14670194 (P.T.A.B. Sep. 21, 2017)

Ex Parte Hunt

Patent Trial and Appeal BoardSep 21, 2017

14670194 (P.T.A.B. Sep. 21, 2017)

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. 14/670,194 03/26/2015 Neil D. HUNT NETF/0022U SCI 3492 108911 7590 09/25/2017 Arte.ois T aw firm in T T P / Netflix EXAMINER 7710 Cherry Park Drive Suite T #104 Houston, TX 77095 HANCE, ROBERT J ART UNIT PAPER NUMBER 2423 NOTIFICATION DATE DELIVERY MODE 09/25/2017 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): algdocketing @ artegislaw. com kcruz @ artegislaw.com rsmith @ artegislaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte NEIL D. HUNT (Applicant: NETFLIX, Inc.) Appeal 2017-002504 Application 14/670,194 Technology Center 2400 Before HUNG H. BUI, JOSEPH P. LENTIVECH, and AARON W. MOORE, Administrative Patent Judges. LENTIVECH, Administrative Patent Judge. DECISION ON APPEAL Appellant seeks our review under 35 U.S.C. § 134(a) of the Examiner’s Final Rejection of claims 1—20, the only claims pending in the application on appeal. We have jurisdiction over the pending claims under 35 U.S.C. § 6(b). We affirm. Appeal 2017-002504 Application 14/670,194 STATEMENT OF THE CASE Appellant’s Invention Appellant’s invention generally relates to variable bit video streams for adaptive streaming. Spec. 12. Claim 1, which is illustrative, reads as follows: 1. A method, comprising: computing a first estimated bandwidth available for downloading digital content from one or more content servers during a first time window and a second estimated available bandwidth available for downloading the digital content from the one or more content servers during a second time window based on actual bandwidths that were available for downloading the digital content from the one or more content servers during one or more previous time windows; computing a bandwidth variability based on the actual bandwidths available during the one or more previous time windows and estimated bandwidths computed for the one or more previous time windows; determining from a scene complexity map a first complexity level for the digital content within the first time window and a second complexity level for the digital content within the second time window; and selecting a first encoded portion of the digital content to download for playback during the first time window from a first content stream included in a plurality of encoded content streams, wherein each encoded content stream comprises the digital content encoded at a different bit rate, and the first content stream is encoded at a first bit rate, and wherein the first encoded portion is selected based on the first estimated bandwidth available during the first time window, the second estimated bandwidth available during the second time window, the bandwidth variability, and a desired bit rate at which 2 Appeal 2017-002504 Application 14/670,194 a second encoded portion of the digital content to be downloaded subsequent to the first encoded portion is encoded. Rejections & References Claims 1—20 stand rejected on the ground of non-statutory obviousness-type double patenting over claims 1—20 of Hunt (US 8,997,160 B2; issued Mar. 31, 2015). Final Act. 4. Claims 1—20 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Zhang et al. (US 2009/0300204 Al; published Dec. 3, 2009) (“Zhang”) and Drai et al. (US 2009/0172167 Al; published July 2, 2009) (“Drai”). Final Act. 4—9. ANALYSIS Double Patenting Rejection Claims 1—20 stand rejected on the ground of non-statutory obviousness-type double patenting over claims 1—20 of Hunt. Final Act. 4. Because Appellant has not presented any rebuttal arguments against this rejection, we summarily affirm the rejection of claims 1—20 on ground of non-statutory obviousness-type double patenting over claims 1—20 of Hunt. Rejections under § 103(a) Claim 1 Issue: Did the Examiner err by finding the combination of Zhang and Drai teaches or suggests “computing a bandwidth variability based on the actual bandwidths available during the one or more previous time windows and estimated bandwidths computed for the one or more previous time windows,” as recited in claim 1 ? 3 Appeal 2017-002504 Application 14/670,194 Regarding the disputed limitation, the Examiner finds Drai teaches computing an expected (e.g., predicted) bandwidth for a plurality of time windows and computing a deviation (e.g., bandwidth variability) by comparing actual and predicted bandwidths for past time windows. Final Act. 6 (citing Drai ^fl[ 19, 29, 93—95). In particular, the Examiner finds Drai teaches “determining actual bandwidth usage; comparing the actual bandwidth usage to the predicted future bandwidth usage.” Ans. 2 (citing Drai 129). The Examiner finds The purpose of this comparison is to adjust further future bandwidth predictions if the two are different. Implicit in this disclosure is that no adjustment is necessary if there is no difference. It is respectfully submitted that a skilled artisan would recognize that this describes comparison of predicted and actual usage for a same time window in order to determine the accuracy of the prediction. If the prediction was accurate (i.e. no difference between actual and predicted usage), then future predictions do not need to be adjusted. The skilled artisan would recognize that, given the variability of bandwidth usage described throughout the disclosure of Drai, a difference between actual and predicted bandwidths for different time windows would not make sense for the purpose of adjusting future predictions. While comparing different time windows is disclosed in [0093], this disclosure does not relate to the subject matter of [0029]. Ans. 3 (emphasis omitted). Appellant contends the combination of Zhang and Drai fails to teach or suggest “computing a bandwidth variability based on the actual bandwidths available during the one or more previous time windows and estimated bandwidths computed for the one or more previous time windows,” as recited in claim 1. App. Br. 11—14; Reply Br. 3—7. Appellant argues “[n]one of the cited references discloses the limitations of computing 4 Appeal 2017-002504 Application 14/670,194 a bandwidth variability based on the actual bandwidths available during the one or more previous time windows and estimated bandwidths computed for the one or more previous time windows,” as required by claim 1. App. Br. 11 ; see also Reply Br. 3. Appellant argues “in paragraph [0029] of Drai ... the reference discloses that a difference is computed by comparing real time bandwidth usage to a bandwidth usage predicted for a future time window.” Reply Br. 3 (citing Drai 129). Paragraph 29 of Drai is included in the “SUMMARY OF THE INVENTION” section and provides “[pjreferably the method further comprises determining actual bandwidth usage; comparing the actual bandwidth usage to the predicted future bandwidth usage; and if different, then adjusting a further future prediction according to the difference.” Because Drai teaches that the method preferably further comprises, we are persuaded that this embodiment would be further described in the “DETAILED DESCRIPTION” section of the Specification. We have reviewed Drai and agree with Appellant that the teachings of paragraphs 93— 94 of Drai correspond to the teachings of paragraphs 26—29 (App. Br. 13); and the “DETAILED DESCRIPTION” section does not describe an embodiment indicating that the comparison of paragraph 29 is a comparison between an actual bandwidth usage and a predicted future bandwidth usage of a same time window (App. Br. 14). As such, we are persuaded that paragraph 29 refers to the embodiment described in paragraphs 93—94 of Drai. As acknowledged by the Examiner (Ans. 3), these paragraphs teach that the comparison is between actual bandwidth usage and predicted future bandwidth usage of different time windows. Accordingly, we are persuaded the Examiner erred in finding Drai teaches or suggests the disputed 5 Appeal 2017-002504 Application 14/670,194 limitation. For the foregoing reasons, we do not sustain the Examiner’s rejection under 35 U.S.C. § 103(a) of claim 1; independent claims 9 and 18, which recite corresponding limitations; and claims 2—8, 10—17, 19, and 20, which depend therefrom. DECISION We affirm the Examiner’s double-patenting obviousness-type rejection of claims 1—20. We reverse the Examiner’s rejection of claims 1—20 under 35 U.S.C. § 103(a). Since at least one rejection encompassing all claims on appeal is affirmed, the decision of the Examiner 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)(l)(iv). AFFIRMED 6