Ex Parte Relan et al

Patent Trial and Appeal BoardJul 1, 2014

10819868 (P.T.A.B. Jul. 1, 2014)

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. 10/819,868 04/07/2004 Sandeep Relan 106861-0418 7242 121312 7590 07/01/2014 Foley & Lardner LLP/ Broadcom Corporation 3000 K Street N.W, Suite 600 Washington, DC 20007-5109 EXAMINER ALAM, MUSHFIKH I ART UNIT PAPER NUMBER 2426 MAIL DATE DELIVERY MODE 07/01/2014 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 SANDEEP RELAN, BRAJABANDHU MISHRA, and RAJENDRA KHARE ___________ Appeal 2011-012094 Application 10/819,868 Technology Center 2400 ____________ Before CAROLYN D. THOMAS, JOHNNY A. KUMAR, and DANIEL N. FISHMAN, Administrative Patent Judges. FISHMAN, Administrative Patent Judge. DECISION ON APPEAL1 1 Throughout this Decision, we refer to Appellants’ Appeal Brief (“App. Br.” filed January 3, 2011), Appellants’ Reply Brief (“Reply Br.” filed May 31, 2011), the original Specification (“Spec.” filed April 7, 2004), and the Examiner’s Answer (“Ans.” mailed March 30, 2011) for the respective positions of Appellants and the Examiner. Appeal 2011-012094 Application 10/819,868 2 This is an appeal under 35 U.S.C. § 134(a) of finally rejected claims 33-46. Claims 1-32, 47, and 48 are cancelled. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. STATEMENT OF THE CASE THE INVENTION Appellants’ invention relates generally to transmitting on-demand multimedia information to an end user’s set-top-box (“STB”). See generally Abstract. Claim 33, reproduced below, is illustrative: 33. A multimedia distribution network comprising a plurality of end-user STBs adapted to request a multimedia channel, wherein the end-user STBs comprise: a processor for processing and managing channel requests and received multimedia channel information, wherein multimedia channel information comprises encoded audio information and encoded video information; a decoder for decoding the received multimedia channel information, the multimedia channel information is encoded for transmission, wherein the decoder comprises a combination audio and video decoder unit; a transmitter for transmitting channel requests to the distribution unit; and a receiver for receiving multimedia channel information and messages associated only with the channel requested, wherein the transmitter and receiver comprise a combination transmitter/receiver unit, and an interface to a communication network, wherein the interface only receives electronic signals transmitting multimedia channel information and messages associated only with the channel requested from the communication network. Appeal 2011-012094 Application 10/819,868 3 THE REJECTIONS Claim 33 is rejected under 35 U.S.C. § 103(a) as unpatentable over Sugimoto (US 2003/0051251 A1) and Horn (US 7,240,358 B2). Claims 34-46 are rejected under 35 U.S.C. § 103(a) as unpatentable over Sugimoto, Horn, Kahn (US 5,978,649), and Pack (US 7,337,457 B2). Only those arguments actually made by Appellants have been considered in this decision. Arguments that Appellants did not make in the Briefs are deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(vii). We have reviewed the Examiner’s rejections in light of Appellants’ arguments that the Examiner has erred. App. Br. 6-9; Reply Br. 6-10. We disagree with Appellants’ conclusions. We adopt as our own the findings and reasons set forth by the Examiner in the action from which this appeal is taken and as set forth by the Examiner in the Examiner’s Answer in response to Appellants’ Appeal Brief (see Ans. 10-12). However, we highlight and address specific arguments and findings for emphasis as follows. CLAIM 33 The Examiner finds Sugimoto teaches the recited interface that “only receives electronic signals . . . associated only with the channel requested” as recited in claim 33. Ans. 4 (citing Sugimoto ¶¶ 0032, 0040, 0049). Appellants argue Sugimoto teaches unicasting and refers to point-to-point communications in contrast to point-to-multipoint. App. Br. 9. Appellants thus contend the Examiner erred because “Sugimoto’s teaching of ‘unicast’ does not teach ‘wherein the interface only receives electronic signals transmitting multimedia channel information and messages associated only Appeal 2011-012094 Application 10/819,868 4 with the channel requested from the communication network [(referred to herein as the ‘Disputed Limitation’)].’” Id. We are not persuaded the Examiner has erred because Appellants provide no persuasive evidence of the alleged error. Specifically, Appellants provide no persuasive evidence or argument regarding why unicasting as taught by Sugimoto is not the same as the Disputed Limitation. Rather, Appellants merely provide conclusory remarks that Sugimoto’s unicasting is different from what is claimed. It is well settled that mere attorney’s arguments and conclusory statements, which are unsupported by factual evidence, are entitled to little probative value. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984). Attorney argument is not evidence. In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974). Nor can such argument take the place of evidence lacking in the record. Meitzner v. Mindick, 549 F.2d 775, 782 (CCPA 1977). Furthermore, we agree with the Examiner that Sugimoto’s unicasting teaches or reasonably suggests the Disputed Limitation. Ans. 4, 11. In particular, we find Sugimoto’s unicasting transmits information to a specific Internet Protocol (“IP”) address associated with a specific set-top-box (“STB”). See, e.g., Sugimoto ¶ 0032. Even if Sugimoto’s unicast mode is utilized only for transmitting missing portions of a requested title, the Disputed Limitation is met—at least during the period of time in which the missing portions are unicast to a particular STB at a particular IP address. Thus, we find Sugimoto’s unicast mode teaches or reasonably suggests the Disputed Limitation. Appeal 2011-012094 Application 10/819,868 5 In view of the above discussion, we are not persuaded the Examiner erred in rejecting claim 33 and we, therefore, sustain the Examiner’s rejection of claim 33. CLAIMS 34-46 Appellants do not separately argue independent claim 34 or claims 35- 46 (dependent from claim 34). Claim 34 is similar to claim 33 and was rejected for similar reasons. Ans. 5-6. We, therefore, sustain the rejection of claims 34-46 for the same reasons as claim 33 discussed supra. DECISION For the reasons discussed above, the Examiner’s decision to reject claims 33-46 under 35 U.S.C. § 103(a) is affirmed.2 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 rwk 2 Should this application proceed with further prosecution, we suggest the Examiner consider whether the Specification satisfies the written description requirements of 35 U.S.C. § 112, first and second paragraphs as regards recited features relating to an interface (claim 33) and an antenna (claim 34) that receive only specific, requested electronic signals in view of the ubiquitous nature of radio frequency transmissions in a variety of frequency bands.