently sharing resources is a
reasonable goal when the allocation of bandwidth is at issue.
Furthermore, Appellant's argument that "there is no way" to combine
the references to "adopt ... one isolated feature of Manor and to apply it in a
totally new and different way" (Reply Br. 4) is unpersuasive because it is
supported only by attorney argument (In re Pearson, 494 F.2d 1399, 1405
(CCPA 1974) ("Attorney's argument in a brief cannot take the place of
evidence.")). Because Shao, Averbuch, and Manor all dynamically allocate
bandwidth, as discussed supra, we are not persuaded that combining
Manor's bandwidth allocation features would have been "uniquely
challenging or difficult for one of ordinary skill in the art" (Leapfrog
Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007)
( citation omitted)).
Additionally, Appellant's argument that the claimed invention is non-
obvious because a network that "effectively reclaim[s] bandwidth" "is not
the result of the proposed combination of prior art" and "is not disclosed by
the prior art as a possible objective to be obtained" (App. Br. 14--15 (citing
Spec. ,r,r 123-126)) is not persuasive.
The claims do not require the reclamation of bandwidth; rather, the
claims recite "increasing or decreasing the total bandwidth allocation"
( emphasis added). That is, decreasing the total bandwidth allocation, i.e.,
reclaiming bandwidth, is one of two alternative limitations. Moreover, as
10
Appeal2017-010234
Application 13/845,520
discussed supra, we agree with the Examiner's finding that the combination
of Shao, A verbuch, and Manor teaches the benefits and advantages
Appellant highlights, e.g., Manor teaches reclaiming bandwidth by
reallocating bandwidth (Manor ,r,r 37-38).
Accordingly, we are not persuaded the Examiner improperly
combined Shao, Averbuch, and Manor. Therefore, we sustain the rejection
of claims 1 and 13 under 35 U.S.C. § 103(a) as being unpatentable over
Shao, Averbuch, and Manor. We likewise sustain the Examiner's rejection
of claim 25 under 35 U.S.C. § 103(a) as being unpatentable over Shao,
Averbuch, and Manor, because Appellant offers no additional persuasive
arguments for patentability (see App. Br. 21 ).
35 U.S.C. § 103(a): Claims 3 and 15
Appellant contends the invention as recited in claims 3, 4, 15, and 16
is patentable over Shao, Averbuch, and Manor (App. Br. 15-16, 19-20).
The issues presented by the arguments are:
Issue 2 a: Has the Examiner shown Shao teaches or suggests
"receiving a request for the object-based video data transmission session, or
transmitting a request for monitoring selection of video objects of the object-
based video data transmission session," as recited in claim 3 and similarly
recited in claim 15?
Issue 2b: Has the Examiner shown Shao teaches or suggests "the
connection controller is further configured to receive a request," as recited in
claim 15?
11
Appeal2017-010234
Application 13/845,520
ANALYSIS
Issue 2a
Appellant contends the Examiner erred in finding Shao teaches
"receiving a request for the object-based video data transmission session, or
transmitting a request for monitoring selection of video objects of the object-
based video data transmission session," as recited in claim 3 and similarly
recited in claim 15 (App. Br. 16, 20). 2 Specifically, Appellant argues the
Examiner's rejection of the claims "did not identify any such request" (id.).
We are not persuaded that the Examiner did not identify a request for
an object-based video data transmission session. The Examiner finds, and
we agree, Shao' s "system may receive requests from client[ s] and send
video object streams to clients, as well as acting upon client requests and
coordinating bandwidth allocations of video object streams" (Final Act. 10
(italics added, emphasis omitted) (citing Shao ,r 63)). Indeed, Shao teaches
"allocat[ing] more of the available bandwidth to an object ... as selected by
the user in mouse clicking, etc. on the object," (Shao ,r 63) i.e., Shao
"receiv[ es] a request" for a user-selected object.
Accordingly, we are not persuaded the Examiner erred in finding
Shao teaches or suggests "receiving a request for the object-based video data
transmission session, or transmitting a request for monitoring selection of
video objects of the object-based video data transmission session," as recited
in claim 3 and similarly recited in claim 15. Therefore, we sustain the
2 We understand Appellant's discussion of claim 3 on page 20 of
Appellant's Appeal Brief applies to claim 15 because Appellant notes that
the Examiner's rejection of claim 15 refers to the Examiner's rejection of
claim 3 (App. Br. 19-20).
12
Appeal2017-010234
Application 13/845,520
rejection of claim 3 under 35 U.S.C. § 103(a) as being unpatentable over
Shao, Averbuch, and Manor.
Issue 2b
Appellant contends the Examiner erred in finding Shao teaches "the
connection controller is further configured to receive a request," as recited in
claim 15 (App. Br. 19). Specifically, Appellant argues "Shao in no way
discloses or suggests a configuration of a connection controller to perform
[the claimed] reception" (id.).
We are not persuaded. As discussed supra, we agree with the
Examiner's finding that Shao' s receivers or servers teach a "connection
controller" because those receivers and servers "provide the user selections
from receivers and servers to perform the various bandwidth allocation
services provided" ( Ans. 15 ( citing Shao ,r,r 40, 63, 100, Fig. 1) ). As such,
we agree with the Examiner's broad, but reasonable, interpretation that
Shao's receivers and servers, which receive requests as discussed supra,
teach a connection controller that receives requests.
Accordingly, we are not persuaded the Examiner erred in finding
Shao teaches or suggests "the connection controller is further configured to
receive a request," as recited in claim 15. Therefore, we sustain the rejection
of claim 15 under 35 U.S.C. § 103(a) as being unpatentable over Shao,
A verbuch, and Manor.
35 U.S.C. § 103(a): Claims 4 and 16
Appellant contends the invention as recited in claims 4 and 16 is
patentable over Shao, Averbuch, and Manor (App. Br. 15-16, 19-20). The
issue presented by the arguments is:
13
Appeal2017-010234
Application 13/845,520
Issue 3: Has the Examiner shown Shao teaches or suggests "wherein
said transmitting the request for monitoring comprises at least transmitting
an identifier of the object-based video data transmission session," as recited
in claim 4 and similarly recited in claim 16?
ANALYSIS
Appellant contends the Examiner erred in finding Shao teaches
"wherein said transmitting the request for monitoring comprises at least
transmitting an identifier of the object-based video data transmission
session," as recited in claim 4 and similarly recited in claim 16 (App.
Br. 15-16, 19-20; Reply Br. 11). 3 Specifically, Appellant argues Shao's
"identifiers of the flows ... are not an identifier of the object-based video
data transmission session, because a flow is not a session, much less an
object-based video data transmission session" (Reply Br. 11; App. Br. 16).
We are not persuaded. Claim 4 does not require identifiers. Claim 4
depends from claim 3 which recites "receiving a request for the object-based
video data transmission session, or transmitting a request for monitoring
selection of video objects of the object-based video data transmission
session" ( emphasis added). When a claim contains alternatives, the claim is
met if any of the alternatives is known in the prior art (see Brown v. 3M, 265
F.3d 1349, 1351 (Fed. Cir. 2001) (citing Titanium Metals Corp. of America
v. Banner, 778 F.2d 775, 782 (Fed. Cir. 1985))). As the Examiner points
out, although claim 4 further limits the alternatively recited step of
3 We understand Appellant's discussion of claim 4 on page 20 of
Appellant's Appeal Brief applies to claim 16 because Appellant notes that
the Examiner's rejection of claim 16 refers to the Examiner's rejection of
claim 4 (App. Br. 19-20).
14
Appeal2017-010234
Application 13/845,520
"transmitting a request" to include an identifier, claim 4 does not require the
step of transmitting a request (Ans. 14). Even assuming arguendo, that Shao
does not teach an identifier for an object-based video data transmission
session, the identifier of claim 4 is "a limitation that builds on the alternative
limitation in claim [3], while preserving the alternative options," i.e., the
alternative option of "receiving a request," which does not include the
disputed identifier (In re Dominick Theresa, 2018 WL 473764 *3 (Fed. Cir.
2018) (non-precedential)). Thus, because Shao discloses at least one of the
two alternatively recited limitations, i.e., "receiving a request," as discussed
supra, we are not persuaded of Examiner error. Similarly, claim 16, which
depends from claim 15, does not require an identifier.
Accordingly, we are not persuaded the Examiner fails to show Shao
teaches or suggests the limitations as recited in claims 4 and 16. Therefore,
we sustain the rejection of claims 4 and 16 under 35 U.S.C. § 103(a) as
being unpatentable over Shao, A verbuch, and Manor.
35 U.S.C. § 103(a): Claim 5
Appellant contends their invention as recited in claim 5, is patentable
over Shao, Averbuch, Manor, and Bauer (App. Br. 21-22). The issue
presented by the arguments is:
Issue 4: Has the Examiner shown the combination of Shao,
A verbuch, Manor, and Bauer teaches or suggests "acknowledging receiving
of the selection information," as recited in claim 5?
ANALYSIS
15
Appeal2017-010234
Application 13/845,520
Appellant contends the Examiner erred in finding the combination of
Shao, Averbuch, Manor, and Bauer teaches or suggests "acknowledging
receiving of the selection information," as recited in claim 5 (App. Br. 21-
22). Specifically, Appellant argues the Examiner's combination teaches
selecting an object by a user clicking an object, but "[b ]ecause this action is
done directly at the user device via the user interface, there is no
'acknowledging' that would conventionally need to be done" (id. at 22).
We are not persuaded. As discussed above, we agree with the
Examiner (Final Act. 8) that Shao teaches that an object is "selected by the
user in mouse clicking, etc. on the object" (Shao ,r 63). The Examiner
further finds, and we agree, Bauer teaches "acknowledg[ing] to the user that
a certain object is selected" (Final Act. 16) (emphasis omitted) by displaying
the object "in a different display mode, e.g., highlighted" (Bauer 9:36-40).
Appellant's argument that an acknowledgement is not
"conventionally" provided when a selection is made "directly at the user
device via the user interface" (App. Br. 22) does not address the Examiner's
finding that Bauer teaches a selection acknowledgement when a selection is
made at a user device via a user interface (Final Act. 16 (citing Bauer 9:36-
40)).
Additionally, Appellant's argument that "Bauer does not provide any
motivation for combination" was brought up for the first time in Appellant's
Reply Brief (Reply Br. 13-14); this argument is untimely and is therefore
waived (see 37 C.F.R. § 4I.41(b)(2); see McBride v. Merrell Dow and
Pharms., Inc., 800 F.2d 1208, 1211 (D.C. Cir. 1986) (internal citations
omitted)); see also Ex parte Borden, 93 USPQ2d 1473, 1474 (BPAI 2010)
(informative)). We also note the reason to combine need not be found in the
16
Appeal2017-010234
Application 13/845,520
references themselves and, moreover, Appellant does not proffer sufficient
evidence or argument to persuade us the Examiner has not articulated
reasoning with some rational underpinning (see Final Act. 16-17
("inform[ing] a user that an object has indeed been selected"); KSR Int 'l Co.
v. Teleflex Inc., 550 U.S. 398, 418 (2007)).
Accordingly, we are not persuaded the Examiner erred in finding the
combination of Shao, Averbuch, Manor, and Bauer teaches or suggests the
limitations as recited in claim 5. Therefore, we sustain the rejection of claim
5 under 35 U.S.C. § 103(a) as being unpatentable over Shao, Averbuch,
Manor, and Bauer.
35 U.S.C. § 103(a): Claims 6 and 18
Appellant contends the invention as recited in claims 6 and 18, is
patentable over Shao, Averbuch, and Manor (App. Br. 16-17, 20-21). The
issue presented by the arguments is:
Issue 5: Has the Examiner shown Shao teaches or suggests "adapting
the at least a quality of service based on the required bandwidth," as recited
in claim 6 and similarly recited in claim 18?
ANALYSIS
Appellant contends the Examiner erred in finding Shao teaches or
suggests "adapting the at least a quality of service based on the required
bandwidth," as recited in claim 6 and similarly recited in claim 18 (App. Br.
16-17, 20-21 ). Specifically, Appellant argues "Shao, does not mention
adapting quality of service, much less doing so based on a calculated
required bandwidth" (App. Br. 16-17).
17
Appeal2017-010234
Application 13/845,520
We are not persuaded that Shao does not adapt its quality of service.
Instead, as discussed supra, we agree with the Examiner's finding (Final
Act. 8, 11) that Shao teaches "allocat[ing] more of the available bandwidth
to an object requiring better perceptual visual quality" (Shao ,r 63). That is,
Shao improves, i.e., "adapts," its quality of service by allocating additional
bandwidth to an object that requires more bandwidth for better visual
quality.
Accordingly, we are not persuaded the Examiner erred in finding
Shao teaches or suggests the limitations as recited in claim 6 and similarly
recited in claim 18. Therefore, we sustain the rejection of claims 6 and 18
under 35 U.S.C. § 103(a) as being unpatentable over Shao, Averbuch, and
Manor. 4
4 Claim 6, depending from claim 1, recites "wherein said modifying
comprises." Claim 1 does not recite a step of "modifying," and it is unclear
what step of claim 1 claim 6 is meant to further limit. Further, claim 6
recites "calculating a required bandwidth," but claim 1 previously recites
"calculating a necessary bandwidth." The claim language is not clear as to
whether the required bandwidth in claim 6 refers to the necessary bandwidth
in claim 1, or if the calculation of required bandwidth is a different type of
calculation than the calculation of necessary bandwidth. Additionally, the
Specification discusses required bandwidths, but not necessary bandwidths,
and so does not provide clarity as to the distinction, if any, between required
bandwidths and necessary bandwidths. Claim 18 recites similar limitations
as claim 6 and is similarly unclear. In the event of further prosecution, the
Examiner may wish to review claim 6 and claim 18 for compliance with the
definiteness requirement of 35 U.S.C. § 112, second paragraph.
18
Appeal2017-010234
Application 13/845,520
35 U.S.C. § 103(a): Claim 17
Appellant contends the invention as recited in claim 17, is patentable
over Shao, Averbuch, Manor, and Bauer (App. Br. 22-23). The issue
presented by the arguments is:
Issue 6: Has the Examiner shown the combination of Shao,
A verbuch, Manor, and Bauer teaches or suggests "wherein the connection
controller is further configured to acknowledge receiving of the selection
information," as recited in claim 17?
ANALYSIS
Appellant contends the Examiner erred in finding the combination of
Shao, Averbuch, Manor, and Bauer teaches or suggests "wherein the
connection controller is further configured to acknowledge receiving of the
selection information," as recited in claim 17 (App. Br. 22-23).
Specifically, Appellant argues the Examiner's "proposed rejection of this
claim has the user interface itself signaling the user that the object has been
selected" and "the user interface is not a 'connection controller' within the
plain meaning of that term to a person of ordinary skill in the art" (id. at 23).
We are not persuaded. As discussed supra, we agree with the
Examiner's finding that Shao' s receivers or servers teach a "connection
controller" (Ans. 14--15 (citing Shao ,r,r 40, 63, 100, Fig. 1)). As such, we
agree with the Examiner's broad, but reasonable, interpretation that Shao's
servers or receivers provide the user interface providing the
acknowledgement, and so teach a connection controller providing an
acknowledgement.
19
Appeal2017-010234
Application 13/845,520
Accordingly, we are not persuaded the Examiner erred in finding the
combination of Shao, Averbuch, Manor, and Bauer teaches or suggests the
limitations as recited in claim 17. Therefore, we sustain the rejection of
claim 17 under 35 U.S.C. § 103(a) as being unpatentable over Shao,
A verbuch, Manor, and Bauer.
DECISION
The Examiner's rejection of claims 1, 3, 4, 6, 13, 15, 16, 18, and 25
under 35 U.S.C. § 103(a) as being unpatentable over Shao, Averbuch, and
Manor is affirmed.
The Examiner's rejection of claims 5 and 17 under 35 U.S.C. § 103(a)
as being unpatentable over Shao, Averbuch, Manor, and Bauer 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). See 37 C.F.R.
§ 41.50(±).
AFFIRMED
20