Ex Parte Pawson

Patent Trial and Appeal Board

Jan 19, 2017

12356193 (P.T.A.B. Jan. 19, 2017)

United States Patent and Trademark Office
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
12/356,193 01/20/2009 David J. Pawson 14007-CIP5 FSP0264-C1 8363
88095 7590
ARRIS Enterprises, LLC
(FSP)
3871 Lakefield Drive
Suwanee, GA 30024
EXAMINER
WOOLCOCK, MADHU
ART UNIT PAPER NUMBER
2451
NOTIFICATION DATE DELIVERY MODE
01/23/2017 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):
ARRIS .docketing @ arrisi.com
mirho@fspllc.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DAVID J. PAWSON
Appeal 2015-007317
Application 12/356,1931
Technology Center 2400
Before JOSEPH L. DIXON, JOHN A. EVANS, and KAMRAN JIVANI,
Administrative Patent Judges.
JIVANI, Administrative Patent Judge.
DECISION ON APPEAL
Appellant seeks our review under 35 U.S.C. § 134(a) of the
Examiner’s final decision rejecting claims 53—60 and 64, which are all the
claims pending in the present application. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
1 Appellant identifies ARRIS Enterprises Inc. and Alcatel/Lucent as the real
parties in interest. App. Br. 2.
Appeal 2015-007317
Application 12/356,193 OF
STATEMENT OF THE CASE
The present application relates to providing improved quality digital
media in response to relaxed streaming constraints. Spec. 1:10—11.
Claim 53 is illustrative and are reproduced below.
53. A method of operating a stream server, the stream
server causing data streams to be provided from one or
more stored audio/visual files, the method comprising:
receiving a signal from a client device, said signal
including an indication of a client requested presentation
action that, when put into effect by the stream server,
involves reducing a data rate of audio data of a first
audio/visual stream being sent from the stream server to
the client device or eliminating a transmission of the audio
data of the first audio/visual stream to the client device;
implementing the client requested presentation
action, said act of implementing the client requested
presentation action including reducing the data rate of the
audio data of the first audio/visual stream or eliminating
the transmission of the audio data of the first audio/visual
stream to the client device; and
determining an amount that a data rate of a second
audio/visual data stream that is being sent concurrently
with the first audio/visual data stream may be increased as
a result of an effect on transmission bandwidth
corresponding to the reduction in the data rate of the audio
data of the first audio/visual stream or the elimination of
the audio data of the first audio/visual stream.
The Rejections
Claims 53—60 stand rejected under 35 U.S.C. § 112, first paragraph, as
failing to comply with the written description requirement.
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Application 12/356,193 OF
Claims 59 and 64 stand rejected under 35U.S.C. § 112, second
paragraph, as indefinite.
Claim 64 stands rejected for non-statutory double patenting over
claim 2 ofPawson ’698 (US 7,512,698 Bl; Mar. 31, 2009).
Claims 53, 55, and 58 stand rejected for non-statutory obviousness-
type double patenting over claims 1, 4, and 10 ofPawson ’698 and Beyda.
Claims 53, 58, and 60 stand rejected under 35 U.S.C. § 103(a) over
Beyda et al. (US 6,453,336 Bl; Sept. 17, 2002) and Oz et al.
(US 2007/0177632 Al; Aug. 2, 2007).
Claims 54 and 59 stand rejected under 35 U.S.C. § 103(a) over Beyda,
Oz, and Howard et al. (US 2005/0259751 Al; Nov. 24, 2005).
Claims 55 and 56 stand rejected under 35 U.S.C. § 103(a) over Beyda,
Oz, and Anderlind et al. (US 2010/0157825 Al; June 24, 2010).
Claim 57 stands rejected under 35 U.S.C. § 103(a) over Beyda, Oz,
Anderlind, and Safadi (US 6,487,721 Bl; Nov. 26, 2002).
Claim 64 stands rejected under 35 U.S.C. § 103(a) over Beyda and
Maher (US 5,204,862; Apr. 20, 1993).
ANALYSIS
I. Claim Construction
Independent claims 53, 55, 58, and 64 each recite at least one
“audio/visual stream.” The Examiner construes “each of these streams [as]
including both audio and video data.” Ans. 2.
We apply the broadest reasonable interpretation of claim terms,
consistent with the Specification, as would be understood by one of ordinary
skill in the art. In re Am. Acad. ofSci. Tech Ctr., 367 F.3d 1359, 1364 (Fed.
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Application 12/356,193 OF
Cir. 2004) (citations omitted). The Examiner’s construction requiring each
claimed audio/visual stream to include both audio and video data is
inconsistent with the claims and Specification, and is not, therefore, the
broadest reasonable interpretation. For instance, claim 53 recites eliminating
the audio portion of a first audio/visual stream. This claimed elimination
results in an audio/visual stream containing only video, not audio and video
as the Examiner’s construction would require. Further, the Specification
discloses an embodiment where, in response to a mute operation,
multiplexor 510 “filters and discards the identified audio packets” from a
single audio/visual stream—namely SPTS 520—resulting in a stream
containing “the original media presentation, but not any audio packets.”
Spec. 13:15—22. Thus, contrary to the Examiner’s finding, we determine the
claimed “audio/visual stream” encompasses a stream containing audio
and/or visual data.
II. Written Description Rejection
The Examiner rejects claims 53—60 as lacking adequate written
description in the Specification for the claimed multiple, concurrent
audio/video streams. Final Act. 6—9. Appellant contends the Examiner errs
in this rejection. App. Br. 9—11; Reply Br. 2-4.2
We are persuaded the Examiner has not established a lack of adequate
written description in the Specification as a whole, such that an artisan of
ordinary skill would fail to understand that the inventor had possession at
that time of the later claimed subject matter. See In re Kaslow, 707 F.2d
2 The Appeal Brief and Reply Brief each lack page numbers. We treat each
Brief as if it were numbered sequentially beginning with its cover page.
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Application 12/356,193 OF
1366, 1375 (Fed. Cir. 1983). In particular, we agree with Appellant because
the Examiner’s findings are predicated upon a construction of the claimed
“audio/video stream” not commensurate with our construction of that term
as set forth above. See supra Section I. Applying our construction of the
claimed “audio/video stream,” we find sufficient written description of the
multiple, concurrent audio/video streams recited in claims 53—60 is set forth
in the Specification at least on page 8, wherein the Specification discloses
the “real-time transmission of digital media data streams” to a plurality of
“clients (1-n)” via stream server 110 and “video pump 130 through the high
bandwidth network 150.” Spec. 8:6—12.
Accordingly, we do not sustain the Examiner’s rejection of claims 53—
60 under 35 U.S.C. § 112, first paragraph, for lack of written description
support.
III. Obviousness Rejections
The Examiner finds claims 53—60 are not entitled to priority based on
Pawson ’698 because the specification of Pawson ’698 lacks adequate
written description of the claimed multiple, concurrent audio/video streams.
Final Act. 3—5. Applying a priority date of January 20, 2009—the filing
date of the present application—the Examiner finds Oz constitutes prior art
to the present application and rejects claims 53—60 as rendered obvious by
Oz in combination with various other references. See Final Act. 3, 14—26.
Appellant contends the Examiner errs in this rejection because the
specification of Pawson ’698 “is identical to” the present Specification and
contains adequate written description of the claimed multiple, concurrent
audio/video streams. App. Br. 10.
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Application 12/356,193 OF
We agree with Appellant because the Examiner’s findings are
predicated upon a construction of the claimed “audio/video stream” not
commensurate with our construction of that term as set forth above. See
supra Section I. Applying our construction of the claimed “audio/video
stream,” we find Pawson ’698 contains the same disclosure relied upon
above in determining that the present Specification contains sufficient
written description of claims 53—60. Compare Pawson ’698, 3:40-49 with
Spec. 8:6—12; see also supra Section II.
With regard to independent claim 64, the Examiner accords claim 64 a
priority date of September 1, 2000 based on Pawson ’698. Final Act. 3.
Appellant fails to address in the Appeal Brief the Examiner’s rejection of
independent claim 64 as obvious over Bey da and Maher. See App. Br. 11
(arguing only the obviousness rejections of claims 53—60). Arguments not
made are considered waived. See 37 C.F.R. § 41.37(c)(l)(iv) (2014).
Accordingly, we do not sustain the Examiner’s obviousness rejections
of claim 53—60. We summarily sustain, however, the Examiner’s
obviousness rejection of independent claim 64.
IV. Indefiniteness Rejections
The Examiner rejects claims 59 and 64 under 35U.S.C. § 112, second
paragraph, as indefinite. Appellant fails to address this rejection in the
Appeal Brief. Arguments not made are considered waived. See 37 C.F.R.
§ 41.37(c)(l)(iv) (2014). Accordingly, we summarily sustain the
Examiner’s rejection of claims 59 and 64 under 35 U.S.C. § 112, second
paragraph, as indefinite.
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Application 12/356,193 OF
V. Double Patenting Rejections
Claims 53, 55, and 58 stand rejected for non-statutory obviousness-
type double patenting over claims 1, 4, and 10 of Pawson ’698 and Beyda.
Feb. 24, 2012 Non-Final Act. 4—8; Final Act. 11. Further, claim 64 stands
rejected under non-statutory double patenting by claim 2 of Pawson ’698.
Feb. 24, 2012 Non-Final Act. 8—10; Final Act. 11. Appellant fails to address
these rejections in the Appeal Brief.3 Arguments not made are considered
waived. See 37 C.F.R. § 41.37(c)(l)(iv) (2014).
Accordingly, we summarily sustain the Examiner’s non-statutory
obviousness-type double patenting rejection of claim 64. We further
summarily sustain the Examiner’s non-statutory obviousness-type double
patenting rejection of claims 53, 55, and 58.
DECISION
We affirm the Examiner’s decisions rejecting claims 53, 55, 58, 59,
and 64.
We reverse the Examiner’s decisions rejecting claims 54, 56, 57, and
60.
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-IN-PART
3 We note that the Terminal Disclaimer, filed on June 4, 2012, was
disapproved. Consequently, the Terminal Disclaimer did not obviate the
rejection.
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