Ex Parte Kienzle et al

Patent Trial and Appeal BoardSep 5, 2014

12132028 (P.T.A.B. Sep. 5, 2014)

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. 12/132,028 06/03/2008 Martin G. Kienzle YOR920050494US2(108CON) 6936 49267 7590 09/05/2014 TUTUNJIAN & BITETTO, P.C. 425 Broadhollow Road, Suite 302 Melville, NY 11747 EXAMINER KURIEN, CHRISTEN A ART UNIT PAPER NUMBER 2427 MAIL DATE DELIVERY MODE 09/05/2014 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 MARTIN G. KIENZLE, KRISHNA RATAKONDA, DEEPAK S. TURAGA, and DURGA SAI PHANEENDHAR VEMURU ____________ Appeal 2012-005370 Application 12/132,028 Technology Center 2400 ____________ Before ROBERET E. NAPPI, KEN B. BARRETT, and MICHELLE N. WORMMEESTER, Administrative Patent Judges. WORMMEESTER, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s final rejection of claims 1–8, 10–18, and 20. Claims 9 and 19 are indicated as being directed to allowable subject matter. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. Appeal 2012-005370 Application 12/132,028 2 STATEMENT OF THE CASE Introduction Appellants’ invention relates to adaptive streaming during trick play operations, such as fast-forward and rewind operations. (See Spec. ¶¶ 2, 4.) Exemplary independent claim 1 reads as follows: 1. A system for bit-rate constrained stream playout at preset speeds including a regular playout speed and other than the regular playout speed, comprising: multiple streams encoded at a same bit-rate (R) but at a plurality of playout speeds; and a selection mechanism responsive to requests for playout speeds, the selection mechanism selecting from among the plurality of streams to service a request; wherein the system adapts to decreases in available network bandwidth by applying bitrate adaption. Applied Prior Art The Examiner relies on the following prior art in rejecting the claims on appeal: Porter et al. (Porter) US 5,659,539 Aug. 19, 1997 DeMoney US 6,065,050 May 16, 2000 Rejections Claims 1–3, 6, 14–18, and 20 stand rejected under the judicially- created doctrine of nonstatutory obviousness-type double patenting as being unpatentable over U.S. Patent No. 7,577,980 B2 to Kienzle et al. (See Ans. 4–20.) Claim 20 stands rejected under 35 U.S.C. § 101 as being directed to nonstatutory subject matter. (See Ans. 20–21.) Claims 1–8, 10–18, and 20 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over DeMoney and Porter. (See Ans. 21–25.) Appeal 2012-005370 Application 12/132,028 3 ANALYSIS Obviousness-Type Double Patenting Rejection Appellants acknowledge the Examiner’s rejection of claims 1–3, 6, 14–18, and 20 under the judicially-created doctrine of nonstatutory obviousness-type double patenting, but they do not present any arguments challenging the rejection. (See App. Br. 10; Reply Br. 4.) Having no arguments from Appellants to consider, we sustain the Examiner’s double patenting rejection of claims 1–3, 6, 14–18, and 20. Rejection under 35 U.S.C. § 101 Appellants argue that the Examiner has erred in rejecting independent claim 20 because the recited term “computer readable storage medium” excludes transitory signals from the scope of the claim. (See App. Br. 13– 14.) We disagree with Appellants. In finding that claim 20 covers nonstatutory subject matter, the Examiner explains that the broadest reasonable interpretation of a claim that recites the term “a computer readable storage medium” covers transitory propagating signals, particularly when the specification does not provide an explicit definition of the term. (See Ans. 20, 27.) As the Examiner observes, Appellants’ specification does not define a computer readable storage medium. (See id.) While Appellants point out that the specification provides “possible features” of a computer readable medium, (see App. Br. 13; see also Specification ¶ 13), we note Appellants have not identified any limiting language in the specification that excludes transitory signals from the meaning of the term. Accordingly, we are unpersuaded of error in the Examiner’s conclusion that the recited computer readable storage medium encompasses transitory propagating signals, which constitute nonstatutory Appeal 2012-005370 Application 12/132,028 4 subject matter. See Ex parte Mewherter, 107 USPQ2d 1857, 1862 (PTAB 2013) (precedential-in-part). In view of the foregoing, we sustain the Examiner’s § 101 rejection of claim 20. Rejection under 35 U.S.C. § 103 Appellants argue that the Examiner has erred in rejecting independent claim 1 because the applied prior art fails to teach the feature “the system adapts to decreases in available network bandwidth by applying a bit-rate adaption.” (See App. Br. 17–20.) Independent claims 14 and 20 recite similar features. (See id. at 17, 24–26.) We disagree with Appellants. Recognizing that DeMoney does not teach the argued feature, the Examiner relies on Porter for its teaching of a system that uses higher-speed streams, which require fewer computational resources. (See Ans. 22; see also Porter, col. 21, ll.13–24.) Appellants contend that Porter does not teach adjusting the system to different conditions, (see App. Br. 18), or taking into consideration decreases in the available network bandwidth, (App. Br. 19; Reply Br. 7). As the Examiner points out, however, Porter teaches “bit budgeting,” where a stream server determines whether the selection of a particular frame will exceed the available bandwidth and acts according to that determination. (See Ans. 29; see also Porter, col. 17, ll. 9–63.) Cited portions of Porter further teach that any remaining bandwidth available between transmissions of selected I-frames may be filled with P- and B- frames, which are significantly smaller than I-frames. (See Porter, col. 17, ll. 55–56, 60–63, col. 18, ll. 29–32, 37–38; see also Ans. 29.) We note that Porter also teaches that a client may specify for the selection process certain parameters, which affect the available bandwidth for transmitting certain Appeal 2012-005370 Application 12/132,028 5 types of frames. (See Porter, col. 18, ll. 44–53 (“[T]he client may request more frames per second. In response, the stream server 110 transmits more P and B frames . . . by increasing the number of qualifying I-frames that it skips. On the other hand, the client may request a more continuous picture. In response, the stream server 110 transmits a higher percentage of qualifying I-frames, leaving less bandwidth for transmitting P and B- frames.”); see also Ans. 29.) Given Porter’s teachings, we are unpersuaded of error in the Examiner’s finding that the applied prior art teaches or suggests the feature “the system adapts to decreases in available network bandwidth by applying a bit-rate adaption.” (See Ans. 22, 29–30.) We note that Appellants further contend that Porter’s system adapts to the size of the frame at issue. (See Reply Br. 7.) While we agree with Appellants that Porter’s selection process takes into account the size of the frame at issue, we also agree with the Examiner that the selection process takes into account the available network bandwidth for transmitting the frame. (See Porter, col. 17, ll. 9–63.) In view of the foregoing, we sustain the Examiner’s rejection of claims 1–8, 10–18, and 20. DECISION The Examiner’s decision rejecting claims 1–3, 6, 14–18, and 20 under the judicially-created doctrine of nonstatutory obviousness-type double patenting is affirmed. The Examiner’s decision rejecting claim 20 under 35 U.S.C. § 101 is affirmed. Appeal 2012-005370 Application 12/132,028 6 The Examiner’s decision rejecting claims 1–8, 10–18, and 20 under 35 U.S.C. § 103(a) 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 dw