Ex Parte Bank et alDownload PDFPatent Trials and Appeals BoardMay 14, 201914023534 - (D) (P.T.A.B. May. 14, 2019) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 14/023,534 09/11/2013 Judith H. Bank 73109 7590 05/16/2019 Cuenot, Forsythe & Kim, LLC 20283 State Road 7 Ste. 300 Boca Raton, FL 33498 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 ATTORNEY DOCKET NO. CONFIRMATION NO. CAM920120065US2_8150-0434 3449 EXAMINER SAYOC, KRISTOFFER LS ART UNIT PAPER NUMBER 2443 NOTIFICATION DATE DELIVERY MODE 05/16/2019 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): ibmptomail@iplawpro.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JUDITH BANK et al. Appeal2018-006849 Application 14/023,534 1 Technology Center 2400 Before KEVIN F. TURNER, JOHN A. EVANS, and CATHERINE SHIANG Administrative Patent Judges. TURNER, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal under 35 U.S.C. § 134(a) from a Final Office Action dated June 14, 2017 (hereinafter "Final Act."), rejecting claims 1-12. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM-IN-PART. 1 According to Appellants, the real party in interest is IBM Corporation, the assignee of this application. Appeal Brief (hereinafter "App. Br") 1. Appeal2018-006849 Application 14/023,534 THE CLAIMED SUBJECT MATTER The claims are directed to a method for buffering portions of a media file for the purpose of playback in an order that is not chronological. Specification (hereinafter "Spec.") ,r 22. Claims 1 and 10 are independent. Claims 1 and 10, reproduced below, are illustrative of the claimed subject matter, with emphases added: 1. A method, comprising: receiving a request for a media file from a client system; determining, using a processor, a non-chronological ordering of a plurality of segments of the media file for buffering according to historical playback data for each of the plurality of segments of the media file; and sending a first segment of the media file, as specified by the non-chronological ordering of the plurality of segments, for buffering to the client system; wherein the non-chronological ordering is determined prior to sending any segment of the media file to the client system. 10. A method, comprising: including, using a processor, a reference to a media file within a Web page, wherein the media file comprises a plurality of segments; and including within the reference, a parameter indicating that segments of the media file are to be buffered in a non- chronological order. 2 Appeal2018-006849 Application 14/023,534 REJECTIONS Claims 1-3, 5, 7, and 9 are rejected under 35 U.S.C. § I02(b) as being anticipated by Errico et al. (US 2002/0180774 Al, published Dec. 5, 2002) (hereinafter "Errico"); Claims 10-12 are rejected under 35 U.S.C. § I02(b) as being anticipated by Bennett et al. (US 2011/0106964 Al, published May 5, 2011) (hereinafter "Bennett"); Claims 4 and 6 are rejected under 35 U.S.C. § I03(a) as being unpatentable over Errico in view of Fleischman (US 2012/0215903 Al, published Aug. 23, 2012); and Claim 8 is rejected under 35 U.S.C. § I03(a) as being unpatentable over Errico in view of Zhang et al. (US 2007 /0094405 Al, published Apr. 26, 2007). ANALYSIS The § 102(b) reiection of claims 1-3. 5. 7. and 9 Appellants argue claims 1-3, 5, 7, and 9 together as a group. All of the rejections rely, at least in part, on Errico. See Final Act. 5-9; Answer (hereinafter "Ans.") 3-5; see generally App. Br. We select claim 1 as representative. Thus, claims 2, 3, 5, 7, and 9 will stand or fall with claim 1. See C.F.R. § 4I.37(c)(l)(iv). The Examiner finds that Errico discloses all the elements of claim 1. Final Act. 5-7. The Examiner argues that the summary presentation feature in Errico corresponds to the non-chronological ordering recited in claim 1. Final Act. 6; Ans. 11-12. The Examiner clarifies that the interpretation of the claim is influenced by Spec. ,r 33 such that: [b ]uffering in a chronological order, as defined above, is when the portion that is first buffered is the start of the media file ( e.g. segment 1 ), the buffering continuing from start to finish without any 3 Appeal2018-006849 Application 14/023,534 interruptions. The Examiner submits that the presence of gaps (i.e., missing segments) deviates from the natural order of buffering of the media file, and presents interruptions to the continuous playing of the media file. These gaps might be interpreted by the client system as jumps or skips within the media file[,] ... [t]aking the non-play regions 38 into consideration, the buffering as shown in figure 1 presents a discontinuous and interrupted order of buffering of the media file. Therefore, the Examiner submits that a "summary presentation" is a "non-chronological ordering" of a plurality of segments of a media file. Ans. 12 (emphases added). Appellants argue that "the Examiner's analysis is based upon a claim construction in which gaps (i.e., missing segments) cause the segments to be in non-chronological order." App. Br. 11. Appellants clarify that "Appellants have not redefined the term 'chronological order' to mean anything other than the plain and ordinary meaning of that term." Reply Brief (hereinafter "Reply Br.") 2. Appellants note that Spec. ,r,r 33, 34 "explicitly describes an example of non- chronological buffering as follows: Referring to Fig. 1, media server 110 has determined a different order for segments 1-4 to be buffered that is not chronological. The order is: segment 3, segment 1, segment 4, and segment 2." Reply Br. 3--4 ( emphasis in original). Appellants further argue that the Examiner's proposed definition is not consistent with the plain and ordinary meaning, and provide numerous examples of the plain and ordinary meaning of chronological order including gaps or omissions. Reply Br. 4---6. We are persuaded that the Examiner erred in using an improper interpretation of the term "non-chronological order". Under the plain and ordinary meaning of "non-chronological order," we are not persuaded that Errico discloses that term. Specifically, paragraph 25 of Errico discloses "preferably in the same temporally sequential manner as in the original football video," ( emphasis 4 Appeal2018-006849 Application 14/023,534 added}--not "non-chronological order," as required by claim 1. Therefore, we do not sustain the rejection of claims 1-3, 5, 7, and 9 under 35 U.S.C. § 102. The § 102(b) reiection of claims 1 ~12 Appellants argue claims 10-12 together as a group. We note that all of the rejections rely, at least in part, on Bennett. See Final Act. 9-11; Ans. 14; see generally App. Br. We select claim 10 as representative. Thus, claims 11 and 12 will stand or fall with claim 10. See C.F.R. § 4I.37(c)(l)(iv). The Examiner finds that Bennett discloses all the elements of claim 10. Final Act. 9-102. The Examiner appears to use the plain and ordinary meaning of the term "non-chronological" and relies on ,r 38 of Bennett disclosing "requests can be generated in order or out of order (i.e., the media player 20 can request media packets # 10-# 15 and then subsequently send a request for media packets #5- #9)." The Examiner notes that Appellants' arguments directed to a parameter stored in a reference within a Web page are not recited in claim 10 and Appellants do not provide any further argument on the matter. Ans. 14. Finally, the Examiner relies on Spec. ,r 7 4 for claim construction of a web page which discloses "a W ebpage having a media file included or referenced therein." Id. ( emphasis added). Appellants argue that Bennett fails to teach "based upon a parameter stored in a reference within a web page." App. Br. 13-14. Appellants note the usage of different phrasing in the argument does not change the validity of the argument and 2 We note Examiner misidentified Claim 10 as Claim 13 on page 9 of the Final Act. 5 Appeal2018-006849 Application 14/023,534 state "Appellants also made arguments in the Appeal Brief3 using the exact language of the claim (i.e., 'including within the reference, a parameter')." Reply Br. 10. Appellants further argue "as a matter of technology, web pages do not include 'media files.' Rather a typical web page is a HTML document that includes reference [to] other files." App. Br. 14. Appellants urge that "[t]he Examiner apparently does not appreciate the difference between a link to a media file and the media file itself." Reply Br. 10. We are persuaded that the Examiner used a proper interpretation of the term "web page" with respect to the disclosure of Bennett and the 35 U.S.C. § 102 rejection of claim 10. Appellants have not addressed the express language found in ,r 7 4 of the Specification relied upon during the claim construction, which appears to contradict the interpretation being proposed. Thus, although a common understanding could provide that web pages generally contain only links to media files, that understanding is undercut by Appellants' own disclosure. Therefore, we sustain the rejection of claims 10-12 under 35 U.S.C. § 102. The§ 103(a) reiections Appellants acknowledge that claims 4, 6, and 8 stand or fall together with independent claim 1. App. Br. 15-16. Therefore, we do not sustain the rejection of claims 4, 6, and 8 under 35 U.S.C. § 103(a), based on our discussion of the anticipation rejection of claim 1. 3 We note Appellants misidentified claim 10 as claim 19 on pages 13-14 of the Appeal Brief and appear to argue "including a reference to a media file within a Web page" rather than "including within the reference, a parameter indicating that segments of the media file are to be buffered in a non-chronological order." We are unable to find any detailed argument in the Appeal Brief directed to the parameter limitation as indicated by Appellants. 6 Appeal2018-006849 Application 14/023,534 DECISION The Examiner's rejections of claims 1-9 are reversed. The Examiner's rejection of claims 10-12 are affirmed. AFFIRMED-IN-PART 7 Copy with citationCopy as parenthetical citation