Disney Enterprises, Inc.

Patent Trials and Appeals Board

Aug 28, 2020

2019000775 (P.T.A.B. Aug. 28, 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.
14/508,214 10/07/2014 Samuel Joseph REISNER 40189/05401(13-
DIS-129-ME
2675
94470 7590 08/28/2020
DISNEY ENTERPRISES, INC.
c/o Fay Kaplun & Marcin, LLP
150 Broadway
Suite 702
New York, NY 10038
EXAMINER
DANG, PHILIP
ART UNIT PAPER NUMBER
2488
NOTIFICATION DATE DELIVERY MODE
08/28/2020 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):
fhall@fkmiplaw.com
mmarcin@fkmiplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SAMUEL JOSEPH REISNER and MICHAEL KIDD

Appeal 2019-000775
Application 14/508,214
Technology Center 2400

Before CARL W. WHITEHEAD JR., MICHAEL J. STRAUSS, and
NABEEL U. KHAN, Administrative Patent Judges.
KHAN, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE

Pursuant to 35 U.S.C. § 134(a), Appellant appeals from the
Examiner’s decision to reject claims 1–3, 5–13, and 15–23.1 We have
jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42(a). Appellant identifies Disney Enterprises, Inc., as the real
party in interest. Appeal Br. 2.
Appeal 2019-000775
Application 14/508,214
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CLAIMED SUBJECT MATTER
According to Appellant, the invention relates to:
A method including encoding a video program into a
plurality of video streams, each of the plurality of video streams
being encoded at a corresponding one of a plurality of bitrates;
providing, to a plurality of viewing clients, an option to select
one of the plurality of video streams; determining a streaming
capacity of each of the viewing clients; and determining an
improved plurality of bitrates based on streaming capacities of
the plurality of viewing clients.
Spec., Abstr.
Claim 12, reproduced below, is illustrative of the claimed subject
matter:
1. A method comprising:
encoding a video program into a first plurality of video
streams, each of the first plurality of video streams being
encoded at a corresponding one of a first plurality of bitrates;
generating a first alternate video stream at a first alternate
bitrate that is not one of the first plurality of bitrates at which the
first plurality of video streams are encoded, wherein the first
alternate video stream at the first alternate bitrate is generated
based on one of the first plurality of video streams padded with
additional data after the one of the first plurality of video streams
has been encoded;
providing, to a plurality of viewing clients, an option to
select one of the first plurality of video streams or the first
alternate video stream at the first alternate bitrate;
receiving, by an optimization logic, a streaming capacity
of each of the plurality of viewing clients, wherein the streaming
capacity of each of the plurality of viewing clients is based on a

2 Appellant argues independent claims 1, 8, 19, 27, 33, 34, and 35 together
as a group. See Appeal Br. 19–35. We select claim 1 as representative of
these claims, pursuant to our authority under 37 C.F.R. § 41.37(c)(1)(iv).
Appeal 2019-000775
Application 14/508,214
3
selection of one of the first plurality of video streams or the first
alternate video stream at the first alternate bitrate; and
determining, by the optimization logic, a second plurality
of bitrates based on at least one selection of the first alternate
stream at the first alternate bitrate by the plurality of viewing
clients.

REFERENCES
The Examiner relies upon the following prior art:
Name Reference Date
Shimizu US 2006/0168104 A1 July 27, 2006
Nilsson US 7,428,244 B2 Sept. 23, 2008
Ganesan US 2011/0122939 A1 May 26, 2011
Biderman US 8,099,473 B2 Jan. 17, 2012
Soroushian US 8,818,171 B2 Aug. 26, 2014
REJECTIONS3
1. Claims 1–3, 5, 6, 8–13, 15, 16, and 18–23 stand rejected under
35 U.S.C. § 103(a) as unpatentable over Soroushian, Biderman, Nilsson, and
Ganesan. Final Act. 3–55.
2. Claims 7 and 17 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Soroushian, Biderman, Nilsson, Ganesan, and Shimizu.
Final Act. 55–57.
OPINION
Claim 1 recites “determining, by the optimization logic, a second
plurality of bitrates based on at least one selection of the first alternate
stream at the first alternate bitrate by the plurality of viewing clients.” The

3 The Examiner withdrew the 35 U.S.C. § 101 patent eligibility rejection of
claims 1–3, 5–13 and 15–22. See Ans. 2, 3.
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Application 14/508,214
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Examiner relies on several references as teaching this limitation. For
example, the Examiner cites Nilsson’s control unit that “periodically makes
a decision as to any changes to the bit rates to be employed by each layer
and send control signals to the transcoder control inputs to adjust, if
necessary, the bit rate in one or more layers.” Final Act. 10 (emphasis
omitted) (citing Nilsson, 3:33–39). The Examiner also relies on Biderman’s
disclosure of a client selecting a first stream from a variant playlist and then
selecting an alternative media playlist that is streamed at a higher bitrate
than the first bitrate if the alternative is better. Ans. 57 (citing Biderman,
Fig. 9A). The Examiner further relies on Soroushian’s adaptive bitrate
streaming system, which according to the Examiner, allows the viewing
client to select an initial stream at a first bitrate, and when streaming
conditions change or deteriorate, switches to a lower bitrate which fits better
with the new streaming conditions. Ans. 59 (citing Soroushian 4:23–26,
6:21–28, 8:34–47, Fig. 5). Finally, the Examiner relies on Ganesan as
disclosing that when a user wishes to skip certain sections of media content,
for example, advertisements, the media content will be encoded with
different bitrates. Ans. 55 (citing Ganesan ¶ 50).
Appellant contends that none of the aforementioned references teach
“determining . . . a second plurality of bitrates based on at least one selection
of the first alternate stream at the first alternate bitrate by the plurality of
viewing clients.” Essentially, Appellant argues that the selection of an
alternative bitrate identified by the Examiner in each of these references
does not provide a basis for a determination of a second plurality of bitrates.
Appellant argues that the bitrates are determined prior to the selection of an
alternative bitrate for both Ganesan and Biderman. See Reply Br. 4, 5
Appeal 2019-000775
Application 14/508,214
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(arguing, that in Ganesan, the bitrates are determined prior to the selection of
a segment of media and, that in Biderman, the bitrates for the playlists are
already determined before they are provided.)
Appellant’s arguments are persuasive of reversible Examiner error.
Nilsson, for example, teaches that a decision to change bitrates is based on
“current bit-rate capacity available for each of the terminals” rather than
being based on the selection of an alternative bitrate by the terminal or user.
Nilsson 3:35–36. Soroushian teaches an adaptive bitrate streaming system
where a playback device is able to stream video at the highest quality that
can be supported by the device’s network connection while also being able
to screen video at a lower maximum bitrate if streaming conditions
deteriorate. Soroushian 6:21–28. However, Soroushian does not teach that
a second plurality of bitrates are determined based on a selection of an
alternative bitrate by the playback device.
Similarly, we do not find that Biderman’s client device that selects an
alternative media playlist from the variant playlist that is streamed at a
higher bitrate teaches a second plurality of bitrates that are determined based
on the selection of the alternative media playlist streamed at the higher
bitrate.
Finally, Ganesan discloses that, if a user desires to skip to a certain
point in the media content, the device may immediately retrieve the
appropriate media content segments at the lowest bitrate to enable near
instant playback of the media content. Ganesan ¶ 50. Once the switch is
made to the lowest bitrate, however, Ganesan does not disclose that a second
plurality of bitrates is determined based on this switch to the lowest
bitrate. Ganesan also discloses that media segments are encoded at a first
Appeal 2019-000775
Application 14/508,214
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bitrate and at a second bitrate, and that the bitrate at which the media is
streamed (either the first or the second bitrate) is determined by the network
bandwidth available to the device. See Ans. 55-56 (citing Ganesan, Claim
1). Here, we agree with Appellant that both of these first and second bitrates
are pre-determined and the selection of which to use is determined by
bandwidth rather than by a selection of an alternate bitrate by the user.
The Examiner rejects each of independent claims 1, 11, and 22 based
on the same findings which we find are not supported by the cited art for the
reasons summarized above. Therefore, we do not sustain the Examiner’s
rejection of independent claims 1, 11, and 22 and of each of the remaining
dependent claims. See Final Act. 4–10, 25–32, 47–54.

DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–3, 5, 6,
8–13, 15,
16, 18–23
103 Soroushian,
Biderman, Nilsson,
Ganesan
1–3, 5, 6,
8–13, 15,
16, 18–23
7, 17 103 Soroushian,
Biderman, Nilsson,
Ganesan, Shimizu
7, 17
Overall
Outcome
1–3, 5–13,
15–23

REVERSED