ERICSSON TELEVISION INC.

Patent Trials and Appeals Board

May 12, 2020

14255029 - (D) (P.T.A.B. May. 12, 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.
14/255,029 04/17/2014 Jennifer Ann Reynolds P42553-US1 4152
132398 7590 05/12/2020
Clairvolex Inc.
161 S San Antonio Road, Suite 10
Los Altos, CA 94022
EXAMINER
MANDEL, MONICA A
ART UNIT PAPER NUMBER
3621
NOTIFICATION DATE DELIVERY MODE
05/12/2020 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):
elofdocket@clairvolex.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte JENNIFER ANN REYNOLDS
__________________

Appeal 2019-005892
Application 14/255,029
Technology Center 3600
____________________

Before JAMES P. CALVE, BRETT C. MARTIN, and
MICHAEL J. FITZPATRICK, Administrative Patent Judges.

CALVE, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the decision
of the Examiner to reject claims 25–29, which are all the pending claims.
See Appeal Br. 1. Claims 1–24 are cancelled. See id. at 22 (Claims App.).
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant
identifies Ericsson AB as the real party in interest. Appeal Br. 1.
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CLAIMED SUBJECT MATTER
Claims 25 and 28 are independent. Claim 25 is reproduced below.
25. An advertising server comprising:
an input interface configured to receive a manifest
associated with a video stream;
an output interface configured to output the video stream
into a delivery network;
an adaptive streaming circuit configured to vary a
delivery bitrate of the video stream based on network
conditions in the delivery network;
a bit rate monitor configured to monitor the delivery
bitrate of the video stream in the delivery network;
an advertisement database;
a processor coupled to a non-transitory memory that
stores control instructions, wherein the processor executes the
control instructions such that the advertising server is
configured to:
obtain a minimum bitrate threshold for a next
advertisement in the manifest;
receive, from the bit rate monitor, the delivery
bitrate of the video stream in the delivery network;
determine whether the delivery bitrate of the video
stream has fallen below the minimum bitrate threshold of the
next advertisement in the manifest;
based on the determination that the delivery bitrate
of the video stream has not fallen below the minimum bitrate
threshold of the next advertisement:
stream the next advertisement out the output
interface at a scheduled time;
based on the determination that the delivery bitrate
of the video stream has fallen below the minimum bitrate
threshold of the next advertisement:
search the advertisement database in an
attempt to identify a replacement advertisement having a
minimum bitrate threshold lower than or equal to the delivery
bitrate;
determine whether the replacement
advertisement was identified in the advertisement database;
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based on the determination that the
replacement advertisement was not identified in the
advertisement database, stream the next advertisement out the
output interface at the scheduled time; and
based on the determination that the
replacement advertisement was identified in the advertisement
database, replace the next advertisement in the manifest with
the replacement advertisement, and stream the replacement
advertisement out the output interface at the scheduled time;
and,
wherein the input interface is connected to the processor
and the adaptive streaming circuit, wherein the adaptive
streaming circuit is connected to the input interface, the
processor and the bitrate monitor, wherein the bitrate monitor is
connected to the adaptive streaming circuit, the processor and
the output interface, and wherein the advertisement database is
connected to the processor and the output interface.

Appeal Br. 22–23 (Claims App.).
REJECTIONS
Claim 28 is rejected under 35 U.S.C. § 112(b) for indefiniteness.
Claims 25–29 are rejected as directed to a judicial exception to
35 U.S.C. § 101.
Claims 25–29 are rejected under 35 U.S.C. § 103 as unpatentable over
McHugh (US 2013/0091249 A1, pub. Apr. 11, 2013), Macinnis (US 2014/
0344443 A1, pub. Nov. 20, 2014), and Chan (US 2001/0042006 A1, pub.
Nov. 15, 2001).
ANALYSIS
Claim 28 Rejected for Indefiniteness
The Examiner determines that claim 28 is indefinite because it recites
“the next advertisement” whereas the Specification describes a “replacement
advertisement” that should be presented. Final Act. 8–9 (citing Spec. ¶ 6).
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Appellant agrees with the Examiner’s determination and points out
that Appellant filed a Response to the Final Office Action to replace “next
advertisement” with “replacement advertisement” in the relevant portion of
claim 28. Appeal Br. 7–8. The Examiner denied entry of the amendment.
See Adv. Action, mailed Dec. 6, 2018. Appellant requests that the Examiner
enter an Examiner’s Amendment to amend claim 28 if necessary. Id. at 8.
Thus, we sustain the rejection of claim 28 for indefiniteness.
Patent Eligibility of Claims 25–29
Appellant argues the claims as a group. Appeal Br. 8–15. We select
claim 25 as representative. See 37 C.F.R. § 41.37(c)(1)(iv).
Examiner’s Findings and Determination
The Examiner determines claim 25 recites the idea of formatting an
advertisement selection to fit resources, which is an “idea of itself” and a
method of organizing human activity for an advertisement selection process.
Final Act. 4; Ans. 3–4. The Examiner determines that seeking to replace an
advertisement with more suitable ones that fit the minimum bitrate threshold
of the advertisement does not impose a meaningful limit on the abstract idea
but applies it to a type of environment (network conditions), which is similar
to an instruction to apply the exception on a generic computer. Ans. 4.
Appellant’s Contentions
Appellant argues that the Examiner’s citation of court decisions does
not consider that the claims exchange advertisements with different quality
requirements based on network conditions to solve a particular technical
problem. Appeal Br. 10–11 (citing Spec. ¶¶ 3, 4). Appellant also argues
that the Examiner has not shown the claimed elements are well-understood,
routine, and conventional as required. Id. at 12–14.
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Applicable Legal Principles
Section 101 of the Patent Act states:
Whoever invents or discovers any new and useful process,
machine, manufacture, or composition of matter, or any new
and useful improvement thereof, may obtain a patent therefor,
subject to the conditions and requirements of this title.
35 U.S.C. § 101. This provision contains an implicit exception: “Laws of
nature, natural phenomena, and abstract ideas are not patentable.” Alice
Corp. v. CLS Bank Int’l, 573 U.S. 208, 216 (2014).
To distinguish patents that claim laws of nature, natural phenomena,
and abstract ideas from those that claim patent-eligible applications, we first
determine whether the claims are directed to a patent-ineligible concept. Id.
at 217. If they are, we consider the elements of each claim, individually and
“as an ordered combination,” to determine if additional elements “‘transform
the nature of the claim’ into a patent-eligible application” as an “inventive
concept” sufficient to ensure the claims in practice amount to significantly
more than a patent on the ineligible concept itself. See id. at 217–18.
The USPTO has issued guidance about this framework. 2019 Revised
Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019)
(“Revised Guidance”). Under the Revised Guidance, to determine whether a
claim is “directed to” an abstract idea, we evaluate whether the claim recites
(1) any judicial exceptions, including certain groupings of abstract ideas
listed in the Revised Guidance (i.e., mathematical concepts, certain methods
of organizing human activities such as a fundamental economic practice, or
mental processes); and (2) 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) (“MPEP”). Id. at 52–55.
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Only if a claim (1) recites a judicial exception and also (2) does not
integrate that exception into a practical application, do we then consider
whether the claim (3) adds a specific limitation beyond the judicial
exception that is 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. Id. at 56.
Step 1: Is Claim 25 Within a Statutory Category?
Claim 25 recites “[a]n advertising server” which is within a statutory
category of 35 U.S.C. § 101, namely, a machine.
Step 2A, Prong 1: Does Claim 25 Recite a Judicial Exception?
We agree with the Examiner that claim 25 recites certain methods of
organizing human activity as commercial interactions (advertising activities)
(see Ans. 3–4). See Revised Guidance, 84 Fed. Reg. at 52.
We also find nothing improper with the Examiner’s citation to court
decisions related to the patent-eligibility of the claims at issue. Although
Examiners now formulate patent-eligibility rejections using categories set
forth in the Revised Guidance, those categories represent the extraction and
synthesis of key concepts identified by the courts as abstract ideas. See id.
Claim 25 recites the abstract idea as a processor that executes control
instructions so the advertising server is configured to “obtain a minimum
bitrate threshold for a next advertisement in the manifest;” “receive, from
the bit rate monitor, the delivery bitrate of the video stream in the delivery
network;” and “determine whether the delivery bitrate of the video stream
has fallen below the minimum bitrate threshold of the next advertisement in
the manifest.” Appeal Br. 22 (Claims App.).
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Other aspects of this concept are “based on the determination that the
delivery bitrate of the video stream has not fallen below the minimum bitrate
threshold of the next advertisement: stream the next advertisement out the
output interface at a scheduled time” or “based on a determination that the
delivery bitrate of the video stream has fallen below the minimum bitrate
threshold of the next advertisement: search the advertisement database in an
attempt to identify a replacement advertisement having a minimum bitrate
threshold lower than or equal to the delivery bitrate” and “stream the next
advertisement out the output interface at the scheduled time” if “the
replacement advertisement was not identified in the advertisement database”
or “replace the next advertisement in the manifest with the replacement
advertisement, and stream the replacement advertisement out the output
interface at the scheduled time” if “the replacement advertisement was
identified in the advertisement database.” Appeal Br. 22–23 (Claims App.).
The claimed server tries to optimize the advertisements streamed over
a network by streaming advertisements whose minimum bitrate threshold is
within the network delivery bitrate. If the minimum bitrate threshold of the
“next advertisement” in the manifest is within (i.e., at or below) the network
delivery bitrate, the server streams the next advertisement at the scheduled
time as claimed. See Spec. ¶ 24. However, if the delivery bitrate is less than
the minimum bitrate threshold of the next advertisement, the server attempts
to identify a “replacement advertisement” whose minimum bitrate threshold
is less than or equal to the delivery bitrate and then streams a replacement
advertisement if one is found because it works better at the lower bitrate.
See id. ¶ 25. Only if a suitable replacement advertisement is not found does
the server stream the next advertisement at the lower delivery bitrate. Id.
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Appellant asserts that the claims overcome a problem in adaptive
bitrate streaming systems that stream videos at lower bitrates when network
conditions deteriorate lowering the quality of the videos. Appeal Br. 10–11
(citing Spec. ¶¶ 3, 4). To overcome this problem, the server tries to find and
stream replacement advertisements with a lower minimum bitrate threshold
than the network delivery bitrate. Id.; Spec. ¶¶ 2–4, 25. If the server does
not find such an advertisement, it streams the next advertisement although
its minimum bitrate threshold exceeds the delivery bitrate. Spec. ¶ 25.
Claim 25 implements this concept to organize advertising activity by
measuring the delivery bitrate of a network in a known manner and selecting
an advertisement whose minimum bitrate threshold falls within the delivery
bitrate. If the “next advertisement” scheduled for streaming has a minimum
bitrate threshold at or below the current delivery bitrate of the network, the
advertising server streams the next advertisement because the lower delivery
bitrate will not adversely affect video quality of the next advertisement. If
the next advertisement has a minimum bitrate threshold above the delivery
bitrate, the advertising server tries to replace the next advertisement with a
replacement advertisement whose minimum bitrate threshold is equal to or
less than the lower delivery bitrate. Id. Otherwise, the server streams a next
advertisement at a lower delivery bitrate just as the prior art does. See id.
Claim 25 simply tries to match the minimum bitrate threshold of
advertisements to the network delivery bitrate. If the delivery bitrate is less
than the minimum bitrate threshold of a next advertisement, the server seeks
a replacement advertisement whose minimum bitrate threshold is within the
delivery bitrate so it can be streamed at the slower bitrate without affecting
its quality. It streams a slower bitrate advertisement if one is available.
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Claim 25 does not recite any technical improvement to computers or
servers. The interfaces, servers, network, processor, and database are recited
generically as performing generic functions. The Specification describes the
elements generically as well.
Those skilled in the art will further appreciate that the functions
explained below may be implemented using hardware circuitry,
computer software, or a combination thereof. The software
may be executed by a programmed microprocessor or a general
purpose computer, using an Application Specific Integrated
Circuit (ASIC) and/or Digital Signal Processors (DSPs). It will
also be apparent that when the present invention is described as
a method, it may also be embodied in a computer processor and
a nontransitory memory coupled to the processor, wherein the
memory is encoded with one or more programs that perform the
method when executed by the processor.

Spec. ¶ 22. The adaptive streaming circuit 36 varies the delivery bitrate of
the video stream based on current network conditions. Id. ¶ 29. The bitrate
monitor 37 monitors the current delivery bitrate and reports it to processor
31, which determines if the delivery bitrate has fallen below the minimum
bitrate threshold for the next advertisement and takes appropriate action. Id.
An output interface 39 streams next or replacement advertisements. Id.
Claim 25 recites steps of optimizing a network’s bandwidth (delivery
bitrate) by trying to stream advertisements that can be streamed at or below
the network delivery bitrate. If the delivery bitrate drops, “replacement
advertisements” are streamed if they are within the lower delivery bitrate of
the network. They are lower quality videos that can be streamed at a lower
delivery bitrate. See Appeal Br. 10–11 (arguing that the claims recite an
arrangement “that exchanges advertisements having different quality
requirements based on current network conditions”); Reply Br. 4 (same).
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Claims that merely optimize a resource recite an abstract idea. See
OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1363 (Fed. Cir. 2015)
(holding claims using generic computer functions to make traditional price-
optimization methods more efficient recite an abstract idea). Here, claim 25
optimizes network bandwidth by exchanging advertisements with different
quality requirements based on current network conditions. Appeal Br. 10.
This claimed tailoring of advertising content to a network delivery
bitrate is analogous to other tailored advertising concepts determined to be
abstract ideas. Intellectual Ventures I LLC v. Capital One Bank (USA), 792
F.3d 1363, 1369–70 (Fed. Cir. 2015) held that tailoring advertising content
based on the location of an individual and the time of day during which the
advertisement content is viewed recites an abstract idea. Claim 25 similarly
recites tailoring of advertising content streamed to an individual based on the
individual’s location on a network having a particular bitrate delivery and/or
the time of day as it relates to the current bitrate delivery of the network.
As our reviewing court has held in an analogous context:
This court, however, has held that “customizing information
based on . . . information known about the user” is an abstract
idea. Intellectual Ventures I LLC v. Capital One Bank (USA),
792 F.3d 1363, 1369 (Fed. Cir. 2015). The court in the
Intellectual Ventures I case explained that tailoring of content
based on information about the user—such as where the user
lives or what time of day the user views the content—is an
abstract idea that is as old as providing different newspaper
inserts for different neighborhoods. Id.

Affinity Labs of Texas LLC v. Amazon.com Inc., 838 F.3d 1266, 1271 (Fed.
Cir. 2016). Claim 25 sends different advertisements (next or replacement)
based on a user’s network location and time that affects the delivery bitrate.
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Claim 25 recites the abstract idea of organizing human activity for
advertising activities based on available resources by fitting advertisements
into available network resources as the Examiner determines. See Final Act.
4; Ans. 3–4 (“The instant claims recite the abstract idea of formatting
advertisement selection to fit resources which is a type of method of
organizing human activity because it is a type of advertisement selection
process.”). Our reviewing court recently held similar activity involving
advertising data in a similar context to be an abstract idea:
In short, by dedicating a section of the computer’s memory to
advertising data, the claimed invention ensures memory is
available for at least some advertising data. This does not,
however, improve the functionality of the computer itself.
Even if we accept Customedia’s assertions, the claimed
invention merely improves the abstract concept of delivering
targeted advertising using a computer only as a tool. This is not
what the Supreme Court meant by improving the functioning of
the computer itself nor is it consistent with our precedent
applying this concept.

Customedia Techs., LLC v. Dish Network Corp., 951 F.3d 1359, 1363 (Fed.
Cir. 2020). The claims did not enable computers to operate more quickly or
efficiently, or solve any technological problem because:
The only improvements identified in the specification are
generic speed and efficiency improvements inherent in applying
the use of a computer to any task. Therefore, the claimed
invention is at most an improvement to the abstract concept of
targeted advertising wherein a computer is merely used as a
tool. This is not an improvement in the functioning of the
computer itself.

Id. at 1365 (“They merely recite reserving memory to ensure storage space is
available for at least some advertising data.”).
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Here, claim 25 does not make computers or networks work faster or
more efficiently. In fact, it streams advertisements at slower bitrates that
comport with the current network delivery bitrate without any improvement
to databases, networks, adaptive streaming circuits, servers, or the like.
Similarly, a claim to “controlling the routing of a stream of packets in
response to selection signals received from the users” to direct a portion of
the routing path taken by the stream of packets from one designated group of
intermediate computers to the user in response to one or more signals from
the user selecting the stream “fails to indicate how the claims are directed to
a scalable network architecture that itself leads to an improvement in the
functioning of the system.” Two-Way Media Ltd. v. Comcast Cable
Commc’ns, LLC, 874 F.3d 1329, 1338 (Fed. Cir. 2017).
Claims to controlling access to, or limiting permission to, resources
using a security access manager, decision entity, interception module, and
access controller recite the “bare abstract idea [of] controlling access to
resources by receiving a request and determining if the request for access
should be granted.” Ericsson Inc. v. TCL Commc’n Tech. Holdings Ltd.,
No. 2018-2003, 2020 WL 1856498, at *6 (Fed. Cir. Apr. 14, 2020); id. at *7
(“Controlling access to resources is exactly the sort of process that ‘can be
performed in the human mind, or by a human using pen and paper,’ which
we have repeatedly found unpatentable.”) (citation omitted)).
The court rejected Ericsson’s argument that the claimed process of
requesting and controlling access “is a specific technique for improving
computer performance” because “[t]he claims are silent as to how access is
controlled. They merely make generic functional recitations that requests
are made and then granted.” Id. at *8.
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The court emphasized that “[m]erely claiming ‘those functions in
general terms, without limiting them to technical means for performing the
functions that are arguably an advance,’ does not make a claim eligible at
step one.” Id. (citation omitted).
The decision in Uniloc USA, Inc. v. ADP, LLC, 772 F. App’x 890
(Fed. Cir. 2019) illustrates the distinction. There, the claims to methods for
centralized distribution of software recited a particular way to achieve this
advance by “preparing a file packet associated with the application program
and including a segment configured to initiate registration operations for the
application program at the target on-demand server.” Id. at 896–97. The
claimed use of file packets with segments configured to initiate centralized
on-demand registration of an application from an application server recited a
particular improvement in how software distribution and installation may be
provided from a single network management server, which was an advance
and not an abstract idea. Id. at 897.
Here, claim 25 recites an “advertisement database” with no particular
structure recited. The processor searches the database to try to identify a
replacement advertisement. The Specification also describes advertisement
database 39 generically as being searched by the processor to try to identify
a suitable replacement advertisement. See Spec. ¶¶ 29. This arrangement
may optimize the network bitrate delivery if the database has a “replacement
advertisement” with a lower minimum bitrate threshold to stream when the
network bitrate delivery is below the minimum bitrate threshold of a higher
bitrate quality “next advertisement.” However, claim 25 does not require a
next or a replacement advertisement to be streamed at any particular bitrate.
The next or replacement advertisement is streamed “at a scheduled time.”
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The “input interface” is “configured to receive a manifest associated
with a video stream.” The “output interface” is “configured to output the
video stream into a delivery network.” The “adaptive streaming circuit” is
“configured to vary a delivery bitrate of the video stream based on network
conditions in the delivery network.” The “bit rate monitor” is “configured to
monitor the delivery bitrate of the video stream in the delivery network.”
Claim 25, Claims App. 22. These components are described generically as
well. Spec. ¶ 29. Adaptive bitrate streaming was known in the art. Id. ¶ 2.
Claim 25 does not recite a particular streaming technology or even variable
bitrate streaming of the ads. See Ericsson, at *8 (“Merely claiming ‘those
functions in general terms, without limiting them to technical means for
performing the functions that are arguably an advance,’ does not make a
claim eligible at step one.”) (citation omitted).
Appellant’s argument that the analysis in Enfish, LLC v. Microsoft
Corp., 822 F.3d 1327 (Fed. Cir. 2016) demonstrates that claim 25 recites
patent-eligible subject matter is not persuasive. Appeal Br. 10. In Enfish,
the claimed data storage and retrieval system recited more than a form of
storing tabular data because the “means for configuring” algorithm provided
a flexible, self-referential table that stored data and improved upon prior art
information search and retrieval systems. Enfish, 822 F.3d at 1336–37. The
self-referential table did not require programmers to preconfigure a structure
for users to enter data as in conventional database structures and therefore, it
provided flexibility, faster search times, and smaller memory requirements
that improved existing technology over conventional databases. Id. at 1337.
Accordingly, we determine that claim 25 recites an abstract idea of
certain methods of organizing human activity identified above.
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Step 2A, Prong Two: Integration into a Practical Application
We next consider whether claim 25 recites additional elements that
integrate the abstract idea into a practical application. Revised Guidance, 84
Fed. Reg. at 54 (Revised Step 2A, Prong Two). Appellant argues that the
“character” of the claimed invention provides an arrangement that exchanges
advertisements with different quality requirements based on current network
conditions, and this arrangement solves a technical problem described in the
Specification. Appeal Br. 10–11; Reply Br. 5–6. Appellant asserts that
existing methods of adaptive bitrate streaming result in lower quality videos
when they stream advertisements that require higher video quality at lower
bitrates due to network constraints, thereby rendering the advertisements
ineffective or illegible. Appeal Br. 10–11 (citing Spec. ¶¶ 3–4); Reply Br.
5–6 (citing Spec. ¶¶ 3–4). Appellant argues that the claims provide quality
adaptive bitrate-dynamic advertisements in a video stream that exchange
advertisements having different quality requirements based on current
network conditions. Appeal Br. 10–11; Reply Br. 5–6.
This argument is not persuasive because claim 25 does not recite a
particular technique for performing this abstract idea. Indeed, claim 25 does
not even require a next advertisement or a replacement advertisement to be
streamed at a minimum bitrate threshold, a network delivery bitrate, or some
other variable bitrate. Advertisements are streamed “at a scheduled time.”
Thus, we are not persuaded that claim 25 recites a technical solution
to a technical problem or imposes a meaningful limit on the abstract idea.
See Reply Br. 5; see also Ericsson, 2020 WL 1856498, at *5 (holding that
the specification must always yield to the claim language when identifying
the true focus of a claim). There is no quality requirement to stream the ads.
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The dynamic presentation of customized, pre-created advertisements,
without more, is insufficient to integrate the abstract idea recited in claim 25
into a practical application. See Intellectual Ventures I LLC v. Capital One
Bank (USA), 792 F.3d at 1370 (choosing between and presenting a user with
a pre-created advertisement based on a category determination of the user is
not sufficient to make the abstract idea patent-eligible).
Furthermore, customized network streaming, without more, does not
provide a technical improvement to make the abstract idea patent eligible.
Features such as network streaming and a customized user
interface do not convert the abstract idea of delivering media
content to a handheld electronic device into a concrete solution
to a problem. The features set forth in the claims are described
and claimed generically rather than with the specificity
necessary to show how those components provide a concrete
solution to the problem addressed by the patent.

Affinity Labs of Texas, 838 F.3d at 1271 (“In sum, the patent in this case is
not directed to the solution of a ‘technological problem,’ Alice, 134 S.Ct. at
2358, nor is it directed to an improvement in computer or network
functionality . . . . It claims the general concept of streaming user-selected
content to a portable device.”).
Appellant does not contend to have invented “an input interface,” “an
output interface,” “an adaptive streaming circuit,” “a bitrate monitory,” “an
advertisement database,” or “a processor” as recited in claim 25. Nor does
Appellant assert that the claimed advertising server and these components
are configured or arranged in a particularly innovative way, or that they use
software programming that provides a technical improvement to networks or
to adaptive bitrate streaming. They select advertisements with a particular
minimum bitrate threshold and stream them at a scheduled time.
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The Specification describes these components generically. Spec. ¶ 22.
Adaptive bitrate streaming has been used to modify video quality to best suit
changing network conditions. Id. ¶ 2. As network conditions deteriorate, a
lower streaming bitrate is selected. Id. It formats streaming content to fit
available network resources as the Examiner finds. See Ans. 3–4. Various
methods of modifying an adaptive bitrate stream may exist (see Spec. ¶ 2),
but claim 25 recites no particular method of adaptive bitrate streaming. It
simply selects advertisements with a particular minimum bitrate threshold
and streams the advertisements without specifying a bitrate or technique.
Mere recitation of concrete, tangible components such as a processor
is not sufficient to make abstract ideas performed on or with that processor
patent-eligible. Alice, 573 U.S. at 223 (“[T]he mere recitation of a generic
computer cannot transform a patent-ineligible abstract idea into a patent-
eligible invention.”). Here, the focus of claim 25 is not on a technological
advance in processors, servers, databases, or variable bitrate streamers.
Rather, the focus is on performing an abstract idea for which computers are
invoked merely as a tool. See Enfish, 822 F.3d at 1335–36.
None of the “input interface,” “output interface,” “adaptive streaming
circuit,” “bitrate monitor,” “advertisement database,” or “processor” reflects
any improvement in the functioning of a computer or another technology or
technical field. Revised Guidance, 84 Fed. Reg. at 55. Nor does claim 25
implement the abstract idea in conjunction with a particular machine that is
integral to the claim. Id. These generic components and generic functions
do not transform or reduce a particular article to a different state or thing.
Id. Nor do these components apply the abstract idea in a meaningful way
beyond generally linking it to a particular technological environment. Id.
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The fact that the processor is configured to select advertisements with
a minimum bitrate threshold within the delivery bitrate does not integrate the
abstract idea into a practical application. See Intellectual Ventures I LLC v.
Capital One Bank (USA), 792 F.3d at 1371 (“Requiring the use of a
‘software’ ‘brain’ ‘tasked with tailoring information and providing it to the
user’ provides no additional limitation beyond applying an abstract idea,
restricted to the Internet, on a generic computer.”).
Here, Appellant’s asserted “technical solution” to a technical problem
of fluctuating network bitrate thresholds uses the abstract idea identified
above with generic computer and network components as tools. If a delivery
bitrate of the network falls below the minimum bitrate required to stream an
advertisement, the server tries to select another advertisement with a lower
minimum bitrate threshold and streams the advertisement if one is found.
“It has been clear since Alice that a claimed invention’s use of the
ineligible concept to which it is directed cannot supply the inventive concept
that renders the invention ‘significantly more’ than that ineligible concept.”
BSG Tech LLC v. Buyseasons, Inc., 899 F.3d 1281, 1290 (Fed. Cir. 2018);
see id. at 1291 (“As a matter of law, narrowing or reformulating an abstract
idea does not add ‘significantly more’ to it.”); see also RecogniCorp, LLC v.
Nintendo Co., 855 F.3d 1322, 1327 (Fed. Cir. 2017) (“Adding one abstract
idea (math) to another abstract idea (encoding and decoding) does not render
the claim non-abstract.”); Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d
1138, 1151 (Fed. Cir. 2016) (“But, a claim for a new abstract idea is still an
abstract idea.”); Versata Dev. Grp., Inc. v. SAP Am., Inc., 793 F.3d 1306,
1335 (Fed. Cir. 2015) (holding claims that improved an abstract idea but did
not recite the supposed computer improvements were not patent eligible).
Appeal 2019-005892
Application 14/255,029

19
The “interface[s],” “adaptive streaming circuit,” “bit rate monitor,”
“advertisement database,” and “processor” are generic components used to
receive, store, and stream advertisements. They provide an environment to
implement the abstract idea but they do not alter its character as an abstract
idea. See Ericsson, 2020 WL 1856498, at *6 (holding that “security access
manager,” “decision entity,” and “access controller” were part of “an access
controller for controlling access” to resources, which is an abstract idea); In
re TLI Commc’ns LLC Patent Litig., 823 F.3d 607, 611 (Fed. Cir. 2016)
(holding that a telephone and server “merely provide a generic environment
in which to carry out the abstract idea of classifying and storing digital
images in an organized manner.”); Mortg. Grader, Inc. v. First Choice Loan
Serv. Inc., 811 F.3d 1314, 1324–25 (Fed. Cir. 2016) (holding claims reciting
a generic “interface,” “network,” and a “database” recited an abstract idea);
Intellectual Ventures I LLC v. Capital One Bank (USA), 792 F.3d at 1368
(holding that the claims instructed one to apply the abstract idea on generic
components such as a “database” and a “communication medium”).
Essentially, the advertising server selects and streams advertisements
whose bitrate threshold is optimized to the network delivery bitrate. If the
minimum bitrate threshold of the “next advertisement” is within the network
delivery bitrate, the server streams the “next advertisement.” If the network
delivery bitrate is below the minimum bitrate of the “next advertisement,”
the server streams a “replacement advertisement” whose minimum bitrate is
less than or equal to the network delivery bitrate so its video quality is not
diminished. The advertising server tries to select and stream advertisements
whose minimum bitrate threshold is compatible with the current network
delivery bitrate, but claim 25 does not recite any particular way of doing so.
Appeal 2019-005892
Application 14/255,029

20
The Specification and Appellant’s contentions make clear that the key
feature of the claims is selecting and streaming advertisements whose bitrate
threshold is compatible with the network delivery bitrate. Spec. ¶¶ 2–4. It
“exchanges advertisements having different quality requirements based on
current network conditions.” Id. ¶ 4 (“Before instructing a video player to
play an advertisement, the apparatus checks the network quality to confirm
the minimum bitrate requirement of the advertisement is met.”). Reciting
this concept at a high level of generality with generic computer components
and no particular way to stream advertisements at particular bitrates or even
quality does not integrate the abstract idea into a practical application. See
OIP Techs., 788 F.3d at 1363 (holding the key distinguishing feature of the
claims is the ability to automate or otherwise make more efficient traditional
price-optimization methods but using a computer to perform routine tasks
more quickly or accurately does not make the claims patent eligible).
Selecting and streaming advertisements whose minimum bitrate is
within a network delivery bitrate is insufficient to integrate the abstract idea
into a practical application. See Voit Techs., LLC v. Del-Ton, Inc., 757 F.
App’x 1000, 1003 (Fed. Cir. 2019) (“Voit fails to explain how employing
different formats, as claimed, improves compression techniques or the
functioning of the computer. Instead, the specification demonstrates that the
Asserted Claims are directed to use of generic computer components
performing conventional compression techniques to carry out the claimed
invention.”). Even though the claims in Voit recited advanced image data
compression techniques that provided more rapid transmission of higher
resolution digital images (features much more specific than the generic
features recited in claim 25 here), the claims were not patent eligible.
Appeal 2019-005892
Application 14/255,029

21
Although Voit alleges the method of the ’412 patent “improves
the efficiency of transmitting” high resolution data, Appellant’s
Br. 10, we have recognized that claims directed to “improved
speed or efficiency inherent with applying the abstract idea on a
computer” are insufficient to demonstrate an inventive concept
. . . . Moreover, Voit has to do more than simply restate the
claim limitations and assert that the claims are directed to a
technological improvement without an explanation of the nature
of that improvement. . . . General statements of “advanced
image data compression” or faster communications will not
suffice where it is unclear how the different compression format
claim limitations actually achieve the alleged improvements.

Id. at 1003–04 (citations omitted).
Here, Appellant essentially restates the abstract idea and asserts that
claim 25 is directed to a technological improvement without explaining the
nature of the improvement apart from the abstract idea recited in claim 25.
As discussed above, the abstract idea recited in a claim cannot be invoked to
demonstrate significantly more than the abstract idea itself.
There is no indication the claimed adaptive bitrate streaming improves
software or hardware function. The control instructions “obtain,” “receive,”
“determine,” “stream,” and “search the advertisement database” at a high
level without any advances in software or hardware functionality. Higher
minimum bitrate threshold advertisements cannot be streamed over lower
bitrate delivery networks without reducing video quality. Where the bulk of
the claim recites an abstract idea and the remaining limitations provide only
necessary antecedent and subsequent components, the claim’s character as a
whole is the abstract idea. See Ericsson, 2020 WL 1856498, at *7.
Accordingly, we determine that claim 25 does not include additional
elements that integrate the abstract idea into a practical application.
Appeal 2019-005892
Application 14/255,029

22
Step 2B: Does Claim 25 Include an Inventive Concept?
We next consider whether claim 25 recites elements, individually, or
as an ordered combination, that provide an inventive concept. Alice, 573
U.S. at 217–18. The second step of the Alice test is satisfied when the claim
limitations involve more than performance of well-understood, routine, and
conventional activities previously known to the industry. Berkheimer v. HP
Inc., 881 F.3d 1360, 1367 (Fed. Cir. 2018); see Revised Guidance, 84 Fed.
Reg. at 56 (explaining that the second step of the Alice analysis considers
whether a claim adds a specific limitation beyond a judicial exception that is
not “well-understood, routine, conventional” activity in the field).
Individually, the limitations of claim 25 recite an abstract idea that is
implemented on generic components that perform their generic functions to
receive, store, and stream data such as advertisements. The Specification
describes the components in a way that indicates they are well-understood,
routine, and conventional. See Spec. ¶¶ 2–4, 22–29; Revised Guidance, 84
Fed. Reg. at 56; MPEP § 2106.05(d). Indeed, Appellant does not explain
any claimed innovation apart from the abstract idea recited in claim 25. See
Appeal Br. 12–15. The Examiner explains that courts have recognized such
computer functions as well-understood, routine, and conventional functions
when they are claimed in a generic manner as in claim 25. Ans. 4–5; see
also MPEP § 2106.05(d). The Specification describes adaptive bitrate
streaming as known in the art. Spec. ¶¶ 2–4.
Rather than stream advertisements with a minimum bitrate threshold
that is higher than the delivery bitrate, claim 25 tries to stream “replacement
advertisements” that have a lower minimum bitrate threshold, but claim 25
does not recite specifics of that streaming process or quality improvements.
Appeal 2019-005892
Application 14/255,029

23
The “ordered combination” of elements also lacks an inventive
concept. See Alice, 573 U.S. at 225; Voit, 757 F. App’x at 1004. Together,
the limitations merely recite the abstract idea of selecting and streaming
advertisements with a certain minimum bitrate threshold “at a scheduled
time.” See Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1355
(Fed. Cir. 2016) (holding that claims interpreted in light of the specification
required only off-the-shelf, conventional computer, network, and display
technology to gather, send, and present desired information and “displaying
concurrent visualization” required only readily-available displays).
Appellant argues the claims improve communications by providing
quality adaptive bitrate-dynamic advertisements in a video stream. Reply
Br. 6. However, this feature is not claimed. Nor is the quality or bitrate of
next or replacement advertisements streamed over a network claimed other
than being streamed “at a scheduled time” in some undefined manner.
None of the generic interfaces, adaptive streaming circuit, bit rate
monitor, network, database, and processor is sufficient to make claim 25
patent-eligible. See Ericsson, 2020 WL 1856498, at *9 (“Even assuming
that this collection of elements led to a more efficient way of controlling
resource access, ‘our precedent is clear that merely adding computer
functionality to increase the speed or efficiency of the process does not
confer patent eligibility on an otherwise abstract idea.”); Customedia, 951
F.3d at 1366 (“Aside from the abstract idea of delivering targeted
advertising, the claims recite only generic computer components.”).
Accordingly, we determine that the claims do not recite any elements,
individually or as an ordered combination, that provide an inventive concept
sufficient to transform the abstract idea into patent eligible subject matter.
Appeal 2019-005892
Application 14/255,029

24
Claims 25–29 Rejected over McHugh, Macinnis, and Chan
A dispositive issue is whether McHugh has a processor configured to
“obtain a minimum bitrate threshold for a next advertisement in the
manifest” in claim 25 or “obtain, from the input interface, the minimum
bitrate threshold for the next advertisement” in claim 28. The Examiner
cites paragraphs 23 and 24 of McHugh for this feature. Final Act. 15–16;
Ans. 6. Paragraphs 23 and 24 of McHugh provide in pertinent part:
[23] The adaptive streaming server 206 is configured to
determine if a congestion level within the network 208 exceeds
a predetermined threshold and when this occurs preventing the
client 202 (e.g., personal computer 202, a mobile phone 202
(shown), a tablet 202, or a HTTP capable television 202) from
requesting high bit rate segments of a content stream 203 or if
the client 202 requests high bit rate segments of the content
stream 203 then sending the corresponding lower bit rate
segments of the content stream 203.

[24] The bandwidth monitor 214 is configured to monitor a
congestion level within the network 20 (step 10). The
processing unit 218 is configured to determine if the congestion
level within the network 208 exceeds a predetermined threshold
and when this occurs is further configured to send an additional
requested segment to the client 202 where the sent additional
requested segment has a bit rate that is less than at least the first
bit rate associated with the first child manifest (step 11).

The Examiner finds that McHugh’s processing unit 210 obtains a
minimum bitrate threshold for a next advertisement when adaptive streaming
server 206 detects a network congestion level that exceeds a predetermined
threshold and sends “corresponding lower bit rate segments of the content
stream 203” rather than a high bit rate segments of content stream 203 that a
client requested. Final Act. 16 (citing McHugh ¶ 23); Ans. 6 (citing same).
Appeal 2019-005892
Application 14/255,029

25
The Examiner finds that paragraph 24 of McHugh teaches this feature
when processing unit 218 determines if the congestion level in the network
208 exceeds a predetermined threshold and sends client 202 an additional
requested segment that has a lower bit rate than the bit rate associated with
the first child manifest. Final Act. 16 (citing McHugh ¶ 24); Ans. 6 (citing
McHugh ¶ 24). The Examiner finds that “processing unit 210 obtains a
minimum bitrate threshold, namely, ‘a bit rate that is less than at least the
first bit rate of first child manifest’ for the next content in the manifest (the
additional requested segment).” Ans. 6 (citing McHugh ¶ 24).
Appellant argues that McHugh, paragraph 23, discloses sending lower
bitrate segments of a content stream to a client when the congestion level in
the network exceeds a predetermined threshold, but it does not determine or
obtain a minimum bitrate threshold for the next segment itself as required by
claim 25. Appeal Br. 17. In addition, Appellant argues that ‘[t]here is no
relation between McHugh’s use of lower bitrate segments of content stream
and claim 25’s obtain and use of minimum bitrate threshold of next content
(next advertisement).” Id. at 18; see also Reply Br. 10 (“McHugh does not
obtain or determine whether the lower bit rate content itself which is sent to
the user has a minimum bitrate threshold as required in claim 25.”).
Appellant has the better position. The Specification indicates that the
“minimum bitrate threshold” of an advertisement is a bitrate below which
the quality of the advertisement will drop, e.g., visuals will be less distinct
and small visual elements or small text will be difficult to see. See id. ¶¶ 3,
24–29. Advertisements may be marked by a content provider or manifest
creator with an indication of its minimum bitrate threshold, e.g., in metadata
in the advertisement. Id. ¶ 24.
Appeal 2019-005892
Application 14/255,029

26
The claimed system obtains a minimum bitrate threshold for a next
advertisement in a manifest and determines if the delivery bitrate of the
video stream has fallen below the minimum bitrate threshold of the next
advertisement. Id. ¶ 4. If the minimum bitrate of the next advertisement is
not met by the current network delivery bitrate (i.e., it is not at or below the
current network delivery bitrate), the system removes the next advertisement
and tries to replace it with an advertisement whose minimum bitrate is lower
than or equal to the current network delivery bitrate. Id. ¶¶ 4, 5, 25.
McHugh sends a next segment of content at a lower bit rate than the
bit rate of the first segment if the congestion level in network 208 exceeds a
predetermined threshold. Ans. 6; McHugh ¶¶ 23, 24. McHugh does not
obtain a “minimum bitrate threshold” of the next segment or determine if the
delivery bitrate of the video stream has fallen below the minimum bitrate
threshold of the next advertisement in the manifest as claimed. When the
congestion in network 208 exceeds a predetermined threshold, adaptive
streaming server 206 and processor 218 send a next/additional segment of
content stream 203 having a lower bit rate than the higher bit rate segments
that already were sent. McHugh ¶¶ 23, 24.
Sending a segment with a lower bit rate than a bit rate of a previous
segment does not obtain a minimum bitrate threshold for the next segment or
compare a minimum bitrate threshold to the delivery bitrate as claimed. See
Ans. 6; Reply Br. 14. When a drop in delivery bitrate is detected, McHugh
streams a next segment at a lower bitrate than the previous segment without
obtaining a minimum bitrate threshold of the next segment or comparing its
bitrate threshold to the delivery bitrate of the network as claimed.
Appeal 2019-005892
Application 14/255,029

27
Thus, we do not sustain the rejection of independent claims 25 and 28
or their respective dependent claims 26, 27, and 29.
CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/
Basis
Affirmed Reversed
25–29 101 Eligibility 25–29
28 112(b) Indefiniteness 28
25–29 103 McHugh,
Macinnis, Chan
25–29
Overall
Outcome
25–29
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