Ex Parte Periyalwar et al

Patent Trial and Appeal BoardMar 31, 2015

11718006 (P.T.A.B. Mar. 31, 2015)

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. 11/718,006 03/03/2008 Shalini Periyalwar 7000-489-1A 1970 94149 7590 03/31/2015 Fish & Richardson PC P.O.Box 1022 Minneapolis, MN 55440 EXAMINER MATTIS, JASON E ART UNIT PAPER NUMBER 2461 MAIL DATE DELIVERY MODE 03/31/2015 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 SHALINI PERIYALWAR and BILL GAGE ____________ Appeal 2012-011601 Application 11/718,006 Technology Center 2400 ____________ Before MARC S. HOFF, ANDREW J. DILLON, and BRETT C. MARTIN, Administrative Patent Judges. HOFF, Administrative Patent Judge. DECISION ON APPEAL Appellant(s) appeal under 35 U.S.C. § 134(a) from a final rejection of claims 1-17, 19-23, 25-36, 38 and 39.1 We have jurisdiction under 35 U.S.C. § 6(b). We affirm. 1 Claims 18, 24, and 37 have been cancelled. Appeal 2012-011601 Application 11/718,006 2 STATEMENT OF THE CASE Appellant’s invention is a system and method for distributing different types of content via different types of wireless communication networks. For example, content can be delivered using a select delivery method over a cellular network, a local wireless network, or a broadcast network. In one embodiment, a service delivery controller is associated with one or more content providers to effect delivery of content to mobile terminals. Depending on the capabilities of the mobile terminals and the number of mobile terminals requesting or receiving the content, the service delivery controller will determine a delivery method for delivering the content to the mobile terminals, as well as a network or networks through which the content should be routed to reach the mobile terminals. The locations of the mobile terminals may result in the content being directed to one or more zones within a given network, or alternatively, broadcast throughout the network or networks (Spec. 2, 3). Independent claim 1, reproduced below, is representative of the subject matter on appeal. 1. A method for selectively delivering content over disparate networks comprising: • determining at least one service area to deliver content for reception by at least one mobile terminal; • selecting a delivery method to use for delivering the content to the at least one mobile terminal; • sending network selection indicia and address indicia to the at least one mobile terminal, the network selection indicia corresponding Appeal 2012-011601 Application 11/718,006 3 to at least one of the disparate networks to use for receiving the content, and the address indicia bearing on an address to use for receiving the content; • determining a number of mobile terminals receiving or scheduled to receive the content; • determining the at least one service area based at least in part on the number of mobile terminals receiving or scheduled to receive the content; and • effecting delivery of the content to the at least one service area in the at least one of the disparate networks using the address, such that the at least one mobile terminal can receive the content in the service area via the at least one disparate network in light of the address indicia; and wherein the service area is changed to a new service area and further comprising determining to change delivery of the content to the new service area and effecting delivery of the content to the new service area. REFERENCES Keller U.S. 2007/0058626 A1 March 15, 2007 Dorenbosch U.S. 7,453,831 B2 November 18, 2008 Kossi U.S. 7,295,568 B2 November 13, 2007 Lipsanen U.S. 2006/0020547 A1 January 26, 2006 Verma U.S. 7,046,998 B2 May 16, 2006 Appeal 2012-011601 Application 11/718,006 4 REJECTIONS Claims 1-10, 12-17, 19-23, 25-28, and 30-32 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Keller in view of Dorenbosch and Kossi. Claims 11, 33-36, 38, and 39 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Keller in view of Dorenbosch, Kossi, and Lipsanen. Claim 29 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Keller in view of Dorenbosch, Kossi, and Verma. ISSUES With respect to independent claim 1, Appellants argue that Keller does not disclose or suggest that the service area is changed to a new service area, determining to change delivery of content to the new service area, and effecting delivery of the content to the new service area (App. Br. 7).2 With respect to independent claim 33, Appellants argue that Keller does not disclose or suggest a mobile terminal receiving new address indicia associated with the content while the content is being received (App. Br. 9). Appellants’ arguments present us with the following issues: 1. Does Keller as modified by Dorenbosch and Kossi disclose or suggest the service area being changed to a new service area, determining to 2 Appellants’ Brief initially appears to argue that Keller does not disclose “determining the at least one service area based at least in part on the number of mobile terminals receiving or scheduled to receive the content” (App. Br. 7) but presents no discrete argument directed to that proposition. We consider this limitation to be unargued. Appeal 2012-011601 Application 11/718,006 5 change delivery of the content to a new service area, and effecting delivery of the content to the new service area? 2. Does Keller in combination with Dorenbosch, Kossi, and Lipsanen disclose or suggest receiving new address indicia associated with the content while the content is being received? PRINCIPLES OF LAW Section 103(a) forbids issuance of a patent when ‘the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.’ KSR Int'l Co. v. Teleflex, Inc., 550 U.S. 398, 406 (2007). The question of obviousness is resolved on the basis of underlying factual determinations including (1) the scope and content of the prior art, (2) any differences between the claimed subject matter and the prior art, (3) the level of skill in the art, and (4) where in evidence, so-called secondary considerations. Graham v. John Deere Co., 383 U.S. 1, 17-18 (1966). See also KSR, 550 U.S. at 407, (“While the sequence of these questions might be reordered in any particular case, the [Graham] factors continue to define the inquiry that controls.”) The references represent the level of ordinary skill in the art. See In re GPAC Inc., 57 F.3d 1573, 1579 (Fed. Cir. 1995) (finding that the Board of Patent Appeals and Interference did not err in concluding that the level of ordinary skill was best determined by the references of record); In re Oelrich, 579 F.2d 86, 91 (CCPA 1978) ("[T]he PTO usually must evaluate . . . the level of ordinary skill solely on the cold words of the literature."). Appeal 2012-011601 Application 11/718,006 6 ANALYSIS CLAIMS 1-17, 19-23, 25-28, AND 30-32 Appellants’ argument that Keller does not disclose “wherein the service area is changed to a new service area and further comprising determining to change delivery of the content to the new service area and effecting delivery of the content to the new service area” (App. Br. 7) is not persuasive. We agree with the Examiner’s finding that Keller discloses changing the parameters required for a streaming session “according to the needs of the subgroups” of users, and sending “the changed parameters to the group members” (Keller ¶ [24]). Keller further discloses that “replication of the streaming flow is based on an access network, in which users are located or/and is based on the geographic area and/or on the Quality of Service requested by the group members” (Keller ¶ [27]). Keller yet further discloses that it is possible to perform a dedicated adaptation for a small coverage area or a QoS subgroup. When a decision to perform a dedicated adaption is made, in the intermediate node, “[a] new message is then . . . distributed along the multicast delivery tree, indicating the stream and the destination” (Keller ¶ [69]). We agree with the Examiner’s synthesis of these teachings. Taken together, we find that Keller’s teachings – especially those concerning changing replication of a streaming flow based on changes in an access network in which users are located and/or the geographic area of group members (¶ [27]), and changing parameters for a streaming session according to the needs of a subgroup (¶ [24]) -- amount to an implicit Appeal 2012-011601 Application 11/718,006 7 disclosure of the claimed limitation to change the service area to a new service area, determining to change delivery of the content to the new service area, and effecting delivery of the content to the new service area (Ans. 24-25). We find that given the inherent mobility of mobile telephones (“terminals”), Keller’s combined disclosures instruct that as the terminals are moved, the parameters for a streaming session in which data is streamed to a plurality of terminals will necessarily be changed to effect successful data transmission. Appellants’ further argument that the Examiner has not set forth the level of ordinary skill in the art (App. Br. 8) is not persuasive. We find that the level of ordinary skill in the art is set forth by the content of the prior art cited by the Examiner. See In re GPAC Inc., 57 F.3d at 1579. We conclude that the Examiner did not err in rejecting claims 1-10, 12-17, 19-23, 25-28, and 30-32 under § 103(a) over Keller in view of Dorenbosch and Kossi. We sustain the rejection. We further sustain the § 103 rejection of claim 11 over Keller in view of Dorenbosch, Kossi, and Lipsanen, not separately argued. CLAIMS 33-36, 38, AND 39 We are not persuaded by Appellants’ argument that Keller in view of Dorenbosch, Kossi, and Lipsanen does not disclose receiving new address indicia associated with the content while the content is being received (App. Br. 9). As noted in the analysis with respect to claim 1, Keller discloses that replication of a streaming flow is “based on an access network, in which users are located or/and is based on the geographic area and/or the Quality of Service requested by the group members” (¶ [27]). Keller further discloses Appeal 2012-011601 Application 11/718,006 8 that a SIP: Invite session message is sent to inform users about an upcoming streaming session with the corresponding parameters (¶ [54]). After a user sends the message SIP: 200 OK, a RTSP connection is setup, including RTSP: SETUP and RTSP: 200 OK messages. The RTSP: SETUP message can include parameters being changed according to performed negotiation (¶ [54]). As the Examiner concedes, Keller does not teach that the SIP invite messages used to indicate content changes also include address indicia. The Examiner finds that Dorenbosch discloses sending a multicast SIP INVITE message including a group multicast message to be used by communication units to receive multicast content (Ans. 27; Dorenbosch col. 6, ll. 29-43). As we discussed supra, putting together the teachings expressed in Keller, we find that Keller inherently discloses that as the mobile terminals of the invention are moved, new streaming parameters that correspond to their changed location are transmitted to the terminals so that data may be successfully streamed to them. As a corollary, then, Keller discloses that mobile terminals receive new (changed) parameters associated with content while content is being received. We agree with the Examiner’s finding that Dorenbosch discloses transmitting “address indicia” used by terminals to receive multicast content. We agree with the Examiner’s conclusion that it would have been obvious to modify Keller in view of Dorenbosch, Kossi, and Lipsanen, so that mobile terminals are informed of an identifier of content and may receive and correctly identify content based on address indicia (Ans. 19). Appellants have not persuasively demonstrated that the Examiner erred in rejecting claims 33-36, 38, and 39 over Keller in view of Appeal 2012-011601 Application 11/718,006 9 Dorenbosch, Kossi, and Lipsanen. We sustain the Examiner’s § 103 rejection. CLAIM 29 Appellants rely on their claim 1 arguments in asserting the patentability of claim 29 (App. Br. 10). Because we sustain the rejection of claim 1, we also sustain the § 103 rejection of claim 29 over Keller in view of Dorenbosch, Kossi, and Verma, for the reasons expressed with respect to claim 1, supra. CONCLUSIONS 1. Keller as modified by Dorenbosch and Kossi suggests the service area being changed to a new service area, determining to change delivery of the content to a new service area, and effecting delivery of the content to the new service area. 2. Keller in combination with Dorenbosch, Kossi, and Lipsanen suggests receiving new address indicia associated with the content while the content is being received. DECISION The Examiner’s decision rejecting claims 1-17, 19-23, 25-36, 38 and 39 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)(1). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED