Sony Interactive Entertainment LLC

Patent Trials and Appeals Board

Dec 14, 2021

2020006114 (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. 15/847,060 12/19/2017 Charles McCoy SCEA16098US conf 7574 7574 156216 7590 12/14/2021 Sony Interactive Entertainment c/o Mayer & Williams PC 55 Madison Avenue Suite 400 Morristown, NJ 07960 EXAMINER MONTOYA, OSCHTA I ART UNIT PAPER NUMBER 2421 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): SCEAPatentDocket@playstation.sony.com docket@mwpatentlaw.com mwolf@mwpatentlaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte CHARLES MCCOY, TRUE XIONG, and LING JUN WONG Appeal 2020-006114 Application 15/847,060 Technology Center 2400 ____________ Before RICHARD M. LEBOVITZ, St. JOHN COURTENAY, III, and JASON J. CHUNG, Administrative Patent Judges. LEBOVITZ, Administrative Patent Judge. DECISION ON APPEAL The Examiner rejected claims 1-4 and 23-26 under 35 U.S.C. § 103 as obvious. Claims 5-22 were withdrawn from consideration. Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject the claims. 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. Appellant identifies the real party in interest as Sony Interactive Entertainment LLC. Appeal Br. 2. Appeal 2020-006114 Application 15/847,060 2 STATEMENT OF THE CASE Embodiments of Appellant’s claimed subject matter relate generally to systems and methods that synchronize the playback of network media across multiple content playback devices. See Spec. ¶ 6. REJECTIONS Claims 1-4 and 23-26 stand rejected by the Examiner as follows: Claims 1-4 and 23-25 under pre-AIA 35 U.S.C. § 103(a) as obvious in view of Riha (US 8,261,314 B2, issued Sept. 4, 2012) (hereinafter “Riha”) and Li et al. (US 2013/0198298 A1, published Aug. 1, 2013) (hereinafter “Li”). Non-Final Act. 5. Claim 26 under pre-AIA 35 U.S.C. § 103(a) as obvious in view of Riha, Li, and Eriksson et al. (US 7,287,068 B1, issued Oct. 23, 2007) (hereinafter “Eriksson”). Non-Final Act. 7. Claims 1-4 on the ground of nonstatutory obviousness-type double patenting as obvious in view of claims 1-9 of U.S. Patent No. 8,997,169 (hereinafter “the ’169 patent”). Non-Final Act. 4. Claims 1-4 on the ground of nonstatutory obviousness-type double patenting as obvious in view of claims 1-9 of U.S. Patent No. 9,848,221 (hereinafter “the ’221 patent”). Non-Final Act. 4. At the outset, we note that the nonstatutory obviousness-type double patenting (OTDP) rejections were not addressed in the Appeal Brief nor presented for review in the Reply Brief. See Appeal Br. 3. These OTDP rejections are therefore summarily affirmed. See 37 C.F.R. § 41.37(c)(1)(iv) (Arguments not made are waived). Appeal 2020-006114 Application 15/847,060 3 Claim 1, the only independent claim on appeal, is reproduced below: 1. A method of synchronizing playback of media content between a first content playback device and a second content playback device, comprising: a. playing back a content item on a first content playback device; b. estimating an amount of the content item to buffer based on a playback point of the content item on the first content playback device, and buffering but not playing back the content item on the second content playback device, the buffering but not playing back occurring at least until the buffer includes a portion, based on the estimated amount, of the content item currently being played back on the first content playback device; and c. sending a signal to begin playback of the content item on the second content playback device, such that the playback of the content item on the first and second content playback devices is synchronized. OBVIOUSNESS REJECTIONS Claim 1 Independent claim 1 is directed to a method of “synchronizing playback of media content between a first content playback device and a second content playback device.” The claim has three steps. In the first step (a), content is played back on a first “playback device.” The Specification discloses an example of a playback device as an IPTV (internet protocol TV), which is delivered digital content from the internet. Spec. ¶¶ 2, 4, 43. The second step (b) of claim 1, which is the step in dispute in this appeal, comprises “estimating an amount of the content item to buffer based on a playback point of the content item on the first content playback device,” and then buffering “until the buffer includes a portion, based on the estimated amount, of the content item currently being played back on the first content Appeal 2020-006114 Application 15/847,060 4 playback device.” The last step (c) of claim 1 is sending a signal to the second playback device to begin playback, such that the playback on the first and second playback devices is synchronized. The Examiner relied upon Riha for its description of steps (a) and (c) of claim 1. The Examiner found that the difference between Riha and claim 1 is that Riha does not describe step (b) comprising “estimating an amount of the content item to buffer based on a playback point of the content item on the first content playback device.” Non-Final Act. 5. The Examiner found that Li describes step (b) and found it obvious to implement Li’s step in Riha “to properly synchronize the content for the benefit of giving quality of service.” Id. Appellant argues that Riha “operates in a fundamentally different manner from the claimed invention since in Riha all the individual media streams arrive at their respective STBs [Set-Top Boxes] at the same time.” Appeal Br. 4. Appellant explains that in Riha “all the STBs begin presentation of the individual media streams at the same time.” Id. As a consequence, Appellant further explains, “none of the STBs in Riha join the playback after it has begun on another STB.” Id. Because of this arrangement, Appellant contends “there is no portion of the media content currently being played back that is available for buffering (or storing) by any individual STB.” Id. at 5. For this reason, Appellant argues that Riha “fails to show or suggest” step (b) of claim 1 of “the buffering but not playing back occurring at least until the buffer includes a portion, based on the estimated amount, of the content item currently being played back on the first content playback device.” Id. Appeal 2020-006114 Application 15/847,060 5 Appellant further contends that there would have been no reason to apply Li’s teaching regarding buffering to Riha because “all the STBs begin playback of the media content at the same time” and therefore “there is no playback point on a first STB that needs to be synchronized with a second STB.” Appeal Br. 5. Appellant attacks the Examiner’s rationale for combining Riha and Li, asking how does Li improve Riha and “allow proper synchronization when the media streams in Riha are already synchronized?” Id. In response to Appellant’s argument that the Examiner’s reason to combine Riha and Li is inadequate, the Examiner further elaborated that “modifying Riha with Li will allow a user to join a program after it has begun,” improving “the system of Riha, since many more viewers will be able to join the program and not miss the desire media.” Ans. 5. Appellant responded that modifying Riha in this manner “would completely eviscerate the teachings of Riha, thereby completely changing its principle of operation” because “Riha is directed to ensuring that all the set- top boxes (STBs) begin playback of the media content at the same time, and consequently there is in fact no playback point on a first STB that needs to be synchronized with a second STB.” Reply Br. 2-3. We being our analysis with Riha. Riha describes synchronizing a group of set-top boxes on the same premises for presentation of the same media content at the same time. Riha 1:40-43. Riha explains that synchronization is necessary because there can be delays between the gateway delivering the media to an STB, for example, “due to different wiring distances to individual STB’s throughout the premises.” Id. 4:5-9. To accomplish the synchronization of the STBs, the delay between the STB Appeal 2020-006114 Application 15/847,060 6 and the gateway streaming the media to the STB is determined2 and then the media is played after applying the delay.3 See Riha, Figure 3, which illustrates this embodiment. The second cited reference, Li, describes “a midway join process 400, used by moderator 302 and participant 304 in order to allow participant 304 to join the video session after playback is already in progress.” Li ¶ 111. Appellant did not dispute the Examiner’s findings regarding Li. Appellant also did not dispute that Li describes “buffering but not playing back occurring at least until the buffer includes a portion, based on the estimated amount, of the content item currently being played back on the first content playback device” as recited in step (b) of claim 1. Appellant’s principal contention is that there would have been no reason to buffer media in Riha’s method because the STB streams are synchronized by releasing the play of the media at each STB to account for the different delay times for the stream to reach the STB. We review appealed rejections for reversible error based on the arguments and evidence Appellant provides for each issue identified by Appellant. 37 C.F.R. § 41.37(c)(1)(iv); Ex parte Frye, 94 USPQ2d 1072, 2 “For instance, the gateway can ping each SIB 106 including the STB with the DVR to calculate the delay between the STB and gateway 104. These delays can be due to different wiring distances to individual STB’s throughout the premises. The gateway 104 can then determine which streams from the VHO headend 112 are to be synchronized and can determine the slowest of these streams.” Riha 4: 5-11. 3 “In one embodiment, the gateway 104 can calculate the differences in timing of the other streams in respect to this slowest stream. The gateway 104 can send the faster streams to the DVR to be recorded and can release these streams for play at the individual STB's after applying delay compensating using the delay calculation.” Riha 4: 12-17. Appeal 2020-006114 Application 15/847,060 7 1075 (BPAI 2010) (precedential) (cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) (explaining that even if the Examiner had failed to make a prima facie case, “it has long been the Board’s practice to require an applicant to identify the alleged error in the examiner’s rejections”)). The Examiner did not err in finding it obvious to apply Li to Riha. As the Examiner found, it would have been obvious to one of ordinary skill in the art to apply Li to Riha when a user seeks to join a program already in progress. Ans. 5. This would not “eviscerate” or change Riha’s principle of operation of Riha (Reply Br. 2-3) because Riha is addressing a different problem than Li. While, Riha synchronizes all the STBs at the same premises for playback at the same time by using a determined delay time, Riha does not address the problem arising when a participant’s STB is off and wants to view the media already in progress at the other STBs. Li identifies a need for a participant “to join the video session after playback is already in progress” and describes a process for doing so. Li ¶¶ 111-112. Applying this process to Riha does not change how Riha is implemented, but simply allows a participant to join a synchronized media session already in progress. For the foregoing reasons, the rejection of representative claim 1 as obvious in view of Riha and Li is affirmed. Grouped claims 2-4 and 23-25 were not argued separately and thus fall with representative claim 1 under our procedural rule. See 37 C.F.R. § 41.37(c)(1)(iv). Appellant did not argue the second-stated rejection of claim 26 separately. Arguments not made are waived or forfeited. See 37 C.F.R. § Appeal 2020-006114 Application 15/847,060 8 41.37(c)(1)(iv). Therefore, we affirm the Examiner’s rejection of claim 26 based upon the doctrines of waiver or forfeiture. CONCLUSION In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1-4, 23-25 103(a) Riha, Li 1-4, 23-25 26 103(a) Riha, Li, Eriksson 26 1-4 Nonstatutory Double Patenting; ’169 Patent 1-4 1-4 Nonstatutory Double Patenting; ’221 Patent 1-4 Overall Outcome 1-4, 23-26 TIME PERIOD 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) (2013). AFFIRMED