Comcast Cable Communications, LLC

Patent Trials and Appeals Board

Dec 27, 2021

2021000076 (P.T.A.B. Dec. 27, 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.
15/707,643 09/18/2017 Yasser F. Syed 26141.0046U2 1139
16000 7590 12/27/2021
Comcast
c/o Ballard Spahr LLP
999 Peachtree Street, Suite 1600
Atlanta, GA 30309-4421
EXAMINER
SCIACCA, SCOTT M
ART UNIT PAPER NUMBER
2478
NOTIFICATION DATE DELIVERY MODE
12/27/2021 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):
USpatentmail@ballardspahr.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
________________

Ex parte YASSER F. SYED, PAUL DAVID EGENHOFER,
SHAWN ANDREW KERCHER, and DONALD DEAN DISCHNER
________________

Appeal 2021-000076
Application 15/707,643
Technology Center 2400
________________

Before LARRY J. HUME, JASON J. CHUNG, and
BETH Z. SHAW, Administrative Patent Judges.

CHUNG, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals the Final Rejection
of claims 2–21.2 We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. According to Appellant, Comcast Cable Communications,
LLC is the real party in interest. Appeal Br. 1.
2 Claim 1 is cancelled. Appeal Br. 11.
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INVENTION
The invention relates to management of information streams.
Abstract. Claim 2 is illustrative of the invention and is reproduced below:
2. A method, comprising:
receiving a first fragment of a first data stream, wherein
the first data stream is associated with a content source encoded
at a first bit rate;
selecting, based on a quality of service measurement, a
second data stream associated with the content source encoded
at a second bit rate;
determining a metric indicating that at least one frame
associated with a boundary point of the first fragment and at
least one frame associated with a boundary point of a second
fragment of the second data stream are a same frame type; and
switching, based on the metric, playback from the first
fragment to the second fragment.
Appeal Br. 11 (Claims App.) (emphases added).
REJECTIONS
The Examiner rejects claims 2, 9, and 14 under the judicially-created
doctrine of non-statutory obviousness-type double patenting (OTDP) over
the combination of Syed (US 9,813,325 B2; filed Dec. 27, 2012), Pantos
(US 2011/0246622 A1; published Oct. 6, 2011), and Labrozzi (US
2012/0128061 A1; published May 24, 2012). Final Act. 2–8.
The Examiner rejects claims 2–21 under 35 U.S.C. § 1033 as being
unpatentable over the combination of Pantos and Labrozzi. Final Act. 8–30.

3 Although the Examiner denotes this case as being subject to pre-AIA rules,
we note that this case was filed on September 18, 2017, making it subject to
the AIA rules. Accordingly, we denote this rejection as 35 U.S.C. § 103
rather than 35 U.S.C. § 103(a).
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ANALYSIS
I. Claims 2, 9, and 14 Rejected Under a Non-Statutory Obviousness-
Type Double Patenting Rejection
The Examiner rejects claims 2, 9, and 14 under the judicially-created
doctrine of non-statutory obviousness-type double patenting over the
combination of Syed, Pantos, and Labrozzi. Final Act. 2–8.
Appellant does not proffer any arguments. We, therefore, summarily
sustain the Examiner’s rejection of claims 2, 9, and 14. See 37 C.F.R.
§ 41.39(a)(1) (2019).
II. Claims 2–21 Rejected Under 35 U.S.C. § 103
The Examiner finds Labrozzi teaches determining whether two video
streams have identical Group of Pictures (hereinafter “GOP”) structures that
are aligned with each other at all points and switching streams at GOP I-
frame boundaries, which the Examiner maps to the limitation “determining a
metric indicating that at least one frame associated with a boundary point of
the first fragment and at least one frame associated with a boundary point of
a second fragment of the second data stream are a same frame type” and
“switching, based on the metric, playback from the first fragment to the
second fragment” recited in claim 2. Ans. 4–6 (citing Labrozzi ¶¶ 56–58,
60, Fig. 9); Final Act. 12 (citing Labrozzi ¶ 60, Fig. 9). In addition, the
Examiner determines that Pantos’s principle of operation involves switching
between two video streams, and modifying Pantos to include Labrozzi’s
switching at the I-frame boundary point does not change the principle of
operation of Pantos. Ans. 6–7 (citing Pantos ¶ 55). Moreover, the Examiner
determines that a person having ordinary skill in the art at the time of the
invention (hereinafter “PHOSITA”) would have combined Pantos and
Labrozzi to enable a device to switch cleanly from frame N of one stream to
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N+1 of another stream when the streams include B-frames. Ans. 7–9 (citing
Pantos ¶¶ 55, 61; Labrozzi ¶¶ 33, 60, Fig. 9); Final Act. 12 (citing Labrozzi
¶ 60).
Appellant argues Labrozzi merely teaches determining whether two
video streams have identical GOP structures that are aligned with each other
at all points in order to switch playback from one stream to another, but fails
to teach “determining a metric indicating that at least one frame associated
with a boundary point of the first fragment and at least one frame associated
with a boundary point of a second fragment of the second data stream are a
same frame type” and “switching, based on the metric, playback from the
first fragment to the second fragment.” Appeal Br. 4–6 (citing Labrozzi
¶ 60); Reply Br. 2–4. In addition, Appellant argues the combination of
Pantos and Labrozzi changes the principle operation of Pantos and renders
its teachings inoperable for its intended purposes because Pantos merely
explains a transition point by audio sample matching and Labrozzi merely
explains determining a match at all points of a stream. Appeal Br. 6–7;
Reply Br. 4–6. Appellant also argues the Office Action relies on
impermissible hindsight to combine Pantos and Labrozzi and, therefore, the
Office Action does not consider the claims as a whole. Appeal Br. 7–9. We
disagree with Appellant.
As an initial matter, the Examiner makes new findings in the Answer.
Compare Ans. 4–6 (citing Labrozzi ¶¶ 56–58, 60, Fig. 9), with Final Act. 12
(citing Labrozzi ¶ 60, Fig. 9). Appellant does not rebut the Examiner’s new
finding. Compare Appeal Br. (lacking an argument pertaining to paragraphs
56–58 of Labrozzi where Labrozzi discusses “a clean switch should be at an
I-frame GOP boundary”), with Reply Br. (lacking an argument pertaining to
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paragraphs 56–58 of Labrozzi where Labrozzi discusses “a clean switch
should be at an I-frame GOP boundary”).
Nonetheless, Labrozzi teaches determining whether two video streams
have identical GOP structures that are aligned with each other (i.e., same
frame type) at all points and switching streams at GOP I-frame boundaries
(i.e., “at least one frame associated with a boundary point of the first
fragment” and “at least one frame associated with a boundary point of a
second fragment of the second data stream”), which teaches the limitation
“determining a metric indicating that at least one frame associated with a
boundary point of the first fragment and at least one frame associated with a
boundary point of a second fragment of the second data stream are a same
frame type” recited in claim 2. Ans. 4–6 (citing Labrozzi ¶¶ 56–58, 60, Fig.
9); Final Act. 12 (citing Labrozzi ¶ 60, Fig. 9).
Labrozzi teaches when two video streams have identical GOP
structures that are aligned with each other at all points, then switching
playback from one stream to another at GOP I-frame boundaries, teaches or
suggests the limitation “switching, based on the metric, playback from the
first fragment to the second fragment” recited in claim 2. Ans. 4–6 (citing
Labrozzi ¶¶ 56–58, 60, Fig. 9); Final Act. 12 (citing Labrozzi ¶ 60, Fig. 9).
We disagree with Appellant’s argument that the combination of
Pantos and Labrozzi changes the principle operation of Pantos and renders
its teachings inoperable for its intended purposes because Pantos merely
explains a transition point by audio sample matching, and Labrozzi merely
explains determining a match at all points of a stream. Appeal Br. 6–7;
Reply Br. 4–6. As noted above, Appellant does not rebut the Examiner’s
new finding. Compare Appeal Br. (lacking an argument pertaining to
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paragraphs 56–58 of Labrozzi where Labrozzi discusses “a clean switch
should be at an I-frame GOP boundary”), with Reply Br. (lacking an
argument pertaining to paragraphs 56–58 of Labrozzi where Labrozzi
discusses “a clean switch should be at an I-frame GOP boundary”).
Furthermore, we agree with the Examiner’s determination that Pantos’s
principle of operation involves switching between two video streams and
modifying Pantos to include Labrozzi’s switching at the I-frame boundary
point does not change the principle of operation of Pantos. Ans. 6–7 (citing
Pantos ¶ 55).
We disagree with Appellant’s argument that the Office Action relies
on impermissible hindsight to combine Pantos and Labrozzi and, therefore,
the Office Action does not consider the claims as a whole. Appeal Br. 7–9.
Appellant’s improper hindsight argument is unavailing. Appeal
Br. 25. Appellant has not provided persuasive evidence that combining the
respective teachings of the references (as determined by the Examiner —
Ans. 7–9 (citing Pantos ¶¶ 55, 61; Labrozzi ¶¶ 33, 60, Fig. 9); Final Act. 12
(citing Labrozzi ¶ 60)) would have been “uniquely challenging or difficult
for one of ordinary skill in the art,” or that such a combination would have
“represented an unobvious step over the prior art.” Leapfrog Enters., Inc. v.
Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007). Nor has Appellant
provided any objective indicia of non-obviousness, which, as our reviewing
court explains, “operate[] as a beneficial check on hindsight.” Cheese Sys.,
Inc. v. Tetra Pak Cheese & Powder Sys., Inc., 725 F.3d 1341, 1352 (Fed.
Cir. 2013).
Additionally, we agree with the Examiner’s determination that a
PHOSITA would have combined Pantos and Labrozzi to enable a device to
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switch cleanly from frame N of one stream to N+1 of another stream when
the streams include B-frames. Ans. 7–9 (citing Pantos ¶¶ 55, 61; Labrozzi
¶¶ 33, 60, Fig. 9); Final Act. 12 (citing Labrozzi ¶ 60).
Appellant does not argue claims 3–21 separately with particularity.
Appeal Br. 3–9. Accordingly, we sustain the Examiner’s rejection of:
(1) independent claims 2, 9, and 14; and (2) dependent claims 3–8, 10–13,
and 15–21 under 35 U.S.C. § 103.
We have only considered those arguments that Appellant actually
raised in the Briefs. Arguments Appellant could have made, but chose not to
make, in the Briefs have not been considered and are deemed to be waived.
See 37 C.F.R. § 41.37(c)(1)(iv).
CONCLUSION
Claim(s)
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
2, 9, 14 Non-Statutory
Obviousness-type
Double Patenting
over the
combination of
Syed, Pantos,
Labrozzi
2, 9, 14
2–21 103 Pantos, Labrozzi 2–21
Overall
Outcome
2–21
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). See
37 C.F.R. § 41.50(f).
AFFIRMED