Phillips, Chris et al.

Patent Trials and Appeals Board

Jan 30, 2020

14069565 - (D) (P.T.A.B. Jan. 30, 2020)

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.
14/069,565 11/01/2013 Chris Phillips P41865-US1 1005
27045 7590 01/30/2020
ERICSSON INC.
6300 LEGACY DRIVE
M/S EVR 1-C-11
PLANO, TX 75024
EXAMINER
COONEY, ADAM A
ART UNIT PAPER NUMBER
2443
NOTIFICATION DATE DELIVERY MODE
01/30/2020 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):
amber.rodgers@ericsson.com
michelle.sanderson@ericsson.com
pam.ewing@ericsson.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte CHRIS PHILLIPS, ROBERT HAMMOND FORSMAN,
and JENNIFER ANN REYNOLDS
____________

Appeal 2019-000237
Application 14/069,565
Technology Center 2400
____________

Before JAMES W. DEJMEK, SCOTT E. BAIN, 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, 4–6, 8, 10, 13–16, 18, and 20.2 Appeal Br. 2; Reply Br. 2. We
have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

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 Ericsson AB. Appeal Br. 1.
2 Appellant initially appealed claims 1, 4–8, 10, 13–18, and 20–22 (Appeal
Br. 1), but the Examiner subsequently withdrew the rejection of claims 7,
17, 21, and 22 (Ans. 13). Thus, we review only the remaining claims herein.
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STATEMENT OF THE CASE
The Claimed Invention
Appellant’s invention generally relates to “systems and methods for
optimizing delivery of adaptive bitrate (ABR) assets in a content delivery
network.” Spec. ¶ 2.
Claim 1, reproduced below, is illustrative of the subject matter on
appeal:
1. A method operative at a content delivery node of a content
delivery network (CDN) configured to deliver adaptive
streaming content, the method comprising:
monitoring historical delivery patterns of adaptive bitrate
(ABR) assets downloaded from the content delivery node to a
plurality of subscribers in a service area served by the content
delivery node, the ABR assets comprising at least one of video
components, audio track components and one or more subtitle
languages of a plurality of content programs requested by the
subscribers over a period of time;
obtaining aggregate statistical distributions of the ABR
assets based on the historical delivery patterns monitored at the
content delivery node;
establishing delivery rules for the content delivery node
based on the aggregate statistical distributions of the ABR assets;
analyzing a manifest available to the content delivery node
with respect to a particular content;
analyzing segment files stored in a database cache of the
content delivery node for the particular content;
determining that one or more segment files referenced by
the manifest are absent from the database cache;
responsive to the determining, applying one or more
delivery rules associated with the content delivery node to
determine representations of the absent segment files that satisfy
one or more delivery rules; and
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pulling, from another content delivery node of the CDN,
only the representations of the absent segment files satisfying the
one or more delivery rules and storing the pulled representations
in the database cache of the content delivery node.
Supplemental Appeal Br. 3, filed May 11, 2018 (Claims Appendix).

The Applied References
The Examiner relies on the following references as evidence of
unpatentability of the claims on appeal:
Gagliardi US 2010/0306368 A1 Dec. 2, 2010
Bouazizi US 2012/0151009 A1 June 14, 2012
Wang US 2014/0201334 A1 July 17, 2014

The Examiner’s Rejection
The Examiner made the following rejection of the claims on appeal:
Claims 1, 4–6, 8, 10, 13–16, 18, and 20 stand rejected under 35 U.S.C.
§ 103 as being unpatentable over Wang, Bouazizi, and Gagliardi. Final
Act. 6–15.

ANALYSIS3
Appellant disputes the Examiner’s finding that the combination of
Wang, Bouazizi, and Gagliardi renders obvious claims 1, 4–6, 8, 10, 13–16,
18, and 20, including independent claims 1, 10, and 20. See Appeal Br. 9–
17; Reply Br. 2–9. Appellant argues the appealed claims as a group.

3 Throughout this Decision, we have considered Appellant’s Appeal Brief
filed March 22, 2018 (“Appeal Br.”); Appellant’s Reply Brief filed
October 4, 2018 (“Reply Br.”); the Examiner’s Answer mailed August 10,
2018 (“Ans.”); the Final Office Action mailed September 7, 2017 (“Final
Act.”); and Appellant’s Specification filed November 1, 2013 (“Spec.”).
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See Appeal Br. 9–17. Thus, for purposes of our analysis, we select
independent claim 1 as the representative claim, 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 the cited art, particularly Bouazizi as
relied on by the Examiner, teaches “monitoring historical delivery patterns
of adaptive bitrate (ABR) assets downloaded from the content delivery node
to a plurality of subscribers,” as recited in claim 1. Appeal Br. 9–14; Reply
Br. 2–6. We find Appellant’s argument persuasive, and turn first to
Bouazizi’s disclosure.
Bouazizi generally relates to “systems, methods, and apparatuses for
generating and handling streaming media quality-of-experience [QoE]
metrics.” Bouazizi ¶ 2. Bouazizi discloses:
During or after presentation of streaming media, in accordance
with a periodic QoE reporting interval, a client device, which
may be currently presenting the streaming media to user or have
previously presented streaming media to a user, may be
configured to generate one or more values for various QoE
metrics and report the values to a QoE metric collecting server
for storage at the QoE metric collecting server.
Bouazizi ¶ 22. Such QoE metrics include “a re-buffering event metric,
a buffering time metric, a buffered media time metric, . . . an average
inactivity time per segment metric, a sleeping duration metric,” among other
disclosed metrics. Bouazizi ¶ 4. For example, “[t]he re-buffering event
metric may indicate that a re-buffering event has occurred after a buffer
underflow was experienced,” and “[a] large number of re-buffering events
reported from one or multiple clients may indicate that the provided bitrate
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. . . may exceed the available end-to-end bandwidth bottleneck.”
Bouazizi ¶ 36.
The Examiner finds Bouazizi’s disclosure of reporting “re-buffering
events” teaches the limitation at issue, namely, “monitoring historical
delivery patterns of adaptive bitrate (ABR) assets downloaded from the
content delivery node to a plurality of subscribers.” Final Act. 8; see
Ans. 18 (“[T]he examiner notes that the monitored/reported information
with respect to the re-buffering events is what is equated to the claimed
‘historical delivery patterns’.”); 19 (“Since the reported information is
regarding re-buffering events that have already occurred[,] . . . such reported
information would be considered ‘historical delivery patterns’.”) (emphasis
omitted). The Examiner concludes Bouazizi teaches monitoring historical
delivery patterns of ABR assets downloaded from the content delivery node
to a plurality of subscribers “by receiving a report on QoE metrics, such as
rebuffering events and buffer media time, which have already happened over
a period of time.” Ans. 19.
Appellant responds: “There is simply no teaching or even a scintilla of
suggestion in Bouazizi as to how the re-buffering events or any reports
thereof are transformed into historical delivery patterns of multiple ABR
assets as set forth in Appellant’s claims.” Appeal Br. 11; see Reply Br. 3
(“[R]e-buffering events at a plurality of client devices as disclosed in
Bouazizi, although they already occurred in the past, do not teach or suggest
‘historical delivery patterns’ as set forth in the claims under any reasonable
interpretation.”). In particular, Appellant argues:
It should be noted that the phrase “historical delivery patterns”
has a specific meaning in the claims, which the Examiner has
repeatedly chosen to ignore throughout the prosecution of the
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instant patent application. In the context of the instant patent
application, “historical delivery patterns” denotes various
categories of video components and audio components of an
overall number of media assets delivered from a server over a
certain period of time to a plurality of client devices. By way of
illustration, a historical video delivery pattern at a server may
comprise 35% of downloaded content being high definition,
1080p video encoded at 8-10 Mbs; 45% of downloaded content
being high definition, 720p video encoded at 3-8 Mbs, and so on.
Reply Br. 3. Appellant argues “re-buffering events in Bouazizi only indicate
the occurrence of playback interruptions as noted by the Examiner,” and that
“monitoring the number of playback interruptions or re-buffering events
does not inform anything about the video/audio percentages of the media
assets downloaded from a server over a period of time.” Reply Br. 3–4.
Appellant argues “[t]hese ratios or percentages can remain the same
regardless of whether just one client device or multiple client devices
experienced one or more playback interruptions over the year.” Reply Br. 4
(emphasis added). Appellant submits:
[T]he Examiner is engaging in a comparison of “apples” and
“oranges” while purportedly reading the claimed feature of
“historical delivery patterns” on Bouazizi, without providing an
articulated analysis as to how one could go from the “apples” of
“re-buffering events”, “playback interruptions” and/or “average
information regarding delay jitter” to the “oranges” of the
claimed “historical delivery patterns”.
Reply Br. 5.
Appellant’s arguments and the Examiner’s pertinent findings turn on
the interpretation of “monitoring historical delivery patterns of [ABR] assets
downloaded from the content delivery node to a plurality of subscribers,” as
recited in claim 1. When construing claim terminology during prosecution
before the Office, claims are to be given their broadest reasonable
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interpretation consistent with the Specification, reading claim language in
light of the Specification as it would be interpreted by one of ordinary skill
in the art. In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir.
2004). However, the broadest reasonable interpretation differs from the
broadest possible interpretation. In re Smith Int’l, Inc., 871 F.3d 1375, 1383
(Fed. Cir. 2017).
The correct inquiry in giving a claim term its broadest reasonable
interpretation in light of the specification is not whether the
specification proscribes or precludes some broad reading of the
claim term adopted by the examiner. And it is not simply an
interpretation that is not inconsistent with the specification. It is
an interpretation that corresponds with what and how the
inventor describes his invention in the specification, i.e., an
interpretation that is “consistent with the specification.”
Smith, 871 F.3d at 1382–83 (quoting In re Morris, 127 F.3d 1048, 1054
(Fed. Cir. 1997)). Additionally, we are mindful that limitations are not to be
read into the claims from the Specification. In re Van Geuns, 988 F.2d
1181, 1184 (Fed. Cir. 1993).
In this case, the Specification describes “historical delivery patterns of
[ABR] assets downloaded from the content delivery node to a plurality of
subscribers” with reference to “an ABR asset delivery pattern 116” in
Figure 1, which depicts, for example, 35% of downloaded content being
high definition, 1080p video encoded at 8–10 Mbs, 45% of downloaded
content being high definition, 720p video encoded at 3–8 Mbs, and so on.
Spec. ¶¶ 36–37, Fig. 1, Claim 1. The Specification discloses that “[a]s client
devices 105 access various content via associated content delivery nodes
over a configurable period of time, a historical delivery pattern learning and
updating process is operative to obtain delivery statistics for each content
delivery node on a component-by-component basis, i.e., video, audio or
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subtitles.” Spec. ¶ 35 (emphasis added). The Specification also
distinguishes “historical network conditions associated with each content
deliver[y] node,” describing these network conditions as, for example,
“download rate distributions, bandwidth utilization and other performance
metrics . . . which may be utilized . . . for controlling content distribution
through the network.” Spec. ¶ 35 (emphasis added).
Given the Specification’s description of “historical delivery patterns”
and its distinguishing of such “delivery patterns” from “historical network
conditions” like performance metrics, we find the Examiner’s reliance on
Bouazizi’s “re-buffering events” to teach the limitation at issue
unpersuasive. More specifically, we find the Examiner does not provide
sufficient evidence or technical reasoning to show that interpreting the
limitation at issue to include “re-buffering events” is consistent with the
specification (i.e., corresponds with what and how the inventor describes his
invention in the specification). See Smith, 871 F.3d at 1383. For example,
as argued by Appellant (Reply Br. 3–4), the Examiner does not sufficiently
explain how monitoring a number of playback interruptions or re-buffering
events teaches historical delivery patterns of downloaded ABR assets,
particularly where such assets may be downloaded without such playback
interruptions or issues.
Based on the foregoing, we find the Examiner has not persuasively
shown how Bouazizi teaches “monitoring historical delivery patterns of
adaptive bitrate (ABR) assets downloaded from the content delivery node to
a plurality of subscribers,” as recited in independent claim 1. The Examiner
also has not persuasively shown how the other cited art remedies this
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deficiency. Because we find this issue dispositive here, we do not address
Appellant’s other arguments.
Accordingly, 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 10 and 20, which recite commensurate limitations. Additionally,
we do not sustain the Examiner’s rejection under 35 U.S.C. § 103 of
claims 4–6, 8, 13–16, and 18, which depend therefrom.

DECISION SUMMARY
Claims
Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 4–6, 8, 10,
13–16, 18,
20
103 Wang, Bouazizi,
Gagliardi
1, 4–6, 8, 10,
13–16, 18,
20

REVERSED