Ex Parte Pickens et al

Patent Trial and Appeal BoardAug 19, 2013

11673484 (P.T.A.B. Aug. 19, 2013)

UNITED STATES PATENT AND TRADEMARKOFFICE 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. 11/673,484 02/09/2007 John Pickens 60374.0532USI1/956089 2777 62658 7590 08/19/2013 MERCHANT & GOULD SCIENTIFIC ATLANTA, A CISCO COMPANY P.O. BOX 2903 MINNEAPOLIS, MN 55402-0903 EXAMINER EL CHANTI, HUSSEIN A ART UNIT PAPER NUMBER 3663 MAIL DATE DELIVERY MODE 08/19/2013 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 JOHN PICKENS, KIRK BLATTMAN, and W. PAUL SHERER ____________ Appeal 2011-003382 Application 11/673,4841 Technology Center 3600 ____________ Before JOSEPH F. RUGGIERO, CAROLYN D. THOMAS, and LARRY J. HUME, Administrative Patent Judges. THOMAS, Administrative Patent Judge. DECISION ON APPEAL 1 The real party in interest is Cisco Technology, Inc. Appeal 2011-003382 Application 11/673,484 2 STATEMENT OF THE CASE Appellants seek our review under 35 U.S.C. § 134(a) of the Examiner’s final decision rejecting claims 1-3, 5, 8-13, and 16-27. Claims 4, 6, 7, 14, and 15 are indicated as allowable if rewritten to overcome rejection(s) 2 in Office Action and to include all of the limitations of the base claim and any intervening claims. We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We REVERSE. The present invention relates generally to techniques for streaming digital video content. See Spec., ¶ [0003]. Claim 1 is illustrative: 1. A method for streaming digital video content to clients in a digital video network, the method comprising: identifying a new stream of digital video content that is intended for a client; providing the new stream to the client using forward error correction for a limited initial period; and ending the use of forward error correction after the limited initial period while continuing to provide the new stream to the client. Appellants appeal the following rejection: Claims 1-3, 5, 8-13, and 16-27 are rejected under 35 U.S.C. § 103(a) 2 In the Answer, the Examiner inadvertently indicates that rejection(s) under “35 U.S.C. 112, 2nd paragraph” needs to be overcome (see Ans. 9), however, the record shows that the rejection is instead under 35 U.S.C. § 103(a). Appeal 2011-003382 Application 11/673,484 3 as being unpatentable over Galensky (US 6,845,398 B1, Jan. 18, 2005) and Guey (US 6,594,793 B1, July 15, 2003). ANALYSIS Claims 1-3, 5, 8-13, and 16-27 Issue: Did the Examiner err in finding that the combination of Galensky and Guey teaches and/or suggests “ending the use of forward error correction after the limited initial period while continuing to provide the new stream,” as set forth in claim 1? Appellants “agree that Guey teaches using forward error correction” (App. Br. 8), but contend that “[n]either Galensky nor Guey make any mention of ending the use of forward error correction after a limited initial period” (id. at 11). The Examiner found: Therefore, Galensky teaches the system and method [sic] performs correction to the initial stream by transferring at a maximum bandwidth for an initial period of time until a 5-10 second is created to prevent an error that may occur if the buffer is empty. . . . Guey shows that it is well known in the art to implement the use of forward error correction . . . . (Ans. 10). Here, the issue turns on whether the cited art teach and/or suggest “ending the use of forward error correction after the limited initial period” as both parties agree that forward error correction is taught in Guey. However, the Examiner has not established that Guey discloses any “ending” period for the forward error correction, but instead directs our attention to Galensky for allegedly teaching “ending the use of forward error correction after the Appeal 2011-003382 Application 11/673,484 4 limited initial period while continuing to provide the new stream to the client” (see Ans. 10). However, the cited portion of Galensky merely discloses that to serve more subscribers . . . it is advantageous to conserve bandwidth . . . . One way of accomplishing this is to preferably transmit data at the highest data rate possible . . . at the point in time when the data stream is initiated . . . to permit the micro- processor . . . to create approximately 5-10 seconds of buffer. (Galensky, col. 5, l. 66 to 6, l. 10). In other words, Galensky temporarily stores the streamed multimedia file in a buffer. In Galensky, the blocks of data stored in the buffer are monitored and the network increases the rate that the blocks are transmitted over the network in the event that the data stored in the buffer falls below a minimum threshold level (see Abstract). Based on the record before us, we find error in the Examiner’s interpretation that Galensky is ending “correction” after the initial period while continuing to provide the new stream (see Ans. 10), as the Examiner has not shown any correction techniques being performed and subsequently ending any such correction in the cited portion of Galensky. Furthermore, Galensky monitors the buffer and continuously increases and/or decreases the data transmission rate based on the threshold level (Galensky, col. 6, ll. 18-27). In other words, Galensky’s increase in data rate is not limited to the initiation of the data stream, but is imposed if the buffer later falls beneath a minimum threshold level. As a result, we find that the Examiner has failed to establish that Galensky and/or Guey, either, alone or in combination, teaches and/or suggests ending the use of forward error correction after the limited initial period while continuing to provide the new stream, as recited in claim 1. Appeal 2011-003382 Application 11/673,484 5 We are therefore constrained by the record before us to find that the Examiner erred in rejecting independent claim 1 and claims 2, 3, 5, 8-13, and 16-27 for similar reasons. Since this issue is dispositive regarding our reversal of claims 9-22, we need not address Appellants’ separate arguments regarding these claims (App. Br. 13-15). DECISION We reverse the Examiner’s §103(a) rejection. REVERSED gvw