Syed, Yasser F. et al.

Patent Trials and Appeals Board

Jan 2, 2020

14285131 - (D) (P.T.A.B. Jan. 2, 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.
14/285,131 05/22/2014 Yasser F. Syed 26141.0152U1 6763
16000 7590 01/02/2020
Comcast
c/o Ballard Spahr LLP
999 Peachtree Street, Suite 1000
Atlanta, GA 30309
EXAMINER
HASAN, MAINUL
ART UNIT PAPER NUMBER
2485
NOTIFICATION DATE DELIVERY MODE
01/02/2020 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):
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 and DONALD J. WESTER
____________

Appeal 2019-001356
Application 14/285,131
Technology Center 2400
____________

Before ELENI MANTIS MERCADER, NORMAN H. BEAMER, and
GARTH D. BAER, Administrative Patent Judges.

MANTIS MERCADER, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
final rejection of claims 1, 3–10, and 12–19, 21, and 22, which are all the
pending claims. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
THE INVENTION
Appellant’s claimed invention is directed to providing video content
and includes “receiving an encoding parameter associated with a first
content transmission” in which the “encoding parameter can indicate a level
of complexity to encode the first content transmission” and “selecting, based
on the encoding parameter, a second content transmission” from which a
“third content transmission” is generated (Abstract).
Independent claim 1, reproduced below with emphases added, is
representative of the subject matter on appeal:
1. A method, comprising:
receiving an encoding parameter associated with a first
content transmission, wherein the encoding parameter indicates
a level of complexity to encode the first content transmission;
requesting, based on the encoding parameter and an
allocation of bandwidth within a third content transmission, a
second content transmission, wherein the second content
transmission is encoded at a second bit rate that is different than
a first bit rate of the first content transmission;
receiving the second content transmission; and
generating the third content transmission, wherein the
third content transmission comprises the second content
transmission and one or more of the first content transmission
or a fourth content transmission.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies Comcast Cable Communications, LLC
as the real party in interest (Appeal Br. 1).
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(Claims Appendix (Appeal Br. 17)).

REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is the following:

Name Reference Date
Zhang US 6,795,506 B1 Sept. 21, 2004
Shumate US 2010/0118697 A1 May 13, 2010

REJECTIONS
The Examiner made the following rejections:
Claims 1, 3–10, 12–19, 21, and 22 stand rejected under 35 U.S.C.
§ 101 because the claims do not amount to significantly more than the
abstract idea of organizing and manipulating information through
mathematical correlations. Final Act. 6.2
Claims 1, 3–8, 10, 12–17, 19, 21, and 22 stand rejected under 35
U.S.C. § 102(a)(1) as being anticipated by Zhang. Final Act. 8.3
Claims 9 and 18 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Zhang and Shumate. Final Act. 17.
ISSUES4
The issues are whether the Examiner erred in finding that:

2 Although the heading of the rejection refers to claims 1–18 as being
rejected under 35 U.S.C. § 101 (see Final Act. 6), the parties treat all claims
as rejected. See Appeal Br. 7, Ans. 5.
3 The heading of the rejection includes claim 23. Claim 23 was canceled in
an after-final Amendment filed on January 16, 2018.
4 In the Final Office Action, the Examiner interprets independent claim 19
under 35 U.S.C. § 112(f) (see Final Act. 2–3), and Appellant contests this
interpretation. See Appeal Br. 6–7, Ans. 3–5. However, Appellant makes
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1. claims 1, 3–10, and 12–19, 21, and 22 are directed to ineligible
subject matter; and
2. Zhang discloses the limitation of:
requesting, based on the encoding parameter and an allocation
of bandwidth within a third content transmission, a second
content transmission, wherein the second content transmission
is encoded at a second bit rate that is different than a first bit
rate of the first content transmission,
as recited in independent claim 1, and similarly recited in independent
claims 10 and 19.
ANALYSIS
Except where indicated, we adopt the Examiner’s findings in the
Answer and Final Office Action and we add the following primarily for
emphasis. We note that if Appellant failed to present arguments on a
particular rejection, we will not unilaterally review those uncontested
aspects of the rejection. See Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI
2010) (precedential); Hyatt v. Dudas, 551 F.3d 1307, 1313–14 (Fed. Cir.
2008) (the Board may treat arguments Appellant failed to make for a given
ground of rejection as waived).
Patent Eligibility
The Examiner determines claim 1 is patent ineligible under 35 U.S.C.
§ 101, because “the claim(s) as a whole, considering all claim elements both
individually and in combination, do not amount to significantly more than an
abstract idea of organizing and manipulating information through

no further argument regarding the anticipation rejection of claim 19, and
claim 19 stands or falls with independent claim 1. Accordingly, we decline
to consider the interpretation of claim 19 under 35 U.S.C. § 112(f), as such a
finding is unnecessary regarding the patentability of claim 19.
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mathematical correlations” (Final Act. 6; see also Alice Corp. Pty. Ltd. v.
CLS Bank Int’l, 573 U.S. 208, 217 (2014) (describing the two-step
framework “for distinguishing patents that claim laws of nature, natural
phenomena, and abstract ideas from those that claim patent-eligible
applications of those concepts”)). Particularly, the Examiner finds the
claims are directed to the
abstract idea of a method of receiving, selecting, and generating
[a] video bitstream by using an apparatus having a computer
program product to perform the aforementioned functions
which are nothing more than receiving and manipulating
information through mathematical comparison and sorting
(Final Act. 7).
After the docketing of this appeal, the USPTO published revised
guidance on the application of § 101 (“Guidance”). See USPTO’s 2019
Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7,
2019) (“Memorandum”). Pursuant to the Guidance “Step 2A,” the office
first looks to whether the claim recites:
(1) Prong One: any judicial exceptions, including certain groupings of
abstract ideas (i.e., mathematical concepts, certain methods of
organizing human activity such as a fundamental economic practice,
or mental processes); and
(2) Prong Two: additional elements that integrate the judicial exception
into a practical application (see MPEP § 2106.05(a)–(c), (e)–(h) (9th
Ed., Rev. 08.2017 (Jan. 2018))).
Only if a claim (1) recites a judicial exception and (2) does not integrate that
exception into a practical application, does the Office then (pursuant to the
Guidance “Step 2B”) look to whether the claim:
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(3) adds a specific limitation beyond the judicial exception that are not
“well-understood, routine, conventional” in the field (see MPEP
§ 2106.05(d)); or
(4) simply appends well-understood, routine, conventional activities
previously known to the industry, specified at a high level of
generality, to the judicial exception.
See Memorandum.
Pursuant to Step 2A, Prong One of the Guidance, the Office first looks
to “evaluate whether the claim recites a judicial exception, i.e., an abstract
idea” (Memorandum, 84 Fed. Reg. at 54). Here, we agree with the
Examiner that the claim is directed to “a method of receiving, selecting, and
generating [a] video bitstream.” We also agree with the Examiner that the
generation of a video bitstream would involve mathematical concepts.
However, under the Office’s October 2019 Update: Subject Matter
Eligibility (the “October 2019 Update”) (available at
https://www.uspto.gov/sites/default/files/documents/peg_oct_2019_update.p
df):
[w]hen determining whether a claim recites a mathematical
concept (i.e., mathematical relationships, mathematical
formulas or equations, and mathematical calculations),
examiners should consider whether the claim recites a
mathematical concept or merely includes limitations that are
based on or involve a mathematical concept. A claim does not
recite a mathematical concept (i.e., the claim limitations do
not fall within the mathematical concept grouping), if it is
only based on or involves a mathematical concept. [footnote
omitted] For example, a limitation that is merely based on or
involves a mathematical concept described in the specification
may not be sufficient to fall into this grouping, provided the
mathematical concept itself is not recited in the claim.
[footnote omitted]
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October 2019 Update at 3, emphasis added. As claim 1 is based on, or
involves a mathematical concept, but does not recite the mathematical
concept, claim 1 does not meet the criterion of reciting mathematical
concepts, and the claim does not recite a judicial exception (Memorandum,
84 Fed. Reg. at 52). Nor does claim 1 recite “certain methods of organizing
human activity” or “mental processes,” the remaining categories of the
judicial exception (Id.).
As claim 1 does not recite one of the groupings of subject matter
within the judicial exception, we need not proceed to Step 2A, Prong Two.
However, we note that we agree with Appellant that the disclosure identifies
a technological problem solved by the claimed invention when a content
stream increases in complexity. See Appeal Br. 9, citing Spec. ¶ 18.
Accordingly, we reverse the Examiner’s patent ineligibility rejection
of claims 1, 3–10, 12–19, 21, and 22.
Anticipation
Appellant argues that
[e]ven if, for the sake of argument, this second “bitstream”
discloses “a second content transmission,” it does not appear
that the second “[bitstream]” is ever requested, let alone “based
on [an] encoding parameter and an allocation of bandwidth” as
claimed.
(Appeal Br. 15, citing Zhang 8:43–56). Appellant further contends that
“Zhang is silent as to requesting content transmissions based on an
‘allocation of bandwidth’ as claimed” (Appeal Br. 15, citing Zhang 11:9–
17).
We are not persuaded by Appellant’s arguments. The Examiner finds,
and we agree, that Zhang
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clearly discloses the request of one of the receivers for contents
V2, V3 and V4, wherein the network device 92 remultiplexes
V2, V3 and V4 from the multiplexed streams coming from 58,
60 and 62 based on the bandwidth requirements and bitrate
information.
(Ans. 17, citing Zhang 10:65–11:19). The Examiner further finds, and we
agree, that Zhang
discloses reducing the bitrate of V2 and V3 in order to be able
to transmit the multiplexed compressed bitstream. This
reduction in bitrate of V2 or V3 does not automatically happen.
This is based on the requirement of the receiver side. Fig. 5A [
] shows the network device 92 which constitutes a rate
controller 409 which sends back the request of varying the
bitrate of the incoming streams based on the requirement of the
receiver that the scheduler 411 is scheduling the multiplexed
data for.
(Ans. 17, citing Zhang 11:9–17, Fig. 5A, 21:52–22:2).
We find no error in the Examiner’s detailed findings, and Appellant
does not address the Examiner’s findings. Accordingly, we sustain the
Examiner’s anticipation rejection of independent claim 1, as well as
independent claims 10 and 19 commensurate in scope and not separately
argued, and the rejections of dependent claims 3–9, and 12–18, 21, and 22
not separately argued. See Appeal Br. 14–15.
CONCLUSION
The Examiner erred in finding that claims 1, 3–10, and 12–19, 21, and
22 are directed to ineligible subject matter.
The Examiner did not err in finding that Zhang discloses the
limitation of:
requesting, based on the encoding parameter and an allocation
of bandwidth within a third content transmission, a second
content transmission, wherein the second content transmission
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is encoded at a second bit rate that is different than a first bit
rate of the first content transmission,
as recited in independent claim 1, and similarly recited in independent
claims 10 and 19.
DECISION
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1, 3–10, 12–
19, 21, 22
101 Eligibility 1, 3–10, 12–
19, 21, 22
1, 3–8, 10,
12–17, 19,
21, 22
102(a)(1) Zhang 1, 3–8, 10,
12–17, 19,
21, 22

9, 18 103 Zhang, Shumate 9, 18
Overall
Outcome
1, 3–10, 12–
19, 21, 22

The Examiner’s decision is affirmed because we have affirmed at least one
ground of rejection with respect to each claim on appeal. See 37 C.F.R.
§ 41.50(a)(1) (2017).
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)(1)(iv).

AFFIRMED