13944670 - (D) (P.T.A.B. Nov. 22, 2019)

Gary B. Jabara et al.

Patent Trials and Appeals BoardNov 22, 2019

13944670 - (D) (P.T.A.B. Nov. 22, 2019)

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. 13/944,670 07/17/2013 Gary B. Jabara 0102802-010US2 6431 22504 7590 11/22/2019 DAVIS WRIGHT TREMAINE, LLP/SEATTLE IP DOCKETING DEPT. DAVIS WRIGHT TREMAINE LLP 920 FIFTH AVE., SUITE 3300 SEATTLE, WA 98104-1610 EXAMINER SHEPARD, JUSTIN E ART UNIT PAPER NUMBER 2424 NOTIFICATION DATE DELIVERY MODE 11/22/2019 ELECTRONIC 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. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): patentdocket@dwt.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte GARY B. JABARA, LLOYD FREDERICK LINDER, and DAVID BRETT SIMON ____________ Appeal 2018-009104 Application 13/944,670 Technology Center 2400 ____________ Before JENNIFER L. MCKEOWN, JAMES W. DEJMEK, and STEPHEN E. BELISLE, Administrative Patent Judges. BELISLE, Administrative Patent Judge. DECISION ON APPEAL Appellant1 appeals under 35 U.S.C. § 134(a) from a Final Rejection of claims 1–24. App. Br. 3. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM IN PART. 1 Throughout this Decision, we use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42 (2017). Appellant identifies the real party in interest as Mobilitie, LLC. App. Br. 3. Appeal 2018-009104 Application 13/944,670 2 STATEMENT OF THE CASE The Claimed Invention Appellant’s invention generally relates to “a system and method of video streaming of multiple video channels using wireless communication devices.” Spec. 1:21–23. Claim 1, reproduced below, is exemplary of the subject matter on appeal: 1. A system for the broadcast of a plurality of video streams to a plurality of mobile communication devices, comprising: a moving vehicle; a wireless unicast data protocol receiver aboard the vehicle for receiving a plurality of video data streams and providing a plurality of received video data streams as an output in an unmultiplexed form; a local video processor aboard the vehicle, coupled to the receiver and configured to receive the plurality of unmultiplexed video data streams and to combine the plurality of unmultiplexed video data streams into a single stream of user datagram protocol (UDP) data packets for transmission, the video processor being further configured to assign a port number to each of the UDP data packets with each of the UDP data packets for respective ones of the video streams having a port number corresponding to the respective video stream to thereby provide the port number as the sole indication of the origin of the data packet for use by the plurality of mobile communication devices; and at least one wireless access point (AP) aboard the vehicle communicatively coupled to the video processor to receive the stream of UDP data packets therefrom, the AP being configured to transmit the stream of UDP data packets. App. Br. 21 (Claims Appendix). Appeal 2018-009104 Application 13/944,670 3 The Applied References The Examiner relies on the following references as evidence of unpatentability of the claims on appeal: LaBrie US 2002/0047861 A1 Apr. 25, 2002 Hoskins US 2003/0106067 A1 June 5, 2003 Falvo US 2003/0159153 A1 Aug. 21, 2003 Fedorkow US 7,230,917 B1 June 12, 2007 Galipeau US 2008/0104642 A1 May 1, 2008 Alrabady US 2009/0077267 A1 Mar. 19, 2009 White US 2009/0282438 A1 Nov. 12, 2009 Barnes US 2010/0077436 A1 Mar. 25, 2010 Vimpari US 2010/0242075 A1 Sept. 23, 2010 Mraz US 8,139,581 B1 Mar. 20, 2012 Weeks US 8,752,092 B2 June 10, 2014 The Examiner’s Rejections The Examiner made the following rejections of the claims on appeal: Claim 1 stands rejected under 35 U.S.C. § 112 as failing to comply with the written description requirement. Final Act. 4. Claims 1, 14, and 19 stand rejected under 35 U.S.C. § 112 for failing to comply with the written description requirement. Final Act. 4–5. However, the Examiner subsequently withdrew this § 112 rejection in the Answer. Ans. 15. Claims 1, 11, 12, 14, 18, 19, and 24 stand rejected under 35 U.S.C. § 103 as being unpatentable over Mraz, Galipeau, Falvo, and Fedorkow. Final Act. 5–9. Claims 2, 4, 16, and 21 stand rejected under 35 U.S.C. § 103 as being unpatentable over Mraz, Galipeau, Falvo, Fedorkow, and Alrabady. Final Act. 9–10. Appeal 2018-009104 Application 13/944,670 4 Claims 3, 15, and 20 stand rejected under 35 U.S.C. § 103 as being unpatentable over Mraz, Galipeau, Falvo, Fedorkow, and Barnes. Final Act. 11. Claims 5, 17, and 22 stand rejected under 35 U.S.C. § 103 as being unpatentable over Mraz, Galipeau, Falvo, Fedorkow, and Vimpari. Final Act. 11–12. Claims 6 and 7 stand rejected under 35 U.S.C. § 103 as being unpatentable over Mraz, Galipeau, Falvo, Fedorkow, Vimpari, and White. Final Act. 12–13. Claims 8–10 stand rejected under 35 U.S.C. § 103 as being unpatentable over Mraz, Galipeau, Falvo, Fedorkow, Vimpari, and Weeks. Final Act. 13–15. Claim 13 stands rejected under 35 U.S.C. § 103 as being unpatentable over Mraz, Galipeau, Falvo, Fedorkow, and LaBrie. Final Act. 15–16. Claim 23 stands rejected under 35 U.S.C. § 103 as being unpatentable over Mraz, Galipeau, Falvo, Fedorkow, and Hoskins. Final Act. 16. ANALYSIS2 Section 112 Rejection Appellant disputes the Examiner’s finding that the Specification does not provide written description support for the term “unmultiplexed” as recited in independent claim 1. App. Br. 16–18; Final Act. 4. Appellant 2 Throughout this Decision, we have considered Appellant’s Corrected Appeal Brief filed February 8, 2018 (“App. Br.”); Appellant’s Reply Brief filed September 25, 2018 (“Reply Br.”); the Examiner’s Answer mailed July 27, 2018 (“Ans.”); the Final Office Action mailed May 8, 2017 (“Final Act.”); and Appellant’s Specification filed July 17, 2013 (“Spec.”). Appeal 2018-009104 Application 13/944,670 5 admittedly “introduced the term ‘unmultiplexed’ to help distinguish over one of the four references cited in combination by the Examiner in the rejection of claim 1,” namely Mraz. App. Br. 17. According to Appellant, “[s]ince the output of the multiplexer in Mraz is a multiplexed signal, Appellant amended claim 1 to clarify that the output of the wireless unicast protocol receiver is ‘in an unmultiplexed form.’” App. Br. 17. Appellant argues that the Specification provides support for “unmultiplexed,” because it discloses a receiver aboard a vehicle that “receives multiple data streams via a unicast connection and delivers the multiple (i.e., unmultiplexed) data streams to the video processor 140 onboard the vehicle.” App. Br. 17–18 (citing Spec., Figs. 17, 19, pp. 14:23–24, 15:5–15). In other words, Appellant argues that by disclosing an output of multiple data streams, the Specification reasonably conveys to the skilled artisan that the outputted data streams are not multiplexed together and that each of the multiple data streams itself is unmultiplexed. We find Appellant’s argument unpersuasive. To satisfy the written description requirement, the disclosure must reasonably convey to skilled artisans that Appellant possessed the claimed invention as of the filing date. See Ariad Pharms., Inc. v. Eli Lilly & Co., 598 F.3d 1336, 1351 (Fed. Cir. 2010) (en banc). Specifically, the description must “clearly allow persons of ordinary skill in the art to recognize that [the inventor] invented what is claimed” and the test requires an objective inquiry into the four corners of the specification from the perspective of a person of ordinary skill in the art. Based on that inquiry, the specification must describe an invention understandable to that skilled artisan and show that the inventor actually invented the invention claimed. Ariad Pharms., Inc., 598 F.3d at 1351 (internal quotations and citations omitted). Additionally, the Examiner has the initial burden of presenting Appeal 2018-009104 Application 13/944,670 6 evidence or reasons why persons skilled in the art would not recognize in an applicant’s disclosure a description of the invention defined by the claims. In re Wertheim, 541 F.2d 257, 265 (CCPA 1976). Here, the Examiner finds that the term “unmultiplexed” appears nowhere in the Specification (Final Act. 4), and that the portions of the Specification relied upon for support by Appellant (identified above) “only disclose unicasting a number of UDP video packets and make[] no mention of multiplexing or unmultiplexed video” (Ans. 19). We agree. We also find that the limitations of claim 1 as presently drafted support the Examiner’s finding. Claim 1 recites, in relevant part, “providing a plurality of received video data streams as an output in an unmultiplexed form [and] . . . combin[ing] the plurality of unmultiplexed video data streams into a single stream of user datagram protocol (UDP) data packets for transmission” (emphasis added). Because claim 1 recites providing a plurality of received video data streams as an output and combining those streams into a single stream, it would be superfluous to characterize the outputted plurality of video data streams as “unmultiplexed,” unless “in an unmultiplexed form” applies to each of the multiple data streams itself, for which we find no support in the Specification. See Merck & Co. v. Teva Pharm. USA, Inc., 395 F.3d 1364, 1372 (Fed. Cir. 2005) (“A claim construction that gives meaning to all the terms of the claim is preferred over one that does not do so.”); Power Mosfet Techs., L.L.C. v. Siemens AG, 378 F.3d 1396, 1410 (Fed. Cir. 2004) (“[I]nterpretations that render some portion of the claim language superfluous are disfavored.”). Based on the foregoing and our review of the Specification and Briefs, we find Appellant does not Appeal 2018-009104 Application 13/944,670 7 show persuasively that the Examiner erred in finding “unmultiplexed” as recited in claim 1 to lack written description support in the Specification. Accordingly, we sustain the Examiner’s rejection under 35 U.S.C. § 112 of independent claim 1. Although not rejected by the Examiner in the Final Action, we note that each of claims 2–13 depend directly or indirectly from independent claim 1 and suffer from the same § 112 deficiency. As such, in the event of further prosecution, the Examiner should consider whether claims 2–13 should also be rejected under 35 U.S.C. § 112. Although the Board is authorized to reject claims under 37 C.F.R. § 41.50(b), no inference should be drawn when the Board elects not to do so. See MPEP § 1213.02. Section 103 Rejection Appellant disputes the Examiner’s findings that the various combinations of cited art render obvious claims 1–24. See App. Br. 7–16; Reply Br. 2–4. In particular, Appellant disputes the Examiner’s finding that the combination of Mraz, Galipeau, Falvo, and Fedorkow renders obvious independent claims 1, 14, and 19. See App. Br. 7–15; Reply Br. 2–4. Appellant argues the appealed claims as a group. See App. Br. 15. Thus, for purposes of our analysis, we select independent claim 1 as the representative claims, and any claim not argued separately will stand or fall with our analysis of the rejection of claim 1. See 37 C.F.R. § 41.37(c)(1)(iv). Appellant argues, inter alia, that the Examiner has not shown by a preponderance of the evidence that Mraz, alone or in combination with other cited art, teaches a receiver providing a plurality of received video streams as an output that are combined into a single stream by a local video processor, as recited in claim 1. See App. Br. 11–12 (“Mraz fails to disclose Appeal 2018-009104 Application 13/944,670 8 a receiver that provides a plurality of received video streams as an output . . . as alleged by the Examiner.”). We find Appellant’s argument persuasive. The Examiner finds “Mraz discloses a system for multiplexing a number of video UDP packets onto a single network connection where the packets are assigned a channel number for sorting the packets at the receiving end.” Ans. 17; see Ans. 15 (“Mraz is used for putting multiple UDP video streams onto a single link in a network.”). But the Examiner does not sufficiently show how this disclosure teaches a receiver providing a plurality of received video streams as an output that are combined into a single stream by a local video processor, as recited in claim 1. See Final Act. 5–6. In particular, the Examiner does not identify which specific feature of Mraz’s “system” teaches the claimed receiver providing a plurality of received video streams as an output, although Appellant assumes that the Examiner relies on Mraz’s multiplexer 508 for this. See App. Br. 17 (“Appellant has . . . repeatedly requested that the Examiner identify the component the Examiner considered to be a ‘receiver.’ The Examiner has repeatedly ignored the request for clarification. However, the only component in Mraz that receives multiple data streams is a multiplexer 508.”). Further, because claim 1 recites providing a plurality of received video data streams as an output of the receiver and a local video processor combining those streams into a single stream, we find the output of the claimed receiver is not a combined single stream. As such, we find the Examiner has not persuasively shown how Mraz’s multiplexer, which outputs a single multiplexed stream, teaches the claimed receiver, which does not output a single multiplexed stream. The Examiner also has not persuasively shown how the other cited art remedies this deficiency. Appeal 2018-009104 Application 13/944,670 9 Because we find this issue dispositive here, we do not address Appellant’s other arguments. Accordingly, constrained by the present record, we do not sustain the Examiner’s rejection under 35 U.S.C. § 103 of independent claim 1. For similar reasons, we do not sustain the Examiner’s rejection under 35 U.S.C. § 103 of independent claims 14 and 19, which recite commensurate limitations. Additionally, we do not sustain the Examiner’s rejection under 35 U.S.C. § 103 of claims 2–13, 15–18, and 20–24, which depend therefrom. DECISION SUMMARY Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1 112 Written Description 1 1, 11, 12, 14, 18, 19, 24 103 Mraz, Galipeau, Falvo, Fedorkow 1, 11, 12, 14, 18, 19, 24 2, 4, 16, 21 103 Mraz, Galipeau, Falvo, Fedorkow, Alrabady 2, 4, 16, 21 3, 15, 20 103 Mraz, Galipeau, Falvo, Fedorkow, Barnes 3, 15, 20 5, 17, 22 103 Mraz, Galipeau, Falvo, Fedorkow, Vimpari 5, 17, 22 6, 7 103 Mraz, Galipeau, Falvo, Fedorkow, Vimpari, White 6, 7 8–10 103 Mraz, Galipeau, Falvo, Fedorkow, Vimpari, Weeks 8–10 Appeal 2018-009104 Application 13/944,670 10 Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 13 103 Mraz, Galipeau, Falvo, Fedorkow, LaBrie 13 23 103 Mraz, Galipeau, Falvo, Fedorkow, Hoskins 23 Overall Outcome 1 2–243 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). See 37 C.F.R. § 41.50(f). AFFIRMED IN PART 3 As noted above, although not rejected by the Examiner in the Final Action, we note that each of claims 2–13 depend directly or indirectly from independent claim 1 and suffer from the same § 112 deficiency.