Ex Parte Puputti

Patent Trial and Appeal BoardSep 25, 2012

09989301 (P.T.A.B. Sep. 25, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE ________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ________________ Ex parte MATTI PUPUTTI ________________ Appeal 2011-005087 Application 09/989,301 Technology Center 2400 ________________ Before MAHSHID D. SAADAT, JOHNNY A. KUMAR, and LARRY J. HUME, Administrative Patent Judges. HUME, Administrative Patent Judge. DECISION ON APPEAL This is a decision on appeal under 35 U.S.C. § 134(a) of the final rejection of claims 57-76. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. Appeal 2011-005087 Application 09/989,301 2 STATEMENT OF THE CASE 1 The Invention “The present invention relates to broadcasting digital video and audio data that are multiplexed after compression coding, and more particularly to broadcasting such data dynamically over a plurality of transport streams.” Spec. p. 2, ll. 6-8, “Field of the Invention”. Exemplary Claim Exemplary independent claim 57 reads as follows (emphasis added to disputed limitation): 57. A method, comprising: transmitting a network information table, wherein the network information table contains a linkage to a control channel; and transmitting the control channel, wherein the control channel contains access information corresponding to one or more internet protocol based services. 1 Throughout this Decision, we refer to the Appeal Brief (App. Br.) filed Jul. 23, 2010; the Reply Brief (Reply Br.) filed Jan. 10, 2011; the originally- filed Specification (Spec.) filed Nov. 19, 2001; the Final Office Action (FOA) mailed Aug. 3, 2009; and the Examiner’s Answer (Ans.) mailed Nov. 10, 2010. Appeal 2011-005087 Application 09/989,301 3 Prior Art The prior art relied upon by the Examiner in rejecting the claims on appeal is: Levitan US 2002/0147769 A1 Oct. 10, 2002 (filed Apr. 10, 2001) Kessler US 6,741,288 B1 May 25, 2004 (filed Jul. 13, 2000) Rejection on Appeal The Examiner has rejected claims 57-76 under 35 U.S.C § 103(a) as being unpatentable over Kessler in view of Levitan. (Ans. 3-5). GROUPING OF CLAIMS Based upon Appellant’s arguments directed to the above-highlighted limitations that are common to all claims on appeal, we select representative method claim 57 to decide this appeal. (See App. Br. 5-8). See 37 C.F.R. § 41.37(c)(l)(vii). We have only considered those arguments that Appellant actually raised in the Briefs. Arguments Appellant could have made but chose not to make in the Briefs have not been considered and are deemed to be waived. ISSUES Appellant’s Contentions Appellant contends that a person with skill in the art would understand that the PSIP tables disclosed in Kessler provide information about terrestrial broadcast and cable broadcast streams which is in “stark Appeal 2011-005087 Application 09/989,301 4 contrast” to Appellant’s claimed network information table (NIT) that includes tuning information for accessing Internet protocol based services rather than broadcast services, and that Kessler is devoid of any teaching or suggestion of Internet protocol based services. (App. Br. 7). Appellant further contends that the fact that DTV control module 18 in Fig. 1 of Kessler may optionally be connected to the Internet does not, in any way, teach or suggest that Kessler’s system is concerned with accessing internet protocol based services. The only reasonable assumption about Kessler’s disclosure that control module 18 “may also be connected to a network such as the Internet” is that the Internet is an alternative way for the command module 18 to receive commands, such as to select a desired program. There “is absolutely no suggestion that the connection to the Internet is for the purpose of accessing internet protocol based services, as opposed to the terrestrial broadcast and cable broadcast streams. (App. Br. 6-7). Appellant goes on to contend that There is no evidence of record that would have led the skilled artisan to modify Kessler in any manner to provide access to such internet protocol based services, especially in view of the fact that Kessler discloses only terrestrial broadcast and cable broadcast streams . . . [such that] nothing would have suggested to the artisan modifying Kessler to provide for accessing internet protocol based services, let alone providing such services in the manner claims [sic] . . . . (App. Br. 7, emphasis in original). Appeal 2011-005087 Application 09/989,301 5 Appellant further contends that “[t]he teachings of Levitan are not germane to the terrestrial broadcast and cable broadcast streams of Kessler and, therefore, the combination of Kessler and Levitan is improper, such combination being made only through the exercise of impermissible hindsight . . . .” (App. Br. 7, emphasis in original). In addition, Appellant contends: [T]he claimed feature of a “linkage to a control channel” is not taught by the applied references. The linkage disclosed by Kessler, the reference allegedly disclosing the claimed feature, only enables control module 18 to acquire control structure 46 from memory 26 to enable demultiplexer 16 to receive the desired broadcast program, while ignoring other received programs. Such a teaching has no relevance to “a linkage to a control channel . . . the control channel contains access information corresponding to one or more internet protocol based services,” as claimed. Not only are the linkages in Kessler different from those claimed, but the linkage in Kessler provides for a filtering function in ignoring those programs not selected, while the instant claims provide for “access information” corresponding to IP based services. App. Br. 7-8. Next, Appellant contends that, “Kessler describes two separate tables, one including a network information table and the other including a ‘control channel’ . . . [and] contrary to the Examiner’s conclusion, there is no linkage between the control channel of one transmitted table and the network information table of a separately transmitted table.” (Reply Br. 3). Finally, Appellant contends that, “[c]ontrary to the Examiner’s assertion, at page 8 of the Answer, there is no evidence of record that the Appeal 2011-005087 Application 09/989,301 6 PAT of Kessler is linked to any network information table or that the PAT of Kessler contains any access information corresponding to services.” (Reply Br. 4). Issue Did the Examiner err in finding that the combination of Kessler and Levitan teaches or suggests the features of “a network information table, wherein the network information table contains a linkage to a control channel . . . wherein the control channel contains access information corresponding to one or more internet protocol based services,” as recited in independent claim 57? ANALYSIS We have reviewed the Examiner’s rejections in light of Appellant’s arguments that the Examiner has erred. We disagree with Appellant’s conclusions with respect to claims 57-76, and we adopt as our own (1) the findings and reasons set forth by the Examiner in the action from which this appeal is taken and (2) the reasons and rebuttals set forth by the Examiner in the Examiner’s Answer (Ans. 3-8) in response to Appellant’s Arguments (App. Br. 5-8; Reply Br. 2-4). However, we highlight and address specific findings and arguments regarding claim 57 for emphasis as follows. We particularly concur with the conclusion reached by the Examiner that Kessler in combination with Levitan teaches a method that includes, inter alia, “. . . . a network information table, wherein the network information table contains a linkage to a control channel . . . wherein the control channel contains access information corresponding to one or more Appeal 2011-005087 Application 09/989,301 7 internet protocol based services,” as recited in independent claim 57. (See Ans. 3-8). We further agree with the Examiner that Kessler teaches a Network Information Table (NIT) found in Kessler’s Program and System Information Protocol (PSIP) tables, with reference to the ATSP and MPEG standards discussed by Kessler (e.g., see Kessler at col. 1:36 through col. 2:26). We also agree with the Examiner that Kessler’s NIT is linked to a Program Association Table (PAT) and a Program Map Table (PMT) (Ans. 3-4, 7). We further find that Kessler teaches a linkage between the NIT and the PAT which contains access information corresponding to services, and which meets the limitation regarding “linkage [by the network information table] to a control channel.” (Ans. 8). In addition, we note that Appellant’s arguments (App. Br. 5-6; Reply. Br. 2) focus on Kessler’s medium of transmission (i.e., “terrestrial broadcast and cable broadcast streams”) compared to the claimed “access information corresponding to one or more internet protocol based services,” and are not commensurate with the scope of the claims. Claim 57 does not preclude terrestrial broadcast streams, and we find that accounting for the differences between terrestrial-based and IP-based services are within the knowledge of a person with ordinary skill in the telecommunications arts, particularly in view of Kessler’s teaching of the permissive nature of standards (see Kessler at col. 1:58-65). We also find that this distinction does not persuasively show that the Examiner erred in combining the references in the manner set forth in the Answer, and that the Examiner’s position is not contradictory to the teachings of Kessler. In Appeal 2011-005087 Application 09/989,301 8 addition, we find that Kessler is not incompatible with Internet Protocol (IP) transmission of data, particularly when claim 57 merely requires that “the control channel contains access information corresponding to one or more internet protocol based services.” In further support of the Examiner’s position, we note that Kessler Fig. 1 and the related discussion (see Kessler col. 4) teach that Kessler’s DTV Control Module 18 may be linked to the Internet. Accordingly, since Appellant has not presented convincing arguments that the Examiner erred in either the findings of fact regarding the cited art or in the proffered claim construction, we sustain the Examiner’s rejection of independent claim 57, as well as the rejection of claims 58-76 which fall with claim 57. CONCLUSIONS 1. The Examiner did not err in rejecting claims 57-76 as being unpatentable under 35 U.S.C. § 103(a) over Kessler and Levitan. 2. Claims 57-76 are not patentable. DECISION The decision of the Examiner to reject claims 57-76 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)(iv). AFFIRMED ELD