Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-2, 5-10, 14-18 and 20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 12,028,244 in view of Ouedraogo et al. (US 2017/0126527), Purkayastha et al. (US 2013/0067056), Bellur et al. (US 2007/0211636) and Takamura et al. (US 10,154,522). Although the claims at issue are not identical, they are not patentably distinct from each other.
Regarding claims 1-2, 5-10, 14-18 and 20, the parent patent recites features such as receiving a request and selecting a path based on expected transmission qualities for transmitting the content item via transmission paths, and causing transmission of the content item via path. However, the claims additionally recite application requirements based on an application type of the content item. In removing the additional features, the scope of the claims is merely broadened by eliminating elements and their functions. It has been held that omission of an element and its function is an obvious expedient if the remaining elements perform the same function as before. In re Karlson, 136 USPQ 184 (1963); In re Nelson, 95 USPQ 82 (CCPA 1952); and In re Eliot, 25 USPQ 111 (CCPA 1935). Also note Ex parte Rainu, 168 USPQ 365 (Bd. App. 1969) (omission of a reference element whose function is not needed would be obvious to one skilled in the art). Therefore, it would have been obvious to one skilled in the art before the effective filing date of the claimed invention (or at the time the invention was made, pre-AIA ) to not recite the additional features.
The parent patent fails to recite selecting, from a plurality of different transmission medium types and based on predicted transmission qualities for transmitting the content item via the plurality of different transmission medium types, a transmission medium type for transmitting the content item; and causing transmission of the content item via a transmission path of the selected transmission medium type, and other limitations. However, Ouedraogo, Purkayastha, Bellur and Takamura disclose these features and provide motivation to recite these features in the parent patent for the same motivation as described in the rejections under 35 U.S.C. 103 below.
Claims 3-4 and 11-12 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 12,028,244 in view Ouedraogo, Purkayastha, Bellur and Takamura, as applied to claim 1 or 9 above, and in further view of Sen et al. (US 6,765,909) and Segel (US 2007/0133419).
Regarding claims 3-4 and 11-12, the parent patent fails to recite these limitations. However, Sen and Segel disclose these features and provide motivation to recite these features in the parent patent for the same motivation as described in the rejections under 35 U.S.C. 103 below.
Claims 13 and 19 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 12,028,244 in view Ouedraogo, Purkayastha, Bellur and Takamura, as applied to claim 9 or 17 above, and in further view of Lee et al. (US 11,407,147).
Regarding claims 13 and 19, the parent patent fails to recite these limitations. However, Lee discloses these features and provides motivation to recite these features in the parent patent for the same motivation as described in the rejections under 35 U.S.C. 103 below.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1-20 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Regarding claim 1-16, the specification fails to describe selecting, from a plurality of different transmission medium types and based on predicted transmission qualities for transmitting the content item via the plurality of different transmission medium types, a transmission medium type for transmitting the content item as claimed. At most the specification describes selecting a transmission medium type based on the capability and/or or current state of the medium type (fig. 5, step 535 and fig. 6, step 615; paras. 45 and 57-58) or a predicted (expected) transmission quality based on a protocol or a data rate regardless of transmission medium type (fig. 7, steps 715 and 725, and paras. 67 and 69).
Regarding claims 1-20, the specification fails to describe “predicting” transmission qualities and only describes “expected” transmission qualities. In para. 69 of the specification, an expected quality is based on historical data. However, the terms “predicted” and “expected” have different definitions, in that a prediction can have a low certainty or reliability and not be expected to happen. Examiner suggests reciting “expected” in place of “predicted” because a definition of predicted is not found in the specification.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-2, 5-10, 14-18 and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Colby et al. (US 6,006,264) in view of Ouedraogo et al. (US 2017/0126527), Purkayastha et al. (US 2013/0067056), Bellur et al. (US 2007/0211636) and Takamura et al. (US 10,154,522). For dependent claims herein, the motivation to combine is the same as the parent claim unless otherwise noted.
Regarding claim 1, Colby discloses a method comprising: receiving, by a computing device, a request for a content item (col. 7, lines 20-29; col. 1, lines 59-65; col. 2, lines 2-6; note: request for content flow; col. 10, lines 33-39); transmission path (figs. 6 and 18-21b; col. 12, lines 14-54; col. 14, lines 53-65)
However, Colby fails to disclose selecting, from a plurality of different transmission medium types and based on predicted transmission qualities for transmitting the content item via the plurality of different transmission medium types, a transmission medium type for transmitting the content item; and causing transmission of the content item via a transmission path of the selected transmission medium type. Ouedraogo discloses selecting a best path between a client and a server (fig. 4; paras. 140 and 142). Purkayastha discloses different medium types as connections between nodes (fig. 2; paras. 37 and 41-42; note: the broadest reasonable interpretation of medium type is a protocol as noted in the specification of the instant application, para. 33, “Different connection types (e.g. “media”)”). Bellur discloses determining the quality of different paths of different media types (figs. 1 and 4B-4C; para. 18; note: wireless and wired paths). Takamura discloses determining a media type based on priority, and selecting a media type and a path based on predicted transmission qualities for transmitting data via plurality of different transmission medium types (figs. 6 and 15; col. 11, lines 22-35 and 49-67; col. 12, lines 4-19; note: the broadest reasonable interpretation of medium types are wireless protocols - col. 11, lines 61-67 and col. 14, lines 37-44; note: selecting a path to satisfy a minimum request).
Therefore, it would have been obvious to one skilled in the art before the effective filing date of the claimed invention to have selecting, from a plurality of different transmission medium types and based on predicted transmission qualities for transmitting the content item via the plurality of different transmission medium types, a transmission medium type for transmitting the content item; and causing transmission of the content item via a transmission path of the selected transmission medium type in the invention of Colby. The motivation to have the modification and/or well-known benefits of the modification include, but are not limited to, using a best path for a server communication, utilizing different and available communication standards, measuring the quality of different available paths, and determining the most appropriate available medium type for transmission of data as is known in the art (Ouedraogo, fig. 4, and paras. 140 and 142; Purkayastha, fig. 2; paras. 37 and 41-42; Bellur, figs. 1 and 4B-4C, and para. 18; Takamura, figs. 6 and 14-15, and col. 11, lines 22-35 and 49-67, col. 12, lines 4-19, and col. 14, lines 37-44; MPEP 2143(I)(A)(B)(C)(D) - note: e.g., applying known techniques having predictable results).
Regarding claim 2, Colby in view of Ouedraogo, Purkayastha, Bellur and Takamura teaches and makes obvious the method of claim 1, wherein the selecting the transmission medium type further comprises: determining a content type of the content item; and selecting the transmission medium type based on comparing transmission requirements of the content type with the predicted transmission qualities (Takamura, fig. 5-6 and col. 7, line 60 to col 8, line 23; note: path selecting according to service ID as a content type such as audio or video).
Regarding claim 5, Colby in view of Ouedraogo, Purkayastha, Bellur and Takamura teaches and makes obvious the method of claim 1, wherein the predicted transmission qualities comprise: predicted transmission latencies; predicted data rates; predicted dropped packet rates; predicted packet error rates; or predicted packet retransmission rates (Colby, figs. 18-20; col. 15, lines 2-8; note: hop latency for servers; Bellur, paras. 18, 61 and 64-65; note: packet loss and dropped packets; Ouedraogo, para. 142 and Purkayastha, para. 34; note: error rate).
Regarding claim 6, Colby in view of Ouedraogo, Purkayastha, Bellur and Takamura teaches and makes obvious the method of claim 1, wherein the plurality of different transmission medium types comprise two or more of: a fiber optic network connection; an Ethernet network connection; a Multimedia over Coax Alliance (MOCA) network connection; a cellular network connection; a Hybrid Fiber-Coaxial (HFC) network connection; a Digital Subscriber Line network connection; or a Wireless Fidelity (Wi-Fi) network connection (Purkayastha, fig. 6).
Regarding claim 7, Colby in view of Ouedraogo, Purkayastha, Bellur and Takamura teaches and makes obvious the method of claim 1, wherein the selecting the transmission medium type further comprises: determining, for transmitting the content item, a preference for a first type of predicted transmission quality over a second type of predicted transmission quality; and selecting the transmission medium type based on the preference (Purkayastha, para. 34; note: path selected based on preferred characteristic among characteristics).
Regarding claim 8, Colby in view of Ouedraogo, Purkayastha, Bellur and Takamura teaches and makes obvious the method of claim 1, wherein the transmission path of the selected transmission medium type comprises a path between the computing device and an intermediary device, the method further comprising: selecting another transmission medium type, from the plurality of different transmission medium types, for transmitting the content item from the intermediary device to a user device requesting the content item; and causing transmission of the content item from the intermediary device to the user device via another transmission path of the another transmission medium type (Purkayastha, figs. 2-3 and para. 34).
Regarding claim 9, these limitations are rejected on the same ground as claims 1-2.
Regarding claim 10, these limitations are rejected on the same ground as claims 1-2.
Regarding claims 14-16, these limitations are rejected on the same ground as claims 6-8, respectively.
Regarding claim 17, these limitations are rejected on the same ground as claim 1. In addition, a path is selected based on a selected transmission medium type (Takamura, fig. 5-6 and 15; col. 7, line 60 to col 8, line 23; col. 11, lines 22-35 and 49-67; col. 12, lines 4-19).
Regarding claim 18, these limitations are rejected on the same ground as claim 8.
(Takamura, col. 11, lines 61-67; note: satisfies a minimum request; col. 14, lines 37-44).
Regarding claim 20, these limitations are rejected on the same ground as claim 6.
Claims 3-4 and 11-12 are rejected under 35 U.S.C. 103 as being unpatentable over Colby in view of Ouedraogo, Purkayastha, Bellur and Takamura, as applied to claim 1 or 9 above, and in further view of Sen et al. (US 6,765,909) and Segel (US 2007/0133419).
Regarding claims 3-4, Colby in view of Ouedraogo, Purkayastha, Bellur and Takamura fails to teach and make obvious the method of claim 1, wherein the receiving the request comprises receiving the request via a port of the computing device; and wherein the selecting the transmission medium type further comprises: determining, based on the port, transmission requirements of the content item; and selecting the transmission medium type based on comparing transmission requirements of the content item with the predicted transmission qualities, and the method of claim 1, wherein the receiving the request comprises receiving the request from an application present in a user device; and wherein the selecting the transmission medium type further comprises: determining transmission requirements of the application; and selecting the transmission medium type based on comparing transmission requirements of the application with the predicted transmission qualities.
However, Sen discloses handling a network request based on an application type determined by a port number (col. 6, lines 30-33, 38-39 and 60-64; fig. 6) and Segal discloses application types based on port numbers where the application types are VoIP and gaming (paras. 63 and 65; paras. 8 and 72 (especially the third sentence)). Therefore, it would have been obvious to one skilled in the art before the effective filing date of the claimed invention to have wherein the receiving the request comprises receiving the request via a port of the computing device; and wherein the selecting the transmission medium type further comprises: determining, based on the port, transmission requirements of the content item; and selecting the transmission medium type based on comparing transmission requirements of the content item with the predicted transmission qualities, and wherein the receiving the request comprises receiving the request from an application present in a user device; and wherein the selecting the transmission medium type further comprises: determining transmission requirements of the application; and selecting the transmission medium type based on comparing transmission requirements of the application with the predicted transmission qualities in the invention of Colby in view of Ouedraogo, Purkayastha, Bellur and Takamura. The motivation to have the modification and/or well-known benefits of the modification include, but are not limited to, providing network control of data wherein the data packets (requests) include port numbers and the data involves applications having different requirements as is known in the art (Sen, fig. 6 and col. 6, lines 30-33, 38-39 and 60-64; Segal, paras. 8, 63, 65 and 72; Colby, figs. 1c, 6 and 18-20; MPEP 2143(I)(A)(B)(C)(D) - note: e.g., applying known techniques having predictable results).
Regarding claims 11-12, these limitations are rejected on the same ground as claims 3-4, respectively.
Claims 13 and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Colby in view of Ouedraogo, Purkayastha, Bellur and Takamura, as applied to claim 9 or 17 above, and in further view of Lee et al. (US 11,407,147).
Regarding claim 13, Colby in view of Ouedraogo, Purkayastha, Bellur and Takamura fails to teach and make obvious the method of claim 9, wherein the transmission requirements of the content type comprise: required transmission latencies; required data rates; required dropped packet rates; required packet error rates; or required packet retransmission rates.
However, Lee discloses a request for service that includes transmission requirements of a content type including latency, data rates and error rates (figs. 1 and 6A; col. 15, lines 19-43). Therefore, it would have been obvious to one skilled in the art before the effective filing date of the claimed invention to have wherein the transmission requirements of the content type comprise: required transmission latencies; required data rates; required dropped packet rates; required packet error rates; or required packet retransmission rates in the invention of Colby in view of Ouedraogo, Purkayastha, Bellur and Takamura. The motivation to have the modification and/or well-known benefits of the modification include, but are not limited to, providing adequate transmission for data (content) as is known in the art (figs. 1 and 6A; col. 15, lines 19-43; MPEP 2143(I)(A)(B)(C)(D) - note: e.g., applying known techniques having predictable results).
Regarding claim 19, these limitations are rejected on the same ground as claims 5 and 13.
Conclusion
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/Kevin C. Harper/
Primary Examiner, Art Unit 2462