Ex Parte Vandaele

Patent Trial and Appeal BoardSep 8, 2014

11743128 (P.T.A.B. Sep. 8, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte PIET MICHEL ALBERT VANDAELE ____________ Appeal 2012-005511 Application 11/743,128 Technology Center 2400 ____________ Before JOHN A. JEFFERY, MARC S. HOFF, and ANDREW J. DILLON, Administrative Patent Judges. JEFFERY, Administrative Patent Judge. DECISION ON APPEAL Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s decision to reject claims 1, 3, 5, 7–16, and 18–20. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. STATEMENT OF THE CASE Appellant’s invention changes or “zaps” between channels or video streams in a digital TV environment. To this end, a join request is sent from the viewer towards a TV server, and a low-resolution version of the TV channel is unicasted temporarily to the viewer. Later, the system switches to a multicasted, high-resolution version of the channel. See generally Abstract; Spec. 1, 5. Claim 1 is illustrative: Appeal 2012-005511 Application 11/743,128 2 1. A method for zapping towards a TV channel, the method comprising: sending a join request for the TV channel from a viewer towards a TV server; intercepting the join request at an intermediate network node between the TV server and an endpoint node that decodes a signal for display to the viewer; replacing the join request with a request for a low resolution version of the TV channel; temporarily unicasting towards the viewer the low resolution version of the TV channel based on a load of the TV server; and switching from the low resolution version of the TV channel to a multicasted high resolution version of the TV channel. THE REJECTIONS The Examiner rejected claims 1, 3, 5, and 7–16 under 35 U.S.C. § 103(a) as unpatentable over Green (US 2005/0190781 A1; Sept. 1, 2005) and Chen (US 2005/0091344 A1; Apr. 28, 2005). Ans. 4–11; Fin. Rej. 3– 11.1 1 Although the Examiner omits the statement of this rejection on page 4 of the Answer, the Examiner’s grounds of rejection on pages 4 to 11 of the Answer nonetheless correspond to those indicated on pages 3 to 11 of the Final Rejection that rejects claims 1, 3, 5, and 7–16 under § 103 over Green and Chen. Accord App. Br. 2; Reply Br. 1 (restating the Examiner’s obviousness rejection over Green and Chen). Accordingly, we reproduce the Examiner’s statement of that rejection here for clarity and treat the Examiner’s error in this regard as harmless. Throughout this opinion, we refer to (1) Final Rejection mailed March 14, 2011 (“Fin. Rej.”); (2) the Appeal Brief filed September 1, 2011 (“App. Br.”); (3) the Examiner’s Answer mailed December 1, 2011 (“Ans.”); and (4) the Reply Brief filed January 12, 2012 (“Reply Br.”). Appeal 2012-005511 Application 11/743,128 3 The Examiner rejected claims 18–20 under 35 U.S.C. § 103(a) as unpatentable over Green, Chen, and Richardson (US 2003/0093544 A1; May 15, 2003). Ans. 12. THE REJECTION OVER GREEN AND CHEN The Examiner finds that Green zaps towards a TV channel by (1) sending a join request for the TV channel towards a TV server; (2) temporarily unicasting a low-resolution version of the channel; and (3) switching from the low-resolution version to a multicasted high-resolution version of the channel. Ans. 4–5. The Examiner acknowledges that Green does not send the low-resolution version based on TV server load, and cites Chen for this feature. Ans. 5. According to the Examiner, Chen (1) intercepts a request at an “intermediate network node” (i.e., routing intermediary 22) between a content server and endpoint node that renders content, and (2) replaces the request with a request for a low-resolution version of the content. Ans. 5, 13. Based on these teachings, the Examiner concludes that it would have been obvious to modify Green’s system to not only send a low-resolution version of a TV based on server load, but also intercept requests via an intermediate network node as claimed to allow efficient load balancing. Ans. 5, 13–14. Appellant argues that the cited prior art does not intercept, at an intermediate network node, a join request sent from a viewer towards a TV server as claimed. App. Br. 11–15; Reply Br. 2–5. Although Appellant acknowledges that Chen’s HTTP request in Figure 2 is sent from a viewer, Appellant emphasizes that this request terminates in the web server and is not received by the routing intermediary that instead receives a query. App. Appeal 2012-005511 Application 11/743,128 4 Br. 12–13; Reply Br. 2–5. Appellant adds that Chen’s node between front- and back-end servers is not an intermediate network node as claimed. App. Br. 15–18; Reply Br. 6–7. According to Appellant, Chen’s back-end servers are not TV servers, but rather (1) are isolated from the network by the front- end servers, and (2) use database protocols. App. Br. 15–18; Reply Br. 6–7. ISSUE Under § 103, has the Examiner erred in rejecting claim 1 by finding that Green and Chen collectively would have taught or suggested intercepting, at an intermediate network node, a join request sent from a viewer towards a TV server, where intermediate network node is between the TV server and an endpoint node that decodes a signal for display to the viewer? ANALYSIS We begin by noting that the Examiner’s findings from Green on pages 4 and 5 of the Answer are undisputed, as is the cited references’ combinability. See App. Br. 11–15; Reply Br. 2–5. Rather, this dispute turns on the Examiner’s reliance on Chen for teaching intercepting the recited join request at an intermediate network node. These undisputed findings from Green are significant, for the Examiner finds that Green—not Chen—sends a join request from a viewer towards a TV server as claimed. See Ans. 4 (citing Green ¶¶ 96–97, 165; Figs. 4, 7). Notably, the Examiner not only omits the recited terms “join” and “TV server” in connection with the intercepted request in Chen, but also the endpoint node’s signal decoding function. See Ans. 5 (“Chen further Appeal 2012-005511 Application 11/743,128 5 discloses intercepting a request at an intermediate network node between a content server and an endpoint node that renders content . . . .”) (emphases added). Turning to claim 1, the claim requires that the join request intercepted at the intermediate network node is the join request sent from a viewer towards a TV server as Appellant indicates. App. Br. 12. But even assuming, without deciding, that the query that the routing intermediary 22 receives from the front-end web server 21 is different than the associated HTTP request as Appellant contends, this received query nonetheless corresponds to the client’s request as the Examiner indicates. Ans. 13. Notably, nothing in the claim requires an unaltered request. The Examiner’s point in this regard is well taken, as is the notion that if the client’s request terminated at the web server as Appellant contends, then no further query for associated content would be necessary. Ans. 13. That Chen routes client requests using client identity, server loading, etc. in paragraph 10 only bolsters the Examiner’s position that queries received and routed by the routing intermediary 22 correspond to client requests. Accord Chen ¶ 59 (“The requests are routed to the appropriate servers to get the proper service. The routing intermediary 22 carries out the routing functionality.”) (emphasis added). Although Chen labels (1) the signal that is input to the web server 21 as a “request,” and (2) signals downstream from that server as “queries” in Figure 2 as Appellant indicates (Reply Br. 4), this distinction is without a meaningful difference here. Not only does Chen use these terms interchangeably in connection with routing as noted above, but these signals also all pertain to client requests. In any event, Chen’s suggestion of Appeal 2012-005511 Application 11/743,128 6 consolidating the web server and routing intermediary as a single computer system would render any such distinction moot as the Examiner indicates, at least with respect to these devices’ received signals. Ans. 13 (citing Chen ¶¶ 134–35). To the extent that Appellant argues that Chen’s database queries are not “join requests” (see Reply Br. 3–5), we find such an argument unavailing. Notably, the Specification’s description of a “join request” is replete with permissive, non-limiting language and, by its very terms, “should be interpreted broadly.” See Spec. 6:10–16. But leaving this breadth aside, and the fact that Chen contemplates join-based queries in connection with the routing intermediary in paragraph 66, Appellant’s argument is nevertheless not germane to the Examiner’s rejection that cites Green—not Chen—for teaching join requests as noted above. Rather, the Examiner relies on Chen for teaching intercepting a content request at an intermediate network node, and applies this teaching to Green’s system that sends a join request from a viewer towards a TV server to conclude that including an intermediate request-interception node in Green would have been obvious. See Ans. 4–5. On this record, we find that the Examiner’s proposed enhancement to Green predictably uses prior art elements according to their established functions—an obvious improvement. See KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 417 (2007). Although Appellant argues Chen’s individual shortcomings in connection with the recited join request interception (see App. Br. 11–18; Reply Br. 2–7), such individual attacks do not show nonobviousness where, as here, the rejection is based on both references’ collective teachings. See In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986). Appeal 2012-005511 Application 11/743,128 7 We also find unavailing Appellant’s contention that Chen’s routing intermediary located between front-end servers 21 and back-end servers 23 and 24 is not an intermediate network node between the TV server and an endpoint node that decodes a signal for display to the viewer as claimed. App. Br. 15–18; Reply Br. 6–7. Appellant reasons that because Chen’s back-end servers 23 and 24 are not TV servers, Chen’s routing intermediary is, therefore, not between a TV server and endpoint node. Id. First, as noted above, the Examiner’s rejection cites Green—not Chen—for teaching the recited TV server. See Ans. 4. Rather, Chen was cited to teach a request-intercepting “intermediate network node between a content server and an endpoint node that renders content . . . .” See Ans. 5 (emphases added). Second, leaving aside Chen’s permissive language in paragraph 33 indicating that back-end servers 23 and 24 may be database servers (thus implying that they may not be database servers), nothing on this record precludes Chen’s back-end content servers 23, 24 for at least suggesting TV servers, for they store and provide content upon request for delivery via a network—content that could reasonably include video or TV-based content. See Chen ¶ 30 (citing non-limiting examples of higher-quality content including higher-resolution images, etc.). Appellant’s contention that Chen’s back-end servers are not TV servers because they communicate via database protocols and are not connected directly to the internet (App. Br. 15–18; Reply Br. 6–7) is unavailing and not commensurate with the scope of the claim. In short, Appellant’s contentions in this regard are conclusory and unsupported by persuasive evidence on this record, and thus entitled to little probative value. See In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. Appeal 2012-005511 Application 11/743,128 8 1997). Moreover, not only does Appellant not define the term “TV server” in the Specification to so limit its interpretation, the identification of such a server as a video headend 101 in Appellant’s Abstract and Figure 1 is merely exemplary—a fact that Appellant acknowledges. See App. Br. 16; Reply Br. 7. Even assuming, without deciding, that Chen’s back-end servers are limited to communicating via database protocols as Appellant contends, they are not only content servers as the Examiner indicates, but they are also connected indirectly to the internet via the routing intermediary and front- end servers. See Chen, Fig. 2. As such, we see no error in the Examiner’s applying Chen’s teachings to Green to teach intercepting the recited join request at an intermediate network node, where the intermediate network node is between a TV server and the recited endpoint node. The signal decoding functionality of the latter node is at least suggested by these references’ collective teachings, for skilled artisans would understand that such a node would decode TV-based signals delivered via the network for viewer display. See, e.g., Green, Fig. 6 (step 624). Lastly, even assuming, without deciding, that Chen’s back-end servers and routing intermediary are in a different network than Chen’s decoding endpoint node due to their different communication protocols as Appellant contends (App. Br. 18), nothing in the claim precludes this arrangement, for the back-end servers are connected indirectly to the network containing the endpoint node. See Chen, Fig. 2. As such, Chen’s routing intermediary that is situated between the back-end servers and the endpoint node reasonably Appeal 2012-005511 Application 11/743,128 9 constitutes an “intermediate network node” given the scope and breadth of the term.2 Therefore, we are not persuaded that the Examiner erred in rejecting representative claim 1, and claims 3, 5, and 7–16 not argued separately with particularity. THE REJECTION OVER GREEN, CHEN, AND RICHARDSON We also sustain the Examiner’s rejection of claim 18 reciting that the intermediate network node is at least one of a residential gateway and an access multiplexer. We see no error in the Examiner’s reliance on Richardson’s Digital Subscriber Line Access Multiplexer (DSLAM) 9 in this regard, for it routes customer’s video requests to video server 22 via ATM switch 10 as the Examiner indicates. Ans. 12, 14–15 (citing Richardson ¶ 31). Appellant’s argument that Richardson’s DSLAM routes requests past users—not from users (App. Br. 19–20; Reply Br. 7–8)—is undercut by the Examiner’s relied-upon passage in Richardson’s paragraph 31 that at least suggests that the DSLAM also routes those requests. To the extent that Appellant contends that Richardson’s ATM switch—not the DSLAM— performs such routing (see App. Br. 19–20; Reply Br. 7–8), we agree with the Examiner that Richardson at least suggests that the DLSAM routes user 2 Although Appellant and the Examiner discuss an ancillary prior art reference (LaJoie) in connection with their respective positions (see App. Br. 17–18; Ans. 14), we need not discuss that reference here. Not only was this reference not cited in the rejection, we find no error in the Examiner’s rejection based solely on the teachings of Green and Chen for the reasons noted in the opinion. Appeal 2012-005511 Application 11/743,128 10 requests. Accordingly, the weight of the evidence on this record favors the Examiner’s position. Therefore, we are not persuaded that the Examiner erred in rejecting representative claim 18, and claims 19 and 20 not argued separately with particularity. CONCLUSION The Examiner did not err in rejecting claims 1, 3, 5, 7–16, and 18–20 under § 103. DECISION The Examiner’s decision rejecting claims 1, 3, 5, 7–16, and 18–20 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 tj