Lenovo (Singapore) Pte. Ltd.

Patent Trials and Appeals Board

Mar 15, 2022

2021000138 (P.T.A.B. Mar. 15, 2022)

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. 14/964,181 12/09/2015 Russell Speight VanBlon RPS920150039USNP(710.465) 4073 58127 7590 03/15/2022 FERENCE & ASSOCIATES LLC 409 BROAD STREET PITTSBURGH, PA 15143 EXAMINER KHANAL, SANDARVA ART UNIT PAPER NUMBER 2453 MAIL DATE DELIVERY MODE 03/15/2022 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 RUSSELL SPEIGHT VANBLON, NATHAN J. PETERSON, ROD D. WALTERMANN, JOHN CARL MESE, and ARNOLD S. WEKSLER Appeal 2021-000138 Application 14/964,181 Technology Center 2400 Before ERIC B. CHEN, MICHAEL J. STRAUSS, and MICHAEL J. ENGLE, Administrative Patent Judges. STRAUSS, Administrative Patent Judge. DECISION ON APPEAL1 1 We refer to the Specification, filed December 9, 2015 as amended January 4, 2018 (“Spec.”); Final Office Action, mailed February 10, 2020 (“Final Act.”); Appeal Brief, filed June 29, 2020 (“Appeal Br.”); Examiner’s Answer, mailed August 5, 2020 (“Ans.”); and Reply Brief, filed October 5, 2020 (“Reply Br.”). Appeal 2021-000138 Application 14/964,181 2 STATEMENT OF THE CASE Appellant2 appeals under 35 U.S.C. § 134(a) from the Examiner’s rejection of claims 1-3, 5-13, and 15-20. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. TECHNOLOGY The application relates to “reducing streaming content interruptions on an electronic device (e.g., laptops, smart phones, tablets, etc.) while [a user is] moving” by “pre-cach[ing] enough data to last the user during the dead zone between coverage areas when a user is about to switch towers or encounter a coverage gap.” Spec. ¶ 19. ILLUSTRATIVE CLAIM Claim 1 is illustrative and reproduced below: 1. A method, comprising: streaming, at a data transfer rate, a wireless content stream utilizing a cache of a first cache size; identifying, using a processor, an impending data availability context associated with an interruption in the wireless content stream and an amount of bandwidth accessible by a system prior to reaching the interruption; determining, using a processor, a projected time duration of the impending data availability context, wherein the determining comprises predicting, based upon routing factors, a length of the interruption; and adjusting, from a predetermined distance from the impending data availability context, the cache of the wireless content stream to a second cache size, wherein the second cache size comprises a data size sufficient to prevent the interruption in 2 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies Lenovo (Singapore) PTE. LTD as the real party in interest. Appeal Br. 3. Appeal 2021-000138 Application 14/964,181 3 the wireless content stream, wherein identifying the data size sufficient to prevent interruption comprises utilizing a caching algorithm to identify an amount of pre-cached data to last a user during the length of the interruption based upon a rate of media consumption by the user, wherein the caching algorithm utilizes the amount of bandwidth accessible by a system prior to reaching the interruption to adjust the buffer size based upon the amount of bandwidth and a distance of a user to a data availability edge. REFERENCES The Examiner relies on the following references as prior art: Name Number Date Begen US 2011/0217025 Al Sept. 8, 2011 Cumming US 2011/0288936 Al Nov. 24, 2011 Gavita US 2015/0049602 Al Feb. 19, 2015 REJECTIONS Claims 1-3, 5-10, 12, 13, and 15-20 stand rejected under 35 U.S.C. § 103 as obvious over the combined teachings of Gavita and Cumming. Final Act. 10-19. Claim 11 stands rejected under 35 U.S.C. § 103 as obvious over the combined teachings of Gavita, Cumming, and Begen. Final Act. 19. ISSUES Did the Examiner err in: 1. Failing to provide an articulated reason for combining the teachings of Gavita and Cumming in rejecting the claims (Appeal Br. 22-23); 2. Finding Gavita teaches “determining or estimating how long the interruption will last, and, thereafter, buffering a corresponding amount, as per the claimed limitations” (id. at 23-24); and Appeal 2021-000138 Application 14/964,181 4 3. Finding Cumming teaches “adjusting, from a predetermined distance from the impending data availability context, the cache of the wireless content stream to a second cache size, wherein the second cache size comprises a data size sufficient to prevent the interruption in the wireless content stream” as recited by claim 1 (id. at 25). ANALYSIS The Examiner finds Gavita’s disclosure of “controlling the transmission of streaming content from a wireless communication network to a wireless device, including temporarily increasing the size of a buffer used at the device” (Gavita, Abstract) teaches or suggests the majority of limitations of claim 1. Final Act. 10-13. However, the Examiner finds Gavita does not explicitly teach adjusting the buffer size based upon a distance of a user to a data availability edge. Gavita also does not explicitly teach that the adjustment of the cache of the wireless content stream to a second cache size happens from a predetermined distance from the impending data availability context. Id. at 14. To remedy the noted deficiency of Gavita, the Examiner finds Cumming’s disclosure of pre-caching location-based advertising (LBA) to a mobile device, wherein pre-caching is responsive to a user traveling on a predicted out-of-coverage path portion, teaches or suggests, inter alia, (i) adjusting cache size a predetermined distance from an impending data availability context (e.g., coverage gap (see Claim 2)) and (ii) adjusting a buffer size based on a distance of a user to a data availability edge in addition to based on an amount of accessible bandwidth. Id. According to the Examiner, “[o]ne of ordinary skill in the art would have been motivated Appeal 2021-000138 Application 14/964,181 5 [to incorporate the teachings of Cumming with Gavita] so that the user may receive timely location-based advertising (LBA) even though his or her mobile device is out of wireless coverage.” Id. at 15 (citing Cumming ¶ 25, ll. 23-24). Rationale for Combing the Teachings of Gavita and Cumming Appellant argues that, rather than providing an articulated reason for combining the teachings of Gavita and Cumming, the Examiner “has merely supplied a conclusory statement claiming that the combination of references would be obvious to one of ordinary skill in the art.” Appeal Br. 22. We are not persuaded that the Examiner errs. As discussed above, the Examiner has set forth articulated reasoning with rational underpinnings for the combination. Final Act. 14-15. Appellant has not identified any knowledge relied upon by the Examiner that was gleaned only from Appellant’s disclosure and that was not otherwise within the level of ordinary skill in the art at the time of invention. See In re McLaughlin, 443 F.2d 1392, 1395 (CCPA 1971). Nor has Appellant provided objective evidence of secondary considerations, which “operates as a beneficial check on hindsight.” Cheese Sys., Inc. v. Tetra Pak Cheese & Powder Sys., Inc., 725 F.3d 1341, 1352 (Fed. Cir. 2013). Thus, Appellant’s arguments are conclusory, and do not persuasively explain why the Examiner’s rationale for combining the teachings of Gavita and Cumming is erroneous or insufficient. It is well settled that mere attorney 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); see also In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974) (attorney argument is not evidence). Appeal 2021-000138 Application 14/964,181 6 Buffering Based on Determined/Estimated Interruption Duration The Examiner finds Gavita’s disclosure of “add[ing] one or two seconds of streaming-content playback at [a receiving wireless] device (added seconds of playback buffer depth) to prevent streaming service disruption implies determining that the service disruption will last for the one or two second[s].” Final Act. 11. The Examiner further finds Gavita’s disclosure of scenarios entailing extended outages including a subscriber traveling by train through a tunnel or narrow passage, given that “the length/distance of the interruption is known, and the rate/direction of travel is also known from the mobility information, [such that] it would be obvious to one of ordinary skill in the art to use these information to determine a projected time duration of the interruption or coverage gap.” Id. at 12 (citing Gavita ¶¶ 30, 37-38, 40-42). Appellant argues Gavita discloses interruptions due to QoS violations that are accommodated by buffering durations of one or two seconds, but does not “mention . . . determining or estimating how long the interruption will last, and, thereafter, buffering a corresponding amount, as per the claimed limitations.” Appeal Br. 23. Appellant further argues [Gavita] discusses that the bandwidth before and after a potential handover (interruption in our case) may be obtained in determining the buffer size; however, in determining if a buffer increase is necessary, [Gavita] only takes into account the size of the potential interruption, using the bandwidth recognition as starting and end-points for the potential interruption. This lack of use of bandwidth to assist in determining the time needed for the buffer to reach full capacity is clearly distinguishable from the claimed limitations. Appeal 2021-000138 Application 14/964,181 7 Id. at 23-24. According to Appellant, the Examiner errs in finding Gavita’s disclosure of adding one or two seconds of buffering to accommodate a handover-related disruption because “[r]ecognition of a handover between service areas is clearly distinguishable from [the determining and adjusting steps of claim 1].” Id. at 24. The Examiner responds, directing attention to paragraph 35 of Appellant’s Specification in interpreting the meaning of the disputed determining step. Ans. 15. In particular, the Examiner finds the Specification discloses one method of predicting an interruption duration is by basing a prediction on historical data such as a user traversing a known route. Id. (citing Spec. ¶ 35). The Examiner concludes “[t]herefore, based on broadest reasonable interpretation of the claimed limitation consistent with the [S]pecification, route traversal information of a frequently traversed route (historical travel data) is used in the current invention to predict a length of the interruption in the wireless content stream.” Id. The Examiner finds Gavita discloses just such a technique: Similar to the concept of Appellant’s paragraph [0035] . . . , Gavita uses historic records and mobility information to predict expected position of the device where it is known to be problematic service area. More specifically, [0037]-[0038] of Gavita discloses detecting from the mobility information that a subscriber is traveling by train towards the problematic service area. Gavita explicitly discloses that one or more service areas of the network where it is known that a gap or impairment in network service exists corresponds to a particular section of track--e.g., a tunnel or narrow passage (see [0038]). Examiner articulates that the particular section of track--e.g., a tunnel or narrow passage indicate length/distance of the interruption. Appeal 2021-000138 Application 14/964,181 8 Id. at 16. The Examiner further finds Gavita’s description of a one or two second interruption is a non-limiting example of one type of expected violation. Id. However, the Examiner finds Gavita’s further description of basing transmission bursts on a known or expected duration of an expected violation and tailoring buffer size and transmission burst parameters in terms of added seconds of playback buffer depth “teach determining or estimating how long the interruption will last, and, thereafter, buffering a corresponding amount, as per the claimed limitations.” Id. (citing Gavita ¶¶ 40-42). Appellant’s arguments are unpersuasive of reversible Examiner error. Initially, Appellant fails to explain why the Examiner errs in interpreting the disputed determining step as including using historical data to predict an upcoming service interruption and identify how long a device will be within a coverage gap. Furthermore, Appellant’s conclusory statement that recognition of a handover between service areas is clearly distinguishable from the determining and adjusting steps of claim 1 (Appeal Br. 26) fails to address the Examiner’s findings and explain why those findings are erroneous. Instead, we agree with the Examiner in finding Gavita’s disclosure of using device trajectory information to determine there will be a QoS violation or an imminent handover and Gavita’s description of monitoring a device location with respect to known “handover and/or reception areas where temporary service impairments or even service interruptions are ‘expected,’ e.g., from historic records” (Gavita ¶ 37) teaches or suggests the disputed limitation of determining, using a processor, a projected time duration of the impending data availability context, wherein the determining comprises predicting, based upon routing factors, a length of the interruption. Appeal 2021-000138 Application 14/964,181 9 Adjusting Cache Size a Predetermined Distance from an Impending Data Availability Context The Examiner finds Cumming’s disclosure of triggering a download request as a user travels down a first leg of a frequent path teaches or suggests adjusting, from a predetermined distance from the impending data availability context, the cache of the wireless content stream to a second cache size as recited by claim 1. Final Act. 14 (citing Cumming ¶ 35). The Examiner explains Cumming’s “subway stations 605 and/or 620 correspond to a data availability edge; the first leg of the frequent path 600 at which the device triggers a request to download and pre-cache LBA indicate a distance of a user to a data availability edge.” Id. (citing Cumming ¶¶ 33-35). Appellant argues as follows: [I]n determining Cumming’s version of ‘the impending data availability context,’ as disclosed in Cumming, a system, “entails identifying a frequent path over which the device has repeatedly traveled, identifying an out-of-coverage portion of the frequent path, determining LBA for the out-of-coverage portion of the frequent path, and pre-caching on the mobile device the LBA for the out-of-coverage portion of the frequent path.” Cumming at [0016]. Applicant respectfully submits that the need to travel over a path with a level of frequency to determine the ‘out-of- coverage portion,’ is readily distinguishable from the claimed limitations present in our present application. Appeal Br. 25-26. The Examiner responds, finding Appellant’s Specification describes that an impending data availability contexts may include coverage gaps between towers, physical obstacles including tunnels, and historical travel data or areas of high network congestion. Ans. 22 (citing Spec. ¶¶ 33-35). Addressing Appellant’s argument, the Examiner explains as follows. Appeal 2021-000138 Application 14/964,181 10 [A] broadest reasonable interpretation of the term “data availability context” [in view of the cited portion of the Specification] may include “historical travel data”, which implies “traveling over a path with some level of frequency” or “a path over which the device has repeatedly traveled”. Thus, the Examiner does not find how the need to travel over a path with a level of frequency to determine the out-of-coverage portion in Cumming distinguishes from the claimed limitations of the present application. Ans. 23. Appellant’s contention is unpersuasive of reversible Examiner error because it is a general denial asserting that the corresponding elements were not found in the prior art but otherwise fails to address the Examiner’s findings. Other than allege “the need to travel over a path with a level of frequency to determine the ‘out-of-coverage portion,’ is readily distinguishable from the claimed limitations present in our present application” (Appeal Br. 25-26), Appellant fails to provide sufficient evidence or reasoned explanation in support of the alleged distinction. Such naked assertions are facially insufficient. See 37 C.F.R. § 41.37(c)(1)(iv) (“A statement [that] merely points out what a claim recites will not be considered an argument for separate patentability of the claim.”); In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (“[W]e hold that the Board reasonably interpreted Rule 41.37 to require more substantive arguments in an appeal brief than a mere recitation of the claim elements and a naked assertion that the corresponding elements were not found in the prior art.”). Accordingly, we sustain the Examiner’s rejection of independent claim 1. We further sustain the Examiner’s rejection of independent claims 12 and 20 which are argued together with claim 1. Appeal. Br. 21. We also Appeal 2021-000138 Application 14/964,181 11 sustain the Examiner’s rejections of dependent claims 2, 3, 5-11, 13, and 15-19 which are not argued separately with particularity. DECISION SUMMARY In summary: The following table summarizes the outcome of each rejection: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1-3, 5-10, 12, 13, 15- 20 103 Gavita, Cumming 1-3, 5- 10, 12, 13, 15-20 11 103 Gavita, Cumming, Begen 11 Overall Outcome 1-3, 5- 13, 15-20 TIME TO RESPOND No time for taking subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.36(a)(1)(iv). AFFIRMED