Ex Parte Côté et al

Patent Trials and Appeals Board

Jun 24, 2019

14853868 - (D) (P.T.A.B. Jun. 24, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/853,868 09/14/2015
36630 7590 06/26/2019
IP-MEX Inc.
Unit D2 (Second Floor)
150 Terence Matthews Crescent
KANATA, ON K2MIX4
CANADA
FIRST NAMED INVENTOR
Sebastien Cote
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
VT-074-US-CON 9336
EXAMINER
HALLENBECK-HUBER, JEREMIAH CHARLES
ART UNIT PAPER NUMBER
2489
NOTIFICATION DATE DELIVERY MODE
06/26/2019 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):
vdonnelly@ip-mex.com
admin@ip-mex.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SEBASTIEN COTE and JEAN-NOEL KRAUSE
Appeal 2017-011566
Application 14/853,868
Technology Center 2400
Before CARL W. WHITEHEAD JR., JEFFREY S. SMITH and
JASON V. MORGAN, Administrative Patent Judges.
WHITEHEAD JR., Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants are appealing the final rejection of claims 1-20 under 35
U.S.C. § 134(a). Appeal Brief 5. We have jurisdiction under 35 U.S.C.
§ 6(b).
We affirm.
Introduction
The invention is directed to "a method and system for encoding a
media file or part thereof for transmission in real time over a varying
bandwidth link to a mobile unit." Specification 2.
Appeal2017-011566
Application 14/853,868
Representative Claim
1. A method for encoding a media file or part thereof for
transmission in real time over a varying bandwidth link to a
mobile unit, comprising:
employing at least one processor of a transcoder for:
(i) encoding one or more fragments of the media file into
transcoded media fragments to form a stream fragment;
(ii) sending the stream fragment to a transmission buffer
of the transcoder;
(iii) determining an estimated transmit time of a
previously formed stream fragment, the estimated transmit time
being a time interval required for said previously formed stream
fragment to be conveyed from the transmission buffer and
consumed by the varying bandwidth link;
(iv) determining an estimated display time of said stream
fragment at the mobile unit; and
(v) adjusting a current encoding rate of the transcoded
media fragments as a function of the estimated transmit time
and the estimated display time.
Re} ections on Appeal
Claims 1-20 stand rejected on the ground of nonstatutory double
patenting as being unpatentable over claims 1-3, 5, 8, 11, 17, 18 and 24 of
U.S. Patent 9,137,551 B2; issued September 15, 2015. Final Action 4--7.
Claims 1-5, 9, 11-15 and 19 stand rejected under pre-AIA 35 U.S.C.
§ 102(b) as being anticipated by Van Beek (US Patent Application
Publication 2008/0107173 Al; published May 8, 2008). Final Action 7-10.
Claims 6-8 and 16-18 stand rejected under pre-AIA 35 U.S.C.
§I03(a) as being unpatentable over Van Beek and P. Venkat Rangan, CSE
228: Multimedia Systems, Lecture 7, University of California, San Diego,
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Application 14/853,868
available at https://cseweb.ucsd.edu/classes/sp03/cse228/Lecture_7 .html,
published 2003, last visited June 21, 2019. Final Action 10-13.
ANALYSIS
Rather than reiterate the arguments of Appellants and the Examiner,
we refer to the Appeal Brief (filed May 3, 2017), the Reply Brief (filed
September 10, 2017), the Answer (mailed September 8, 2017) and the Final
Action ( mailed November 3, 2016) for the respective details.
Double Patenting Rejection
Appellants do not proffer substantive arguments regarding the non-
statutory double patenting rejection therefore we summarily affirm the
Examiner'snon-provisionalrejectionofclaims 1-3, 5, 8, 11, 17, 18 and24
on the ground of non-statutory double patenting. See Appeal Brief 16;
Reply Brief 3; see also Ex parte Frye, 94 USPQ2d 1072, 107 5 (BP AI 2010)
(precedential) ("If an appellant fails to present arguments on a particular
issue - or, more broadly, on a particular rejection - the Board will not, as
a general matter, unilaterally review those uncontested aspects of the
rejection. See, e.g., Hyatt v. Dudas, 551 F.3d 1307, 1313-14 (Fed. Cir.
2008) (the Board may treat arguments appellant failed to make for a given
ground of rejection as waived)").
35 U.S.C. § 102(b) Rejection
Appellants argue Van Beek fails to anticipate the claimed invention
because Van Beek does not teach claim 1 's limitation:
(iii) determining an estimated transmit time of a previously
formed stream fragment, the estimated transmit time being £!
time interval required for said previously formed stream
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Application 14/853,868
fragment to be conveyed from the transmission buffer and
consumed by the varying bandwidth link.
Appeal Brief 25 ( emphasis added).
Appellants contend the Specification provides a clear definition of the
term "estimated transmit time":
The time interval used in transmitting one or more transcoded
media fragments, to be also referred to as a stream fragment,
depends on the bandwidth that is available on the Variable
Bandwidth Link 204 and is under the control of the reliable
transmission control protocol (TCP).
Reply Brief 5 (citing Specification 13).
Support for the definition of "estimated transmit time" can be
found in paragraph [0113]: 'To clarify the expression "transmit
time" or "estimated transmit time," it should be noted that this is
effectively the period of time needed for the transcoded
fragments to be serially transmitted at the bit rate of the Variable
Bandwidth Link 204, i.e[.] the time the transcoded fragments
occupy while leaving the Variable Bit Rate Transcoder 202.'
Appeal Brief 18; see Specification 13-14. 1
Appellants further argue:
It should be noted that the estimated transmit time is effectively
the period of time needed for the transcoded fragments to be
serially transmitted at the bit rate of the Variable Bandwidth Link
204, i.e. the time the transcoded fragments occupy while leaving
the Variable Bit Rate Transcoder 202. It is not the delay time
between the Variable Bit Rate Transcoder 202 and the Mobile
1 It is noted that the Specification's paragraphs are not numbered and
therefore we refer to the page numbers when addressing subject matter
within the Specification.
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Application 14/853,868
Unit 104, which is not known and is irrelevant to the operation
of the embodiment of the invention.
Appeal Brief 24.
The Examiner find Van Beek teaches the limitation in "[V]an Beek,
,r 0019 ['time delay incurred by video data in the sender buffer']; ,r 0023
[using past measurements for present computations]." Final Action 8. The
Examiner determines, "The claimed time between the completion of
transcoding and transmission of the channel corresponds to the sender
buffering time (O* ~ TE) of [V]an Beek, where transcoded video data is
temporarily stored while awaiting transmission over a channel." Answer
12-13 (citing Van Beek i-fi-fl9, 24--29). The Examiner finds, "Use of the
term 'conveyed' from the transmission buffer is of sufficient breadth to
include the time the stream fragment is stored in the transmission buffer
awaiting transmission." Answer 13.
Appellants contend when, "claim 1 is read in its entirety "to be
conveyed from the transmission bu[fer and consumed by the varying
bandwidth Zin~', it is sufficiently clear that it recites a transmission process
of the stream fragment from the transmission buffer over the transmission
link, and nothing else." Reply Brief 4.
We find Appellants' arguments persuasive because when the claim is
read in its entirety and in light of the Specification it is evident that
estimated transmit time does not include the time the stream fragment is
stored in the transmission buffer as the Examiner interprets. "A claim is
anticipated only if each and every element as set forth in the claim is found,
either expressly or inherently described, in a single prior art reference."
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Application 14/853,868
Verdegaal Bros., Inc. v. Union Oil Co. of Cal., 814 F.2d 628,631 (Fed. Cir.
1987). Accordingly, we reverse the Examiner's anticipation rejection of
claims 1-5, 9, 11-15 and 19. We also reverse the Examiner's obviousness
rejection of dependent claims 6-8 and 16-18. The Rangan reference does
not address the noted deficiency of Van Beek. Also, the Rangan reference
was not relied upon to reject independent claims 1 and/or 11.
DECISION
The Examiner's nonstatutory double patenting rejection of claims 1-
20 are affirmed.
The Examiner's 35 U.S.C. §102 rejection of claims 1-5, 9, 11-15 and
19 is reversed.
The Examiner's 35 U.S.C. §103 rejection of claims 6-8 and 16-18 is
reversed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l). See 37 C.F.R.
§ 1.136(a)(l )(v).
AFFIRMED
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