Ex Parte Candelore

Patent Trial and Appeal Board

May 19, 2016

12913010 (P.T.A.B. May. 19, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/913,010 10/27/2010 Brant L. Candelore
24337 7590 05/20/2016
MILLER PATENT SERVICES
2500 DOCKERY LANE
RALEIGH, NC 27606
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.
SY-03002.01 3085
EXAMINER
FOGG, CYNTHIA M
ART UNIT PAPER NUMBER
2427
MAILDATE DELIVERY MODE
05/20/2016 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BRANT L. CANDELORE 1
Appeal2014-007005
Application 12/913,010
Technology Center 2400
Before ALLEN R. MacDONALD, HUNG H. BUI, and AMBER L. HAGY,
Administrative Patent Judges.
HAGY, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner's
Final Rejection of claims 1-5, 8-17, and 20-22, which are all claims
pending.2 We have jurisdiction over these claims under 35 U.S.C. § 6(b).
1 Appellant identifies Sony Corporation as the real party in interest. (App.
Br. 2.)
2 Claims 7 and 19 were canceled in an Amendment filed December 3, 2012.
Claims 6 and 18 were canceled in an Amendment filed May 29, 2013.
Appeal2014-007005
Application 12/913,010
We atlirm-in-part and enter new grounds of rejection within the
provisions of 37 C.F.R. § 41.50(b).
Introduction
According to Appellant, the claimed invention purports to address the
problem of viewing stored content obtained through "adaptive streaming,"
wherein portions of the stored content are of "lower resolution than is
optimal." (Spec. 7.) Further according to Appellant, the claimed invention
resolves this problem by:
1) On future playback, the player recognizes that a lower
resolution segment is in the file, and retrieves the higher
resolution segment to be streamed in real-time, or 2) After a
download has initially "completed", a quality assurance routine
checks each segment of a file. If a higher resolution segment is
available, the segment is re-downloaded. As an adjunct to this
process, it is also possible to either stream supplementary data
that converts the lower resolution data (e.g., the higher frequency
components) to higher resolution in real time or in order to
upgrade the stored content that is of lower resolution.
(Spec. 5.)
Exemplary Claims
Claims 1 and 13, reproduced below with the disputed limitations
italicized, are exemplary of the claimed subject matter:
1. A method, comprising:
sending a request to a source for an A/V program to be
streamed as real time viewable content using adaptive streaming,
where a resolution of the A/V program is adapted while being
streamed in accordance with varying available bandwidth;
receiving an adaptively streamed stream of data
representing real time viewable A/V content from the source
where the stream contains a high resolution representation of at
least a first portion of the content and a lower resolution
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representation of at least a second portion of the content in the
adaptively streamed stream;
displaying the A/V content represented by the adaptively
streamed stream in real time as it is being received;
storing the adaptively streamed stream of data to an
electronic storage device;
determining that the stored stream of data includes the
lower resolution representation of the at least second portion of
the content;
receiving a playback command to initiate play of the
stored stream of data;
as a result of the determining and receipt of the playback
command, changing the lower resolution representation of the at
least second portion of the content to a high resolution
representation of the at least second portion of the content using
additional data received from the source;
storing the high resolution representation of the at least
second portion to the electronic storage device; and
producing a high resolution output stream of data
representing the A/V content by combining the high resolution
representation of the at least first portion of the content from the
storage device with the high resolution representation of the at
least second portion of the content, where both the high
resolution representations of the first and second portions are
stored in the storage device and where the producing comprises
retrieving the high resolution representations of the first and
second portions from the storage device.
13. An apparatus, comprising:
an input circuit that receives an adaptively streamed
stream of data representing the A/V content, where the stream
contains a high resolution representation of at least a first portion
of the content and a lower resolution representation of at least a
second portion of the content received in the adaptively streamed
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stream, where a resolution of the NV program is adapted while
being streamed in accordance with varying available bandwidth;
a display that displays the adaptively streamed stream of
data in real time as it is being received;
a programmed processor;
an electronic storage device that stores the adaptively
streamed stream of data under control of the processor;
the processor being programmed to determine that the
stored stream of data includes the lower resolution representation
of the at least second portion of the content received in the
adaptively streamed stream;
the processor being further programmed to receive a
playback command that is received to initiate play of the stored
stream of data;
the processor being further programmed to change the
lower resolution representation of the at least second portion of
the content into a high resolution representation of the at least
second portion of the content using additional supplemental data
to augment the lower resolution representation received from the
source when the processor determines that the stored stream of
data includes the lower resolution representation of the at least
second portion of the content and when the processor determines
that a playback command has been received;
the processor being further programmed to store the high
resolution representation of both the first and second portions to
the electronic storage device; and
an output circuit that produces a high resolution output
stream of data representing the NV content as a combination of
the high resolution representation of the at least first portion of
the content from the storage device and the high resolution
representation of the at least second portion of the content.
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REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Krapf
Tillman et al. ("Tillman")
Ota
Robert et al. ("Robert")
Knittle
US 6,483,986 Bl
US 6,496,980 B 1
US 2008/0155623 Al
US 2011/0082914 Al
US 2012/0005368 Al
REJECTIONS
Nov. 19, 2002
Dec. 1 7, 2002
June 26, 2008
Apr. 7, 2011
Jan. 5,2012
Claims 1, 10, 11, and 22 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Robert and Krapf. (Final Act. 4--7, 10-11.)
Claims 13 and 17 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Robert, Krapf, and Tillman. (Ans. 4 (adding Tillman to
Robert and Krapf); Final Act. 7-10 (rejecting over Robert and Krapf).)
Claims 2, 4, 14, and 16 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Robert, I(rapf, and I(nittle. (Final 1A .. ct. 11-14.)
Claims 3, 9, 15, and 21 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Robert, Krapf, and Ota. (Final Act. 14--17.)
Claims 5, 8, and 20 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Robert, Krapf, and Tillman. (Final Act. 17-19.)
Claim 12 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Robert, Krapf, Tillman, and Ota. (Final Act. 19-22.)
ISSUES
1. Whether the Examiner erred in finding the combination of
Robert and Krapf teaches or suggests "as a result of the determining and
receipt of the playback command, changing the lower resolution
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representation of the at least second portion of the content to a high
resolution representation of the at least second portion of the content using
additional data received from the source," as recited in independent claim 1.
2. Whether the Examiner erred in finding the combination of
Robert, Krapf, and Tillman teaches or suggests:
[T]he processor being further programmed to change the lower
resolution representation of the at least second portion of the
content into a high resolution representation of the at least second
portion of the content using additional supplemental data to
augment the lower resolution representation received from the
source when the processor determines that the stored stream of
data includes the lower resolution representation of the at least
second portion of the content and when the processor determines
that a playback command has been received,
as recited in independent claim 13.
3. Whether the Examiner erred in finding the combination of
Robert, Krapf, Tillman, and Ota teaches or suggests:
[I]n response to a playback command that is received to
initiate play of the stored A/V content in full:
determining that the stored stream of data includes
the lower resolution representation of the at least second
portion of the content, and producing a high resolution
output stream of data representing the full A/V content by
combining the high resolution representation of the at least
first portion of the content from the storage device with a
high resolution representation of the at least second
portion of the content that is streamed in real time from the
source and combined with the lower representation of the
at least second portion of the content to produce a high
resolution representation of the at least second portion of
the content ... ,
as recited in independent claim 12.
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ANALYSIS
A. Claims 1, 10, 11, 13, 17, and 22
The Examiner finds Robert teaches all limitations of claim 1 (Final
Act. 4--6), except the claim limitations "receiving a playback command to
initiate play of the stored stream of data; and receipt of the playback
command." (Final Act. 6.) As to those limitations, the Examiner finds
"Krapf from the same or similar endeavor teaches the claim limitations
receiving a playback command to initiate play of the stored stream of data ..
. and receipt of the playback command .... " (Final Act. 6 (citing Krapf
2:47---60).)
Appellant argues the Examiner's findings are in error because the
Examiner's findings do not teach or suggest "as a result of the determining
and receipt of the playback command, changing the lower resolution
representation of the at least second portion of the content to a high
resolution representation ... ,"as recited in claim 1. (App. Br. 10 (emphasis
added).) In particular, Appellant argues claim 1 requires "that both
receiving and determining are to have occurred in order to effect the claimed
resolution change." (Id.) Appellant further argues "[n]one of the cited art is
believed to reasonably disclose or suggest carrying out a process of changing
lower resolution content to higher resolution content only as a result of both
determining that the content has lower resolution portions and receipt of a
playback command." (App. Br. 11 (emphases added).)
We agree with Appellant's reading of the disputed limitations of claim
1, and we further agree the Examiner has not made findings that the
combination of Robert and Krapf teaches or suggests these limitations. As
the Examiner states in response on appeal, "the Examiner has relied upon
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Robert ([0033]) to teach the limitation of changing the lower resolution
content to higher resolution content and Krapf to teach the limitation of
playback in receipt of a playback command." (Ans. 3.) These findings,
however, fall short of finding that the cited references teach "changing the
lower resolution content to higher resolution content" "as a result of . ..
receipt of the playback command," as recited in claim 1. (App. Br. 17
(Claims Appendix) (emphases added).)
Accordingly, on this record, we do not sustain the Examiner's finding
that the combination of Robert and Krapf teaches or suggests the disputed
limitation of claim 1. We, therefore, are constrained to reverse the
Examiner's rejection of independent claim 1, and also claims 10 and 11,
which depend from claim 1.
Independent claim 13 contains similar disputed limitations as in claim
1, reciting that the lower resolution data is changed to higher resolution data
"[ w ]hen the processor determines that a playback command has been
received . .. "(App. Br. 20 (Claims Appendix) (emphasis added).) The
Examiner rejects claim 13, and also claims 17 and 22, which depend from
claim 13, also over the combination of Robert and Krapf, applying similar
reasoning as applied to claim 1. (Final Act. 7-10.) For the reasons as stated
above for claim 1, we are persuaded of Examiner error in the rejection of the
claims 13, 17, and 22, which Appellant argues collectively with claim 1.
(App. Br. 10-12.) Although the Examiner adds findings regarding Tillman
in the Answer on appeal (Ans. 4), the Examiner's findings regarding
Tillman's teachings relative to claims 13 and 17 are limited to using
"supplementary" data to increase resolution of stored segments from low to
high resolution, as opposed to replacing low resolution segments with high
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resolution segments. (Id.) As to those findings, Appellant does not present
substantive arguments in Reply (Reply Br. 7), and we agree with the
Examiner's findings. As Appellant correctly notes, however, the Examiner
does not make findings that Tillman remedies the deficiencies noted above
regarding changing resolution "as a result of ... receipt of the playback
command," as recited in independent claim 1 and commensurately recited in
independent claim 13. (Reply Br. 7; see Ans. 4.)
Accordingly, on this record, we do not sustain the Examiner's finding
that the combination of Robert, Krapf, and Tillman teaches or suggests the
disputed limitation of claim 13. We, therefore, are constrained to reverse the
Examiner's rejection of independent claim 13, and also claims 1 7 and 22,
which depend from claim 13.
B. Claims 2-5, 8-11, 14-16, 20, and 21
As to claims 2-5 and 8-11, which depend from claim 1, and also as to
claims 14--16, 20, and 21, which depend from claim 13, the Examiner relies
primarily on Robert and Krapf, as discussed supra, and adds reference to
Knittle, Ota, or Tillman. (Final Act. 11-19.) As to each of these claims,
Appellant alleges error "for the same reasons presented above" in
connection with independent claims 1 and 13. (App. Br. 14--15.) Appellant
further contends that "[t]he Examiner has not alleged" that the Examiner's
additional reliance on Knittle, Ota, and Tillman "makes up for the
deficiencies noted above .... " (Id.) We agree. Because we are persuaded
of error in the Examiner's findings as to Robert and Krapf for the reasons set
forth above in the rejection of independent claims 1 and 13, we also reverse
the rejections of dependent claims 2-5, 8-11, 14--16, 20, and 21.
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C. Claim 12
Claim 12 is an independent claim that, similarly to independent claims
1 and 13, recites "in response to a playback command that is received to
initiate play of the store A/V content in full ... producing a high resolution
output stream of data" by combining stored high resolution content with
streamed high resolution content. (App. Br. 19-20 (Claims Appendix).)
The Examiner's findings as to this limitation are similar to the Examiner's
findings regarding claim 1, citing Robert as the primary reference, but
acknowledging that Robert fails to teach "in response to a playback
command ... ,"(Final Act. 20), and citing Krapf as teaching that limitation.
(Final Act. 21 (finding Krapf teaches "[w]hen the viewer selects the
desired program, the streaming video data stored on the personal video
recorder is displayed." (citing Krapf 2:49-51, 57---60).)
The Examiner also finds Robert does not teach the manner of
producing the high resolution output as required by claim 12, or the
additional steps recited in claim 12 of "storing the high resolution
representation of the full A/V content ... "or "presenting the high resolution
representation of the full A/V content ... on a display device." (Final Act.
20.) The Examiner cites Tillman as disclosing these limitations. (Final Act.
21-22 (citing Tillman 1:20-47, 2:32--44, 10:8-35, 11:1-10, and Figures 1
and 3).) The Examiner also cites Ota as teaching "[w]hen a viewer
requests the content, the system looks into the local storage to see if the
requested content in a lower quality version exists." (Final Act. 22
(citing Ota i-f 19).) We agree the Examiner's findings regarding Tillman and
Ota are supported by the cited disclosures.
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Appellant does not present separate substantive arguments for claim
12, but argues "[t]he Examiner has erred in rejection of these claims for the
same reasons presented above in connection with claim l," and further
argues "[t]he Examiner has not alleged and Appellant does not find that
either or both of the Tillman or Ota references make up for the deficiencies
noted above." (App. Br. 15.)
As we have found regarding claims 1 and 13, we agree with Appellant
the Examiner's findings regarding Robert and Krapf in the context of claim
12 fall short of presenting a prima facie case that the combination of Robert
and Krapf teaches or suggests that the step of "producing" the full high
resolution output is performed "in response to a playback command," as
recited in claim 12. However, additional portions of the Tillman reference,
not relied on by the Examiner for this limitation, support a finding that the
combination of Robert, Krapf, and Tillman teaches or suggests that the
"producing" step as recited in claim 12 is performed "in response to a
playback command .... " In particular, Tillman discloses:
When a request is received by the graphical user interface 48 to
provide replay for a selected video segment, server system 32
sends additional video data for the selected video segment in one
or more enhancement layers 54. The data from the enhancement
layers may be added by the client system to the data from the base
layer stored in the client case to produce a higher quality image.
(Tillman 7:39-50 (emphasis added).)
In addition, findings made by the Examiner regarding the Ota
reference in connection with other limitations of claim 12 support the
conclusion that the combined teachings of Robert, Krapf, Tillman, and Ota
teach or suggest that the "determining" step as recited in claim 12 is
performed "in response to a playback command .... " In particular, the
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Examiner finds Ota teaches "[w]hen a viewer requests the content, the
system looks into the local storage to see if the requested content in a
lower quality version exists." (Final Act. 22 (citing Ota ,-r 19) (emphasis
added).) Ota further discloses if a lower quality version does exist,
[T]he system requests the server to start streaming
augmentation or enhancement data .... When this real-time on-
demand augmentation data is combined with the lower quality
data already stored in the local storage ... system, a full high
quality rendition of the original content can be produced.
(Ota i-1 19.)
For the foregoing reasons, in addition to the reasons set forth by the
Examiner (see Final Act. 19-22), we find the combination of Robert, Krapf,
Tillman, and Ota teaches or suggests all limitations of claim 12. We adopt
the Examiner's findings and reasoning regarding a motivation to combine
these references. (Final Act. 10-22.) We, therefore, sustain the Examiner's
35 U.S.C. § l 03(a) rejection of claim 12.
NEW GROUNDS OF REJECTION PURSUANT TO 37 C.F.R. § 41.50(B)
As to claim 12, we designate our affirmance as a new ground of
rejection because we have relied on new facts and reasons in support of the
rejection.
We also enter a new ground of rejection for claims 1, 10, and 11 under
35 U.S.C. § 103(a) as obvious over Robert, Krapf, and Ota.
We find the combination of Robert, Krapf, and Ota discloses the
disputed limitations of claim 1. In particular, as noted above in connection
with our analysis of claim 12, Ota discloses:
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When a viewer requests the content, the system looks into
the local storage to see if the requested content (in a lower
quality version) exists. If it does exist, the system requests the
server to start streaming augmentation or enhancement data.
Such augmentation data may be high frequency components of
the original signal or frames that were sub sampled. When this
real-time on-demand augmentation data is combined with the
lower quality data already stored in the local storage the system,
a full high quality rendition of the original content can be
produced.
(Ota i-f 19 (emphases added); see also Final Act. 22.) We adopt the
Examiner's findings regarding the remaining limitations of claim 1 (Final
Act. 4--7), in addition to the Examiner's findings, made in connection with
claim 12, regarding the reasons an ordinarily skilled artisan would be
motivated to combine the teachings of Robert, Krapf, and Ota. (Final Act.
21-22.) We, therefore, conclude claim 1 is unpatentable under 35 U.S.C.
§ 103(a) over the combination of Robert, Krapf, and Ota.
In addition, in the absence of argument persuasive of error in the
Examiner's findings regarding the limitations of dependent claims 2-5 and
8-11, and for the reasons stated supra regarding claim 1, and pursuant to 37
C.F.R. § 41.50(b), we reject dependent claims 2-5 and 8-11under35 U.S.C.
§ 103(b) as unpatentable over Robert, Krapf, and Ota as applied to claim 1
and further over Knittle (claims 2, 4, 14, and 16) or Tillman (claims 5, 8, and
20) in view of the reasons set forth by the Examiner in the Final Action at
pages 11-12, 14--15, and 17-18.
With regard to independent claim 13, we adopt our analysis regarding
the disputed limitations of claim 1 as to the similar disputed limitations in
claim 13 reciting "[w]hen the processor determines that a playback
command has been received ... ,"and conclude this limitation is taught or
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suggested by the combination of Robert, Krapf~ and Ota. We also adopt the
Examiner's findings and reasoning regarding the teachings of Robert, Krapf,
and Tillman as to claim 13 's recitation of "using additional supplemental
data to augment the lower resolution representation .... " (Ans. 4.) We also
find Ota teaches or suggests this limitation by teaching:
[T]he system requests the server to start streaming
augmentation or enhancement data .... When this real-time on-
demand augmentation data is combined with the lower quality
data already stored in the local storage ... system, a full high
quality rendition of the original content can be produced.
(Ota i-f 19.) We further adopt the Examiner's findings, made in connection
with claim 12, regarding the reasons an ordinarily skilled artisan would be
motivated to combine the teachings of Robert, Krapf, Tillman, and Ota.
(Final Act. 21-22.) We, therefore, conclude claim 13 is unpatentable under
35 U.S.C. § 103(a) over the combination of Robert, Krapf, Tillman, and Ota.
In addition, in the absence of argument persuasive of error in the
Examiner's findings regarding the limitations of dependent claims 17 and
22, and for the reasons stated supra regarding claim 13, and pursuant to 37
C.F.R. § 41.50(b), we reject dependent claims 17 and 22 under 35 U.S.C.
§ 103(b) as unpatentable over Robert, Krapf, Tillman, and Ota as applied to
claim 13.
DECISION
The Examiner's 35 U.S.C. § 103(a) rejections of claims 1-5, 8-11,
13-17, and 20-22 are reversed.
The Examiner's 35 U.S.C. § 103(a) rejection of claim 12 is affirmed.
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Pursuant to our authority under 3 7 C.F .R. § 41. 50(b ), we enter new
grounds of rejection for claims 1-5, 8-17, and 20-22 under 35 U.S.C.
§ 103(a). As to claim 12, we designate our affirmance as a new ground of
rejection because we have relied on new facts and reasons in support of the
rejection.
Regarding the new rejections, section 41. 50(b) of 3 7 C.F .R. provides
that "[a] new ground of rejection pursuant to this paragraph shall not be
considered final for judicial review."
Section 41.50(b) also provides that Appellant, WITHIN TWO
MONTHS FROM THE DATE OF THE DECISION, must exercise one of the
following two options with respect to the new grounds of rejection to avoid
termination of the appeal as to the rejected claims:
( 1) Reopen prosecution. Submit an appropriate
amendment of the claims so rejected or new Evidence relating to
the claims so rejected, or both, and have the matter reconsidered
by the examiner, in which event the proceeding will be remanded
to the examiner. ...
(2) Request rehearing. Request that the proceeding be
reheard under§ 41.52 by the Board upon the same Record ....
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED-IN-PART
37 C.F.R. § 41.50(b)
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