Ex Parte Kotecha

Patent Trial and Appeal Board

Mar 22, 2018

12796991 (P.T.A.B. Mar. 22, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
121796,991 06/09/2010
25537 7590 03/26/2018
VERIZON
PA TENT MANAGEMENT GROUP
1320 North Court House Road
9th Floor
ARLINGTON, VA 22201-2909
FIRST NAMED INVENTOR
Lalit R. KOTECHA
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.
20100384 3925
EXAMINER
DUBASKY, GIGI L
ART UNIT PAPER NUMBER
2421
NOTIFICATION DATE DELIVERY MODE
03/26/2018 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):
patents@verizon.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte LALIT R. KOTECHA
Appeal2017-006986
Application 12/796,991
Technology Center 2400
Before JOHN A. JEFFERY, ERIC S. FRAHM, and JOHN P. PINKERTON,
Administrative Patent Judges.
JEFFERY, Administrative Patent Judge.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner's
decision to reject claims 1-3 and 5-20. We have jurisdiction under
35 U.S.C. § 6(b). We affirm.
STATEMENT OF THE CASE
Appellant's invention provides video content in multiple formats to a
user device on a wireless network. Specifically, after providing video
content to the user device in a particular format, associated feedback from
the user device is monitored as well as a network condition. Based on the
monitored feedback and network condition, modified video content is
provided to the user device. See generally Abstract; Spec. i-fi-132, 64---67;
Figs. 3, 8. Claim 1 is illustrative:
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1. A method implemented by a computing device, the method
compnsmg:
receiving, by the computing device and from a user device connected
to a wireless network, a request for video content in a particular format;
requesting, by the computing device and from a content provider, the
requested video content in multiple formats that include the particular
format;
receiving, by the computing device and from the content provider, the
video content in multiple formats;
storing, by the computing device, the video content in the multiple
formats, where the video content in the multiple formats is provided locally
to the wireless network;
receiving, by the computing device and from the user device,
feedback associated with the video content in the particular format, wherein
the feedback comprises at least one of a particular bit rate or a quality level
of the video content received by the user device;
receiving, by the computing device, a condition of the wireless
network, wherein the condition of the wireless network is based on at least
one of network congestion, bandwidth usage of other network devices, or
time of day conditions;
generating, by the computing device, a feedback policy decision based
on the condition of the wireless network and the feedback, and a
subscription policy decision based on subscription information;
determining, by the computing device, whether to modify the video
content based on the feedback policy decision and the subscription policy
decision;
modifying the particular format of the video content based on the
feedback policy decision and the subscription policy decision;
determining, by the computing device, whether a user's subscription
policy permits viewing of the modified video content;
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in response to determining that the user's subscription policy does
not permit viewing of the modified content,
providing, by the computing device, an option to modify the user's
subscription policy,
receiving, from the user, a selection to modify the user's
subscription policy, and
modifying the user's subscription policy in response to the
selection; and
providing the video content in the modified format to the user
device.
THE REJECTIONS
The Examiner rejected claims 1-3 and 5-19 under 35 U.S.C. § 103 as
unpatentable over Hasek (US 2008/02017 48 Al; Aug. 21, 2008), Melnyk
(US 2009/0254657 Al; Oct. 8, 2009), and Grandy (US 2004/0205811 Al;
Oct. 14, 2004). Final Act. 3-9. 1
The Examiner rejected claim 20 under 35 U.S.C. § 103 as
unpatentable over Hasek and Grandy. Final Act. 10-12.
THE REJECTION OVER HASEK, MELNYK, AND GRANDY
The Examiner finds that Hasek discloses many recited elements of
independent claim 1 including, among other things, (1) receiving feedback
and a wireless network condition, (2) generating a feedback policy decision
1 Throughout this opinion, we refer to (1) the Final Rejection mailed May
12, 2016 ("Final Act."); (2) the Appeal Brief filed October 14, 2016 ("App.
Br."); (3) the Examiner's Answer mailed January 30, 2017 ("Ans."); and (4)
the Reply Brief filed March 27, 2017 ("Reply Br.").
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based on this received information, (3) generating a subscription policy
decision based on subscription information, ( 4) determining whether to
modify video content based on these policy decisions, ( 5) modifying the
video content's format based on these policy decisions, (6) determining
whether a user's subscription policy permits viewing the modified video
content, and (7) providing video content in the modified format to a user
device. Final Act. 3-5.
Although the Examiner acknowledges that Hasek is silent regarding
whether the feedback comprises a particular bit rate or quality level of
received video content, the Examiner cites Melnyk for teaching this feature.
Final Act. 5-6. The Examiner also acknowledges that Hasek does not
provide an option to modify the user's subscription policy responsive to
determining that the user's subscription policy does not permit viewing the
modified content, but cites Grandy for teaching this feature in concluding
that the claim would have been obvious. Final Act. 5---6.
Appellant argues that Hasek' s computing device does not receive
feedback associated with video content received by a user device as claimed,
but rather merely determines video display support capabilities of customer
premises equipment (CPE) to decide the appropriate transmission resolution
or bitrate. App. Br. 11-14. Melnyk is likewise said to be deficient in this
regard. Id. 13-14.
Appellant also contends that Hasek's device does not receive a
wireless network condition as claimed, but rather merely determines
network conditions. App. Br. 14; Reply Br. 3--4. Appellant adds that
Hasek's device does not generate feedback and subscription policy decisions
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as claimed, let alone modify the video content's format based on those
decisions. App. Br. 15-16; Reply Br. 5-7.
Appellant also argues that Hasek's device does not determine whether
a user's subscription policy permits viewing modified video content, let
alone that this modified content is based on a feedback policy decision as
claimed. App. Br. 16-17; Reply Br. 7-8. Appellant adds that Grandy does
not provide an option to modify a user's subscription policy responsive to
determining that the policy does not permit viewing the modified content.
App. Br. 17-18; Reply Br. 8-9. Lastly, Appellant contends that the
Examiner's rationale to combine the cited references is improper because,
among other things, it is conclusory and the references disclose very
different inventions and objectives-a combination that is said to result from
impermissible hindsight using Appellant's own disclosure. App. Br. 19-21;
Reply Br. 9-10. Appellant argues other recited limitations summarized
below.
ISSUES
I. Under§ 103, has the Examiner erred by finding that Hasek,
Melnyk, and Grandy collectively would have taught or suggested:
( 1) (a) receiving feedback associated with video content in a particular
format, where the feedback comprises at least one of a particular bitrate or a
quality level of video content received by a user device, (b) receiving a
wireless network condition based on at least one of network congestion,
bandwidth usage of other devices, and time of day conditions, ( c) generating
a feedback policy decision based on this received information, ( d) generating
a subscription policy decision based on subscription information, ( e)
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determining whether to modify video content based on these policy
decisions, (t) modifying the video content's format based on these policy
decisions, (g) determining whether a user's subscription policy permits
viewing the modified video content, (h) providing an option to modify the
user's subscription policy responsive to determining that the user's
subscription policy does not permit viewing the modified content, and (i)
providing video content in the modified format to a user device as recited in
claim 1?
(2) the condition includes deteriorating or improving radio conditions
associated with the wireless network, and providing video content with a
lower or higher quality format, respectively, to the user device via the
network as recited in claims 5 and 6?
(3) (a) providing video content in the particular format to the user
device when the user subscribes to a service enabling the user to view the
content in that format, and (b) providing video content in a different format
to the user device when the user does not subscribe to that service as recited
in claim 9?
II. Is the Examiner's proposed combination of the cited references
supported by articulated reasoning with some rational underpinning to
justify the Examiner's obviousness conclusion?
ANALYSIS
Claims 1-3, 7, 8, 10-13, and 16-18
On this record, we are unpersuaded of error in the Examiner's
rejection of claim 1. First, we see no error in the Examiner's reliance on
Hasek and Melnyk collectively for teaching receiving feedback associated
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with video content in a particular format, where the feedback comprises at
least one of a particular bitrate or a quality level of video content received by
a user device. Final Act. 3; Ans. 3--4. A key aspect of the Examiner's
findings in this regard is that Hasek's system receives error-based feedback
associated with video content for user devices, such as reporting various
types of errors described in Hasek's paragraphs 168 and 228. See id.
Despite Appellant's arguments to the contrary (App. Br. 11-14), reporting
these errors at least suggests providing feedback based on the user device's
capabilities including, among other things, the ability to process received
video content.
Although Hasek's error-based feedback is not indicated explicitly as a
bitrate or quality level of received video content, we nevertheless see no
error in the Examiner's reliance on Melnyk in this regard. Final Act. 5-6;
Ans. 4. Notably, Melnyk's adaptive bitrate manager 108 periodically
receives media receiver reports that provide feedback on, among other
things, quality of service pertaining to media packetization and other
associated data enabling bitrate determinations. See Melnyk i-fi-139, 48, 51-
52, 54, 77 (noting that receiver report data can correlate to the quality of
media packets received at a terminal's media player), 79; Figs. 2, 4. These
collective teachings, then, at least suggest the recited feedback reception
limitation.
Nor do we find error in the Examiner's reliance on Hasek for at least
suggesting receiving a wireless network condition based on at least one of
network congestion, bandwidth usage of other devices, and time of day
conditions. Final Act. 4; Ans. 4 (citing Hasek i-fi-f 170, 199-200, 268).
Although Appellant acknowledges that Hasek' s system determines network
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conditions, Appellant nevertheless contends that the recited wireless network
conditions are not received as claimed. See App. Br. 14; Reply Br. 3--4. But
Hasek's paragraph 170 notes that loading and available bandwidth is
generated by the network and sent to the video-on-demand (VOD)
server/session resource manager (SRM) periodically, such as via an inter-
process message. This message-based functionality, then, at least suggests
receiving a wireless network condition as claimed. We reach the same
conclusion regarding monitoring dropped packets and data transmission
delays in Hasek's paragraph 170 for, here again, this functionality at least
suggests receiving data pertaining to network conditions causing these data
losses and delays.
Despite Appellant's arguments to the contrary (App. Br. 14--15; Reply
Br. 4--5), we also see no error in the Examiner's finding that Hasek at least
suggests generating a "feedback policy decision" based on the wireless
network condition and feedback, namely by making decisions regarding
delivering media content to CPEs based at least partly on this information.
See Final Act. 4; Ans. 5; see also Hasek i-fi-f 170, 188, 199. Nor do we see
error in the Examiner's reliance on Hasek' s rules engine for at least
suggesting generating a subscription policy decision based on subscription
information where certain "business rules" are used as a basis for content
selection and modification, including restricting certain programming types
or formats to only certain subscribers in Hasek's paragraphs 189 and 287.
We are also unpersuaded of error in the Examiner's finding that
Hasek at least suggests modifying the particular video content format based
on the feedback and subscription policy decisions. Final Act. 4; Ans. 5---6
(citing Hasek i-fi-1206--09). Notably, the content's selected format and
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resolution in Hasek can be generated by re-encoding, transrating, or altering
the resolution of another existing version of the content-an alteration that
can occur before, during, or after delivery. Hasek i-fi-1207---08 (citing steps
278 and 280 of Figure 2b). Despite Appellant's arguments to the contrary
(App. Br. 15-16; Reply Br. 5-7), this functionality at least suggests
modifying the video content's format based on the feedback and
subscription policy decisions noted above.
Nor do we see error in the Examiner's reliance on Hasek for at least
suggesting determining whether a user's subscription policy permits viewing
the modified video content. Final Act. 4; Ans. 6 (citing Hasek i-fi-190, 189,
193, 199, 287). As noted above, Hasek's rules engine at least suggests
generating a subscription policy decision based on subscription information
where certain "business rules" are used as a basis for content selection and
modification, including restricting certain programming types or formats to
only certain subscribers in Hasek' s paragraphs 189 and 2 87. Despite
Appellant's arguments to the contrary (App. Br. 16-17; Reply Br. 7-8), this
functionality at least suggests determining whether a user's subscription
policy permits viewing of the modified video content, namely by allowing
only certain subscribers to view certain content types or formats-formats
that can result from previous modifications, as noted previously. See, e.g.,
Hasek's i-fi-1207---08.
We also see no error in the Examiner's reliance on Grandy for at least
suggesting providing an option to modify the user's subscription policy
responsive to determining that the user's subscription policy does not permit
viewing the modified content. Final Act. 6; Ans. 6. As shown in Grandy's
Figure 7, if a user's subscription status does not qualify the user to receive
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requested media in step 730, a media server sends a message to the user to
offer the user the opportunity to obtain the requisite subscription to receive
the requested media in step 740. Grandy i-f 108. This process effectively
provides an option to modify the user's subscription policy, namely by
offering the opportunity to obtain a subscription commensurate with the
requested media. See id.
Appellant's contention that Grandy does not generate a feedback
policy decision, let alone determine whether to modify the content based on
the recited policy decisions (App. Br. 17-18; Reply Br. 8-9) is unavailing,
for this argument is not germane to the limited purpose for which Grandy
was cited. That is, Grandy was cited merely to show that it is known in the
art to provide an option to modify a user's subscription policy when viewing
content is not permitted so that the user can view that content, and that
providing such a feature in the Hasek/Melnyk system would have been
obvious. See Final Act. 6; Ans. 6. Appellant's arguments regarding
Grandy's individual shortcomings in this regard, then, do not show
nonobviousness where, as here, the rejection is based on the cited
references' collective teachings. See In re Merck & Co., 800 F.2d 1091,
1097 (Fed. Cir. 1986).
Lastly, despite Appellant's arguments to the contrary (App. Br. 19-
21; Reply Br. 9-10), we see no error in the Examiner's articulated reason to
combine the cited references. In the rejection, the Examiner concluded that
it would have been obvious to modify Hasek's feedback to include bitrate or
quality level of received video content as taught by Melnyk to enhance
system operation by dynamically modifying video content in a more
accurate manner. Final Act. 5---6. This reasoning has a rational basis on this
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record, at least to the extent that providing the particular types of feedback
suggested by Melnyk in Hasek' s system would enable content modification
based on those particular forms of feedback, and, therefore, at least
contribute to more accurate content modification, at least with respect to
those additional forms of feedback. In short, the Examiner's proposed
enhancement to Hasek uses prior art elements predictably according to their
established functions-an obvious improvement. See KSR Int 'l Co. v.
Teleflex, Inc., 550 U.S. 398, 417 (2007).
To the extent Appellant contends that the Examiner erred by not citing
any portion of Hasek or Melnyk for disclosing a motivation to combine the
references (see App. Br. 19--20), we find such an argument unpersuasive. It
is well settled that the motivation to combine references need not be found in
the references sought to be combined. The Supreme Court has rejected the
rigid requirement of demonstrating a teaching, suggestion, or motivation in
the references to show obviousness. See KSR, 550 U.S. at 415-16; see also
In re Ethicon, Inc., 844 F.3d 1344, 1350 (Fed. Cir. 2017) ("KSR directs that
an explicit teaching, suggestion, or motivation in the references is not
necessary to support a conclusion of obviousness."). Instead, the motivation
may be found in any number of sources, including common knowledge, the
prior art as a whole, or the nature of the problem itself. DyStar Textilfarben
GmbH & Co. Deutsch/and KG v. CH Patrick Co., 464 F.3d 1356, 1361
(Fed. Cir. 2006). Even if the Examiner's motivation to combine the
references is not stated explicitly in the cited references, that omission is not
dispositive where, as here, the Examiner's rationale to combine the
references stems from the common knowledge in the art or the nature of the
problem.
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We reach the same conclusion regarding the Examiner's articulated
reason to combine Grandy with the other cited references, namely to
enhance the user's viewing experience by providing the user the opportunity
to upgrade a subscription to enable viewing selected content. Final Act. 6.
Certainly, being able to view selected content in the first instance by
obtaining the appropriate subscription for the content would enhance the
user's viewing experience as the Examiner explains. Despite Appellant's
arguments to the contrary (App. Br. 20-21; Reply Br. 9--10), this reasoning
has a rational basis on this record, and uses prior art elements predictably
according to their established functions-an obvious improvement. See
KSR, 550 U.S. at 417.
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 1, and claims 3, 7, 8, 10-13, and 16-18 not argued separately with
particularity.
Claims 5 and 14
We also sustain the Examiner's rejection of claim 5 reciting, in
pertinent part, the condition includes deteriorating radio conditions
associated with the wireless network, and providing video content with a
lower quality format to the user device via the network. Final Act. 7; Ans.
7-8 (citing Hasek i-fi-1200, 206, 289; Melnyk i-fi-176-82).
Despite Appellant's arguments to the contrary (App. Br. 21-22; Reply
Br. 10-11), Appellant does not persuasively rebut the Examiner's reliance
on Hasek's bandwidth-based content modification for at least suggesting that
deteriorating radio conditions can at least contribute to reducing bandwidth
and, therefore, necessitating delivering content with a lower-quality format
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requiring less bandwidth under these conditions. See Ans. 7-8 (citing Hasek
i-fi-1200, 206, 289). That Hasek teaches that (1) the same program can be
encoded according to three different formats in paragraph 193, and (2) a
program variant can be selected with a lower-bandwidth codec when high
loading conditions are detected in paragraph 188, only bolsters the
Examiner's findings and conclusions in this regard. See also Hasek i-f 199
(noting that prevailing network operation conditions can affect content
selection).
Nor does Appellant squarely address-let alone persuasively rebut-
the Examiner's additional findings from Melnyk's paragraphs 76 to 82 for
teaching the recited limitation. See Ans. 8. Accordingly, the preponderance
of the evidence on this record favors the Examiner's position.
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 5, and claim 14 not argued separately with particularity. 2
Claims 6 and 15
We also sustain the Examiner's rejection of claim 6 reciting, in
pertinent part, improving radio conditions associated with the wireless
network, and providing video content with a higher quality format to the
user device via the network. Final Act. 7; Ans. 7-8 (citing Hasek i-fi-1200,
206, 289; Melnyk i-fi-176-82). For reasons similar to those discussed with
respect to claim 5, we are unpersuaded of error in the Examiner's reliance on
2 Although Appellant nominally argues claim 14 separately (App. Br. 25-
26), Appellant reiterates arguments made for claim 5. We, therefore, group
these claims accordingly. We treat other nominally-argued claims similarly,
and group those claims accordingly.
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Hasek for at least suggesting the recited limitations despite Appellant's
arguments to the contrary (App. Br. 23). Nor does Appellant squarely
address-let alone persuasively rebut-the Examiner's additional findings
from Melnyk' s paragraphs 7 6 to 82 for teaching the recited limitation. See
Ans. 8. Accordingly, the preponderance of the evidence on this record
favors the Examiner's position.
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 6, and claim 15 not argued separately with particularity.
Claims 9 and 19
We also sustain the Examiner's rejection of claim 9 reciting, in
pertinent part, ( 1) providing video content in the particular format to the user
device when the user subscribes to a service enabling the user to view the
content in that format, and (2) providing video content in a different format
to the user device when the user does not subscribe to that service. Final
Act. 8-9; Ans. 8.
Despite Appellant's arguments to the contrary (App. Br. 23-24; Reply
Br. 11-12), Appellant does not persuasively rebut the Examiner's reliance
on Hasek and Grandy for at least suggesting these limitations. As noted
previously, Hasek teaches that (1) a rules engine can provide certain types or
formats of video content to only certain subscribers, and (2) a user's
subscription level can be used determine the type of codec used, network
interface selected, etc. See Hasek i-fi-f 189, 199, 287.
These subscription-based content-delivery factors, along with the fact
the same program can be encoded according to three different formats in
Hasek' s paragraph 193, at least suggests that video content can be delivered
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to the user in a particular format based on the user's subscription level. This
functionality, considered in light of Grandy's teaching that a multimedia
client program may be presented to a user with various functions, tools,
appearances, and content according to a user's subscription level in
paragraph 105, at least suggests that providing video content to a user in a
different format to the user device when the user does not subscribe to that
service would have been at least an obvious variation.
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 9, and claim 19 not argued separately with particularity.
THE OBVIOUSNESS REJECTION OVER HASEK AND GRANDY
We also sustain the Examiner's obviousness rejection of claim 20.
Final Act. 10-12. Despite nominally arguing this rejection separately,
Appellant reiterates similar arguments made in connection with claim 1,
which we find unpersuasive for the reasons previously discussed. See App.
Br. 26-30; Reply Br. 13.
CONCLUSION
The Examiner did not err in rejecting claims 1-3 and 5-20 under
§ 103.
DECISION
We affirm the Examiner's decision to reject claims 1-3 and 5-20.
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
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