Comcast Cable Communications, LLC

Patent Trials and Appeals Board

Dec 14, 2021

2020006044 (P.T.A.B. Dec. 14, 2021)

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. 15/979,740 05/15/2018 Weidong Mao 007412.04076\US 1689 71867 7590 12/14/2021 BANNER & WITCOFF , LTD ATTORNEYS FOR CLIENT NUMBER 007412 1100 13th STREET, N.W. SUITE 1200 WASHINGTON, DC 20005-4051 EXAMINER PENG, HSIUNGFEI ART UNIT PAPER NUMBER 2426 NOTIFICATION DATE DELIVERY MODE 12/14/2021 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): PTO-71867@bannerwitcoff.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte WEIDONG MAO and JASON PRESS Appeal 2020-006044 Application 15/979,740 Technology Center 2400 Before JAMES B. ARPIN, CHRISTA P. ZADO, and DAVID J. CUTITTA II, Administrative Patent Judges. CUTITTA, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1-23. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM IN PART. 1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies Comcast Cable Communications, LLC, as the real party in interest. Appeal Brief filed April 13, 2020 (“Appeal Br.”) at 2. Appeal 2020-006044 Application 15/979,740 2 CLAIMED SUBJECT MATTER Summary The subject matter of Appellant’s application relates to providing video content to users more efficiently in video on demand (“VOD”) systems using “cloud-based digital video recorder (DVR) services, streaming and linear services.” Spec. ¶ 2.2 By way of background, the Specification explains that because “users may have differing equipment for processing and presentation, and may have varying network bandwidth capabilities, each video may need to be delivered in one of a number of different formats in order to serve any particular user” and this approach poses a problem because “the number of stored versions becomes very large and the required storage may become expensive.” Id. The Specification further explains that “other systems store content in a single format and perform on-demand transcoding, such as just-in-time transcoding, in order to provide the content in a format appropriate for a particular user device,” and while “[t]hese systems require much less storage . . . on-demand transcoding of video content can be a processor intensive activity.” Id. ¶ 3. The claimed methods seek to address these problems by first dividing a content item into portions and then determining relative popularity of various portions of the content item. Id. ¶ 7. Portions of the content item determined as popular are transcoded into a different format and stored 2 In addition to the above-noted Appeal Brief, throughout this Decision we refer to: (1) Appellant’s Specification filed May 15, 2018 (“Spec.”); (2) the Final Office Action (“Final Act.”) mailed September 17, 2019; (3) the Examiner’s Answer (“Ans.”) mailed June 25, 2020; and (4) the Reply Brief filed August 14, 2020 (“Reply Br.”). Appeal 2020-006044 Application 15/979,740 3 before receiving a request from a user. In contrast, portions of the content item determined as less popular are transcoded into a different format after receiving a request from the user for the less popular portion. Id. In summary, the claimed methods transcode popular segments of a video in advance of requests while providing other less popular segments of the video using on-demand transcoding, by transcoding the segments after a request is received. Illustrative Claim Claim 1, reproduced below, illustrates the claimed subject matter: 1. A method comprising: receiving, by a computing device, usage information associated with a first portion of a content item; transcoding, based on the usage information and before receiving a request for the content item in a first format, the first portion from a second format to the first format; receiving, from a requesting device after transcoding the first portion, the request for the content item in the first format; and after receiving the request: sending, to the requesting device, the transcoded first portion; and transcoding a second portion of the content item from the second format to the first format. Appeal Br. 12 (Claims App.). REFERENCES AND REJECTIONS The Examiner rejects claims 1, 2, 4, 5, 7-18, and 20-23 under 35 U.S.C. § 102 (a) (1) or (a) (2) as anticipated by Visharam et al. (US 2010/0235542 A1, published Sept. 16, 2010) (“Visharam”). Final Act. 3-6. Appeal 2020-006044 Application 15/979,740 4 The Examiner rejects claims 3 and 19 under 35 U.S.C. § 103 as unpatentable over the combined teachings of Visharam and Wang et al. (US 2013/0290697 A1, published Oct. 31, 2013) (“Wang”). Id. at 7-8. The Examiner rejects claim 6 under 35 U.S.C. § 112(b) as indefinite and under 35 U.S.C. § 103 as unpatentable over the combined teachings of Visharam and Wu (US 7,843,824 B2, issued Nov. 30, 2010). Id. at 2-3, 8-9. OPINION We review the appealed rejections for error based upon the issues identified by Appellant and in light of Appellant’s arguments and evidence. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential). 35 U.S.C. § 102 Rejection The Examiner finds Visharam discloses each of the limitations of claim 1. Final Act. 3-4 (citing Visharam ¶¶ 66, 106-111, 331, 333-336, and Figs. 3, 22, 23); Ans. 10-16. Appellant argues the Examiner errs in rejecting claim 1 as anticipated by Visharam. Specifically, Appellant argues that: Visharam does not disclose or suggest at least “transcoding, based on the usage information and before receiving a request for the content item in a first format, the first portion from a second format to the first format; receiving, from a requesting device after transcoding the first portion, the request for the content item in the first format; and after receiving the request: sending, to the requesting device, the transcoded first portion; and transcoding a second portion of the content item from the second format to the first format” as recited in claim 1. Reply Br. 2. Appeal 2020-006044 Application 15/979,740 5 As explained below, we agree with Appellant the Examiner errs in finding Visharam anticipates claim 1 and, thus, we do not sustain the rejection of claim 1 and of claims 9 and 15, which are commensurate in scope. The portions of Visharam cited by the Examiner describe a network device, e.g., media flow director (“MFD”) 101, which can “efficiently deliver video content . . . over a network 104 to a plurality of clients 101a, 101b, 101n.” Visharam ¶ 52. In one embodiment, shown in Figure 3, Visharam explains that “[f]or videos, people may not be watching the entire video and some portions of a video may be hotter than others, so the hottest portion of a content is cached. This allows the MFD to be more intelligent in its caching.” Visharam ¶ 106. This embodiment of Visharam is silent about transcoding the content portions. Id. ¶¶ 106, 107, and Fig. 3. In a separate embodiment, shown in Figure 22, Visharam’s MFD 101 transcodes a single bit rate file 2201 into multiple bit rates for entire files determined as hot content and then stores the multiple bit rate data as separate files in local storage or cache. Visharam ¶ 331. Thus, this embodiment transcodes data before receiving possible user requests but does not discuss on-demand transcoding, i.e., transcoding data after receiving a user request for a particular data rate. Id. In another separate embodiment, shown in Figure 23, Visharam’s “MFD 101 dynamically transcodes segments (or chunks) of content files. The MFD 101 receives a high-quality single bit rate content file 2301 and stores the single bit rate content file in at least one local storage device.” Visharam ¶ 333. MFD 101 then on-demand transcodes a client requested Appeal 2020-006044 Application 15/979,740 6 segment at a different data rate than the stored single bit rate file 2302. Id. But, in this embodiment, the stored data is not transcoded based on usage information, nor is any particular segment transcoded based on usage information. Id. Rather, transcoding occurs based on a user’s requested data rate. Id. ¶ 333, and Fig. 23. Appellant argues that “Visharam describes that the entire content file is transcoded for popular bit rates” and, therefore, Visharam cannot disclose “‘transcoding . . . the first portion [of the content item] from a second format to the first format’ and ‘after receiving the request [for the content item in a first format]: . . . transcoding a second portion of the content item from the second format to the first format.’” Appeal Br. 6 (underlining omitted). According to Appellant, “[a]s to transcoding, Visharam does not treat different portions of a content item differently.” Id. The Examiner responds by finding that “Visharam discloses, as in one embodiment, a popularity index is used for portions of content to determine whether a portion is hot” and “the hottest portion of a content is cached.” Ans. 10 (citing Visharam ¶¶ 106, 108 and Fig. 3) (emphasis added). Accordingly, we note the Examiner relies on a first embodiment of Visharam to disclose caching hot content. Although this embodiment ostensibly stores the data in the cache before receiving a user request, there is no disclosure about transcoding the content before storing it. See Visharam ¶¶ 106-108, and Fig. 3 (disclosing that hot “portions of the videos 305, 306, 307, 308, are stored in the cache 309,” but failing to mention transcoding the portions.). The Examiner continues the rebuttal by citing a different embodiment of Visharam to find that “the hottest (first) portion should be already Appeal 2020-006044 Application 15/979,740 7 transcoded to a first bit rate such as popular or requested bit rate (first format) from an original single bit rate (second format) before the first portion is cached after determining a high demand for the first portion.” Ans. 10 (citing Visharam ¶ 331 and Fig. 22) (emphasis added). The Examiner relies on yet another embodiment of Visharam to disclose the transcoding of a content portion after receiving a user request. In particular, the Examiner finds “Visharam further discloses a possible embodiment stores video content in a custom format (second format) that can be transcoded to any bit rate that it requires. This allows the server side player 201 to know exactly where the associated frame is for each bit rate transcoding” and “thus, as the second portion (other than the hottest portion) of the content is requested by the user, the server side player 201 then is able to dynamically transcode to the popular or requested bit rate (first format).” Ans. 10-11 (citing Visharam ¶ 66) (emphasis added). In response, Appellant argues that, in the rejection, the Examiner creates a hypothetical example to connect the dots between various disparate embodiments of Visharam: Visharam teaches that the entire content item has been transcoded into one or more popular bit rates. Thus, the dynamic transcoding feature would more likely be used for non-popular bitrate formats. As a whole, the content item does not exist in the requested format prior to the user requesting it, and after such a request, the entire content item will be dynamically created in that non-popular bitrate format. . . . [T]he Office proposes a hypothetical involving a request for a non-popular bitrate format. The Office notes that the “second” portion (a “non-hot” portion) of that non-popular bitrate format will be dynamically created after the request. However, this discussion ignores the fact that the “first” portion (the “hot” portion) of the non-popular bitrate format will also Appeal 2020-006044 Application 15/979,740 8 need to be created dynamically after that request. It would not be created “before receiving a request,” as recited in claim 1. Reply Br. 5 (underlining omitted). At the outset, we agree with Appellant that the Examiner errs by improperly creating a hypothetical example that mixes and matches distinct embodiments of Visharam to disclose the limitations at issue. Anticipation is a test of strict identity. Trintec Indus., Inc. v. Top-U.S.A. Corp., 295 F.3d 1292, 1296 (Fed. Cir. 2002). That is, to meet the strict identity test for anticipation, a reference must disclose “within the four corners of the document not only all of the limitations claimed but also all of the limitations arranged or combined in the same way as recited in the claim.” Net MoneyIN, Inc. v. VeriSign, Inc., 545 F.3d 1359, 1371 (Fed. Cir. 2008). Here, the Examiner has combined different embodiments from Visharam in formulating the anticipation rejection. See id. (For anticipation, “the [prior art] reference must clearly and unequivocally disclose the claimed [invention] or direct those skilled in the art to the [invention] without any need for picking, choosing, and combining various disclosures not directly related to each other by the teachings of the cited reference.” (parenthetically quoting In re Arkley, 455 F.2d 586, 587 (CCPA 1972))). In addition, the Examiner has not established Visharam discloses the limitations challenged by Appellant. In particular, we are not persuaded that Visharam discloses transcoding a first segment of a content item, based on usage information and before receiving the request and then transcoding a second segment of the content item, after receiving the request, as recited in claim 1. On this record, the Examiner does not demonstrate that Visharam discloses all of the limitations of independent claim 1. Accordingly, we do Appeal 2020-006044 Application 15/979,740 9 not sustain the anticipation rejection of claim 1.3 Because we agree with at least one of the dispositive arguments advanced by Appellant, we need not reach the merits of Appellant’s other arguments with respect to this rejection of claim 1. We also do not sustain the anticipation rejection of independent claims 9 and 15 and of claims 2, 4, 5, 7, 8, 10-14, 16-18, and 20-23, which variously depend from claims 1, 9, and 15. 35 U.S.C. § 103 Rejection Because the Examiner does not rely on Wang or Wu, alone or in combination, to cure the deficiency of the anticipation rejection over Visharam discussed above, we also do not sustain the obviousness rejections of claims 3, 6, and 19. 35 U.S.C. § 112 (b) Rejection The Examiner rejects claim 6 under 35 U.S.C. § 112 (b) as indefinite. Final Act. 2-3; Ans. 3. Appellant does not address the merits of this rejection. Appeal Br. 3- 10. Therefore, we summarily sustain this rejection. See MPEP § 1205.02, 9th ed., Rev. 10.2019 Last Revised June 2020 (“If a ground of rejection stated by the examiner is not addressed in the appellant’s brief, that ground of rejection will be summarily sustained by the Board.”). 3 Our reversal should not be taken as an indication of allowability or non- obviousness of claim 1. Whether an ordinarily skilled artisan would have found it obvious to modify Visharam by having motivation to combine the various disparate embodiments to teach or suggest the limitations at issue is not a question before us. Because the Examiner has not rejected the claim under 35 U.S.C. § 103, we will not speculate in that regard here in the first instance on appeal. Appeal 2020-006044 Application 15/979,740 10 DECISION SUMMARY In summary: TIME PERIOD FOR RESPONSE No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv) (2019). AFFIRMED IN PART Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 2, 4, 5, 7-18, 20-23 102(a) Visharam 1, 2, 4, 5, 7-18, 20-23 3, 19 103 Visharam, Wang 3, 19 6 103 Visharam, Wu 6 6 112 (b) Indefiniteness 6 Overall Outcome 6 1-5, 7-23