Ex Parte Mamidwar et al

Patent Trial and Appeal Board

Feb 24, 2017

13248909 (P.T.A.B. Feb. 24, 2017)

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.
13/248,909 09/29/2011 Rajesh Mamidwar 2875.6310001 1012
49579 7590 02/28/2017
STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
1100 NEW YORK AVENUE, N.W.
WASHINGTON, DC 20005
EXAMINER
ZHOU, ZHIHAN
ART UNIT PAPER NUMBER
2482
NOTIFICATION DATE DELIVERY MODE
02/28/2017 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):
e-office @ skgf.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RAJESH MAMIDWAR and SANJEEV SOOD
Appeal 2016-006508
Application 13/248,909
Technology Center 2400
Before ST. JOHN COURTENAY III, KRISTEN DROESCH, and
SCOTT HOWARD, Administrative Patent Judges.
COURTENAY, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s Final
Rejection of claims 4—6, 13, 20-24, 26, 27, 30, and 32—39, which are all the
claims remaining in the application. Claims 1—3, 7—12, 14—19, 25, 28, 29,
and 31 are cancelled. We have jurisdiction under 35 U.S.C. § 6(b).
We Affirm.
Invention
The disclosed and claimed invention on appeal “relates in general to
audio and video data streaming.” (Spec. |1).
Appeal 2016-006508
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Representative Claim
4. An encoder arrangement for streaming media, the encoder
arrangement comprising:
a plurality of encoders, wherein each encoder in the
plurality of encoders has a different encoding rate, wherein a first
encoder and a second encoder in the plurality of encoders are
configured to receive an input data stream and output respective
first and second encoded data streams;
a buffer coupled to the plurality of encoders, wherein the
buffer is configured to receive the first encoded data stream or
the second encoded data stream and to output a buffered data
stream;
a control module coupled to the buffer, wherein the control
module is configured to:
select the first encoder as an active encoder that is
coupled to the buffer,
[LI] determine whether a depth of the buffer has
exceeded a threshold,
[L2] wherein the threshold is set to avoid changing
the active encoder more often than a predetermined rate
of change, and
select the second encoder in the plurality of
encoders as the active encoder in response to determining that
the depth of the buffer has exceeded the threshold,
a network interface coupled to an output of the buffer,
wherein the network interface is configured to:
receive the buffered data stream, and
output the buffered data stream to a
communications link for an external device.
(Contested limitations LI and L2 emphasized).
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Rejections
A. Claims 34 and 36—38 are rejected under pre-AIA 35 U.S.C. § 103(a)
as being obvious over the combined teachings and suggestions of
Nemiroff (US 2010/0091888 Al; pub. Apr. 15, 2010) in view of
Unger (US 2005/0100100 Al; May 12, 2005).
B. Claims 4—6, 13, 20, 22, and 24 are rejected under pre-AIA 35 U.S.C.
§ 103(a) as being obvious over the combined teachings and
suggestions of Nemiroff, Unger, and Balakrishnan (US 5,566,208; iss.
Oct. 15, 1996).1
C. Claims 30, 32, and 33 are rejected under pre-AIA 35 U.S.C. § 103(a)
as being obvious over the combined teachings and suggestions of
Nemiroff, Frink (US 2010/0218231 Al; Aug. 26, 2010), and Unger. 2
1 We note the Examiner’s heading for rejection B indicates that claims 4—6,
10-13, 20, 22, and 24 are rejected, but we note claims 10,11, and 12 are
cancelled. (Final Act. 4). We consider the Examiner’s incorrect rejection
heading for rejection B as a typographical error (id.) that we have corrected
supra.
2 We note the Examiner’s heading for rejection C (Final Act. 9) indicates
that claims 30-32 are rejected, but we note claim 31 is cancelled, and the
Examiner further indicates on page 11 of the Final Action that independent
“claims 32 and 33 are rejected similarly as claim 30 over Nemiroff in view
of Frink and further in view of Unger.” We consider the Examiner’s
incorrect rejection heading for rejection C (Final Act. 9) as a typographical
error that we have corrected supra.
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D. Claim 35 is rejected under pre-AIA 35 U.S.C. § 103(a) as being
obvious over the combined teachings and suggestions of Nemiroff,
Unger, and Frink. 3
E. Claim 39 is rejected under pre-AIA 35 U.S.C. § 103(a) as being
obvious over the combined teachings and suggestions of Nemiroff,
Unger, and Bajpai (US 2009/0103607 Al; Apr. 23, 2009).
F. Claim 21 is rejected under pre-AIA 35 U.S.C. § 103(a) as being
obvious over the combined teachings and suggestions of Nemiroff,
Unger, Balakrishnan, and Ronca (US 2010/0161825 Al; pub. June 24,
2010).
G. Claim 23 is rejected under pre-AIA 35 U.S.C. § 103(a) as being
obvious over the combined teachings and suggestions of Nemiroff,
Unger, Balakrishnan, and Mighani (US 2011/0276710 Al; pub. Nov.
10, 2011).
H. Claims 26 and 27 are rejected under pre-AIA 35 U.S.C. § 103(a) as
being obvious over the combined teachings and suggestions of
Nemiroff, Vysotsky (US 2008/0117965 Al; pub. May 22, 2008), Saw
(US 6,459,815 Bl; iss. Oct. 1, 2002), and Bajpai.
Grouping of Claims
See claim groupings as detailed for each rejection, infra. To the
extent Appellants have not advanced separate, substantive arguments for
3 We note rejection D of claim 35 is the same ground of rejection as
rejection C, but the Examiner merely indicates a different order of the
Nemiroff, Unger, and Frink references. (Final Act. 12).
4
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particular rejected claims or issues, such arguments are waived. See
37C.F.R. §41.37(c)(l)(iv).
ANALYSIS
We have considered all of Appellants’ arguments and any evidence
presented. We find Appellants’ arguments unpersuasive for the reasons
discussed infra. We adopt as our own: (1) the findings and legal conclusions
set forth by the Examiner in the Final Office Action from which this appeal
is taken, and (2) the findings, legal conclusions, and explanations set forth in
the Answer in response to Appellants’ arguments (Ans. 22—24). We
highlight and address specific findings and arguments for emphasis in our
analysis below.
Rejection B of Representative Claim 4
Issues: Under 35 U.S.C. § 103, did the Examiner err by finding the
cited combination of Nemiroff, Unger, and Balakrishnan would have taught
or suggested contested limitations LI and L2:
[LI] determine whether a depth of the buffer has exceeded a
threshold,
[L2] wherein the threshold is set to avoid changing the active encoder
more often than a predetermined rate of change[,] 4
within the meaning of representative claim 4? (emphasis added). 5
4 We note contested limitations LI and L2 are recited in commensurate form
in each independent claim on appeal: Claims 4, 13, 26, 30, and 32—34.
5 We give the contested claim limitations the broadest reasonable
interpretation consistent with the Specification. See In re Morris, 111 F.3d
1048, 1054 (Fed. Cir. 1997). Cf Spec. 138: “It is to be understood that the
phraseology or terminology herein is for the purpose of description and not
of limitation, such that the terminology or phraseology of the present
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At the outset, we note the Examiner provides an explicit claim
construction in the Final Action (2), in light of Appellants’ Specification, as
copied in the Answer (3):
[The] Examiner has interpreted link speed and link rate to mean
bandwidth, as indicated in applicant’s specification in [0002],
line 14 and [0012], line 9, respectively. In addition, the depth of
the buffer has been interpreted to mean measure of available link
rate, or available bandwidth, as indicated in applicant's
specification in [0025], line 5.
(Ans. 3; Final Act. 2). (emphasis added).
Turning to the Specification for context, we note the pertinent
sentences found in paragraph 2 of the Specification:
A portable device may not be able to keep up with a faster
encoded data stream being sent by a home media server. On the
other hand, if a streaming configuration is set for a “lowest
common denominator” (slowest possible encoding rate suitable
for worst possible link condition) a device capable of greater
bandwidth transfer will not receive optimum signal quality
available by faster encoding.
(Spec. 12) (emphasis added).
As identified by the Examiner (Final Act. 2; Ans. 3), paragraph 12,
line 9, of the Specification refers to an “available link rate (bandwidth).”
As also identified by the Examiner (Final Act. 2; Ans. 3), the Specification
(125,1. 5) expressly describes “[t]he depth of buffer 118 is, in effect, a
measure of available link rate.” (emphasis added).
Given the context described in Appellants’ Specification (H 2, 12,
25), as considered by the Examiner (Final Act. 2; Ans. 3), we accept and
specification is to be interpreted by the skilled artisan in light of the
teachings and guidance.” (emphasis added).
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adopt the Examiner’s broad but reasonable claim interpretation, which we
understand to correlate “faster” or “slower” encoding rates 6 to the output of
a corresponding lesser or greater average amount of encoded data per frame,
and thus requiring a lesser or greater amount of data bandwidth per unit of
time (x frames/sec.), and further requiring a smaller or larger “depth of the
buffer” (Claim 4, i.e., a set buffer threshold) to temporarily store the data
stream as frames per unit of time. 7
Appellants contend: “[t]he ‘threshold’ discussed in paragraphs 28-30
of Unger is not a threshold for ‘the depth of the buffer,’ as claimed, but is
instead a changed bandwidth threshold. More specifically, Unger states that
‘some embodiments determine if the change in bandwidth exceeds a
changed bandwidth threshold before initiating a change in the bit rate.’”
(App. Br. 14).
6 e.g., Variable Bit Rate (VBC) (fast) versus Constant Bit Rate (CBR) (slow)
encoding methods, which encode less (VBC), or more (CBR), bits per
frame, on average, are well known in the art, as evidenced by Unger 13
(describing VBR “where many bits are used for scenes with significant
motion, and few bits for still scenes.”). Because a CBR encoder uses a
constant number of bits to encode each frame, it outputs more data per
frame, on average, than a VBR encoder, which uses less data to encode
frames which contain less motion (where “motion” corresponds to the
number of pixels which change from frame to frame). Appellants’
Specification (e.g., H 13—15) describes an embodiment of a variable rate
encoder. Nemiroff teaches a multi-rate encoding system 100. (121, Fig. 1).
7 Because “applicants may amend claims to narrow their scope, a broad
construction during prosecution creates no unfairness to the applicant or
patentee.” In re ICON Health and Fitness, Inc., 496 F.3d 1374, 1379 (Fed.
Cir. 2007) (citation omitted).
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We note the Examiner relies on Nemiroff flflf 52—53) for teaching or
suggesting the (uncontested) claim 4 buffer limitation: “a buffer coupled to
the plurality of encoders, wherein the buffer is configured to receive the first
encoded data stream or the second encoded data stream and to output a
buffered data stream.” (Final Act. 5). Nemiroff depicts in in Fig. IB a
plurality of encoders (106A . . . 106N), each having an associated transport
rate buffer (144A . . . 144N). See Nemiroff flflf 52—53). (Final Act. 5).
The Examiner turns to Unger flflf 28—30) for teaching or suggesting
the buffer depth threshold is set dynamically in a manner that avoids
changing the active encoder (in Nemiroff) more often than a predetermined
rate of change. (Final Act. 6). Unger describes in pertinent part (| 28):
In some embodiments, the bit rate can be changed once every
frame, once every other frame, or other similar periods to
simplify the implementation and reduce potentially rapid bit rate
changes. Additionally, some embodiments determine if the
change in bandwidth exceeds a changed bandwidth threshold
before initiating a change in the bit rate. This can reduce
rapid changes in bit rates and can avoid bit rate changes
when minor changes will have minimal effect. Similarly, a
hysteresis can be employed to reduce the rapid shifting of the
encoding bit rate.
(emphasis added).
We refer again to the Examiner’s broad but reasonable claim
interpretation (Final Act. 2; Ans. 3), i.e., that a particular data link rate
(bandwidth) corresponds to a necessary depth of the buffer— a “threshold,”
consistent with Appellants’ Specification: “[t]he depth of buffer 118 is, in
effect, a measure of available link rate.” (Spec. 125,1. 5) (emphasis
added).
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As a corollary (id.), we find an artisan having an ordinary level of
skill (but no prior knowledge of Appellants’ claims or Specification) would
have understood that a buffer depth adjustment to accommodate a greater
amount of data would have been necessary to prevent a buffer overflow that
would result in lost data. Thus, in considering the teachings of Nemiroff,
Unger, and Balakrishnan, and the knowledge of the artisan, we are of the
view that a preponderance of the evidence supports a finding that “the
natural result flowing from the operation as taught would result in the
performance of the questioned function.” PAR Pharm., Inc. v TWI Pharms.,
Inc., 773 F.3d 1186, 1194—95 (Fed. Cir. 2014) (internal citation omitted).
Here, we read the Examiner’s broad but reasonable claim
interpretation (Final Act. 2; Ans. 3) of contested limitations LI and L2 on
the corresponding features found in the references, as mapped by the
Examiner. (Final Act. 4—6; re: claim 4). We find Unger’s determination of
changed bandwidth that exceeds a threshold (128), when combined with
Nemiroff’s transport rate buffers 144 (|| 52—52, Fig. IB), and Balakrishnan
(col. 3,11. 59—64), would have taught, or at least suggested, contested
limitation LI: “determine whether a depth of the buffer has exceeded a
threshold,” and also contested limitation L2: “wherein the threshold is set to
avoid changing the active encoder more often than a predetermined rate of
change . . . .” (Claim 4).
We note the Examiner’s findings (Final Act. 6, citing Unger || 28—30,
41, 47) regarding the claimed “depth of the buffer” threshold (Claim 4) are
buttressed by Unger’s express description: “referring to FIG. 6, in step 622,
a fill level statistic of a FIFO can be checked and additionally utilized in
determining a desired transmission and/or encoding rate.” (160) (emphasis
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added). Thus, Unger (id.) correlates a FIFO buffer fill level (i.e., “depth of
buffer” threshold — claim 4) with an encoding rate. Nemiroff is directed to a
system in which “encoder sets are configured to transmit multiple encoded
streams of the same video source stream at different bit-rates.” (Abstract).
Balakrishnan (col. 3,11. 59—64; Final Act. 7) describes:
“compress[ing] or encoding] video information for transmission on a
communication network having a transmission bit-rate allocated to such
compressed video information which may vary and a buffer at the destination
decompression or decoding receiver of fixed size.” (emphasis added).
We note the Examiner’s rejection B of claim 4 is based on the
combined teachings and suggestions of Nemiroff, Unger, and Balakrishnan
(col. 3,11. 59—64)). Our reviewing court guides: “the question under 35
U.S.C. § 103 is not merely what the references expressly teach but what they
would have suggested to one of ordinary skill in the art at the time the
invention was made.” Merck & Co., Inc. v. Biocraft Laboratories, Inc., 874
F. 2d 804, 807—808 (Fed. Cir. 1989) (citation omitted); see also MPEP §
2123.
This reasoning is applicable here. Further regarding contested
limitation L2 (“wherein the threshold is set to avoid changing the active
encoder more often than a predetermined rate of change”), we note that
“[a]n intended use or purpose usually will not limit the scope of the claim
because such statements usually do no more than define a context in which
the invention operates.” Boehringer Ingelheim Vetmedica, Inc. v. Schering-
Plough Corp., 320 F.3d 1339, 1345 (Fed. Cir. 2003). Although “[s]uch
statements often . . . appear in the claim’s preamble,” In re Stencel, 828 F.2d
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751, 754 (Fed. Cir. 1987), a statement of intended use or purpose can appear
elsewhere in a claim. Id. 8
Even assuming arguendo the recited intended purpose (“to avoid
changing the active encoder more often than a predetermined rate of
change’ '’) may be accorded full patentable weight by our reviewing court
(claim 4), we find a preponderance of the evidence supports the Examiner’s
underlying factual findings and ultimate legal conclusion of obviousness, for
the reasons articulated by the Examiner in the Answer (22—23), and as
further discussed above. See also Final Act. 4-7.
Because Appellants have not persuaded us the Examiner erred, we
sustain rejection B of representative independent claim 4, and rejection B of
independent claim 13 (not argued separately). The associated grouped
dependent claims 5—6, 20, 22, and 24 (not argued separately), also fall with
representative independent claim 4. See Grouping of Claims, supra.
Rejection A of claims 34 and 36-38
Rejection A of independent claim 34 (over Nemiroff and Unger) is
8 As a further matter of claim construction of the contested “wherein” clause
L2 limitation, MPEP § 2111.04 guides:
Claim scope is not limited by claim language that suggests or
makes optional but does not require steps to be performed, or by
claim language that does not limit a claim to a particular
structure. However, examples of claim language, although not
exhaustive, that may raise a question as to the limiting effect of
the language in a claim are:
(A) “adapted to” or “adapted for” clauses;
(B) “wherein” clauses; and
(C) “whereby” clauses.
MPEP § 2111.04, Ninth Ed., Nov. 2015 (emphasis added).
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not argued separately. Because Appellants have not persuaded us the
Examiner erred, we sustain rejection A of representative independent claim
34, and rejection A of associated grouped dependent claims 36—38 (not
separately argued), which fall with representative independent claim 34, for
the same reasons discussed above regarding rejection B of claim 4, which
also relies on the same base combination of Nemiroff and Unger. See
Grouping of Claims, supra.
Rejection C of claims 30, 32, and 33
Rejection € of independent claims 30, 32, and 33 (over Nemiroff and
Unger and Frink) is not argued separately. Because Appellants have not
persuaded us the Examiner erred, we sustain rejection C of representative
independent claim 30, and rejection C of associated grouped independent
claims 32 and 33, which fall with representative independent claim 30, for
the same reasons discussed above regarding rejection B of claim 4, which
also relies on the base combination of Nemiroff and Unger. See Grouping of
Claims, supra.
Rejection D of Dependent Claim 35
Rejection D of dependent claim 35 (over Nemiroff and Unger and
Frink) is not argued separately. Because Appellants have not persuaded us
the Examiner erred, we sustain rejection D of dependent claim 35 for the
same reasons discussed above regarding rejection B of claim 4, which also
relies on the base combination of Nemiroff and Unger.
Rejection E of Dependent Claim 39
Rejection E of dependent claim 39 (over Nemiroff, Unger and Bajpai)
is not argued separately, and relies on the same base combination of
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Nemiroff and Unger addressed above in rejections A-D. We find the
teachings in Bajpai (®| 56), as cited by the Examiner (Final Act, 19), further
buttress our findings regarding the base combination of N emiroff and Unger,
Bajpai (f 56) refers to Figure 3, and describes buffer thresholds as colored
zones (e.g., green, yellow, red), in pertinent part:
[0056] Other downward transitions could occur in other levels of
performance as desired. If the system is currently operating in
the "green” zone 304, for example, yet buffer occupancy
increases dramatically (e.g., to the "red" zone 308, or about 70-
85% full), then the encoding rate may be reduced to about eighty
percent (or so) of the network and/or set rates (or the lesser of
the network and set rates) as desired. This transition may occur
after a second (or so) of time has elapsed since the prior
adjustment in some embodiments. Other embodiments may
additionally (or alternately) constrain the new encoder rate to
prevent changes greater than an appropriate percentage (e.g.,
50% or so) of the prior encoding rate when the buffer 105
becomes nearly full. That is, if a significant sway in the network
rate imposes a significant downgrade, it may be desirable to
respond to such situations without creating suddenly large shifts
in the encoding rate.
(Bajpai 1 56) (emphasis added).9
In the Brief (15), we find Appellants fail to advance any substantive
9 See also Bajpai (147): “In many embodiments, it may be undesirable to
make too frequent changes to the encoding parameter. Maintaining at
least some time interval between parameter changes can allow effective
buffer utilization, and can reduce any transient effects of short-lived
changes in network capacity and/or processor load, thereby improving the
user experience. This delay in time changes is reflected in a “time interval”
parameter in FIG. 4 that can be adjusted as desired (steps 413 and 415).”
(emphasis added).
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arguments regarding Bajpai..10 Instead, Appellants merely: (1) restate the
Examiner’s findings, (2), reproduce portions of Bajpai, and (3) assert that
“Bajpai does not teach or suggest at least ‘wherein the threshold is set to
avoid changing [an] active encoder more often than a predetermined rate of
change,’ as recited by independent elaim[s] 4, 13, 26, 30, and 32—34.” (App.
Br. 15).
Our reviewing court guides that mere conclusory statements which are
unsupported by factual evidence are entitled to little probative value. In re
Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); In re De Blauwe, 736 F.2d
699, 705 (Fed. Cir. 1984). Because Appellants have not persuaded us the
Examiner erred, we sustain rejection E of dependent claim 39.
Rejection F of Dependent Claim 2 /
Rejection F of dependent claim 21 (over the combination of Nemiroff,
Unger, Balakrishnan, and Ronca) is not argued separately. Because
Appellants have not persuaded us the Examiner erred, we sustain rejection F
of dependent claim 21 for the same reasons discussed above regarding
rejection B of claim 4, which also relies on the base combination of
Nemiroff and Unger.
Rejection G of Dependent Claim 23
Rejection G of dependent claim 23 (over the combination of
Nemiroff, Unger, Balakrishnan, and Mighani) is not argued separately.
Because Appellants have not persuaded us the Examiner erred, we sustain
rejection G of dependent claim 23 for the same reasons discussed above
10 We note Appellants’ arguments pertaining to Bajpai are irrelevant to
rejections A—D, F, and G, which do not rely on Bajpai as a reference.
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regarding rejection B of claim 4, which also relies on the base combination
of Nemiroff and Unger.
Rejection H of Independent Claim 26 and Dependent Claim 27
Rejection H of independent claim 26 (over the combination of
Nemiroff, Vysotsky, Saw, and Bajpai) is not argued separately, nor is
dependent claim 27 argued separately. Because Appellants have not
persuaded us the Examiner erred, we sustain rejection H of independent
claim 26, and dependent claim 27 (which falls with claim 26) for the same
reasons discussed above regarding rejection B of claim 4 (which relies in
part on the teachings and suggestions of Nemiroff), and for the same reasons
discussed above regarding rejection E of dependent claim 39, in which we
fully address Appellants’ arguments regarding the secondary Bajpai
reference. (App. Br. 15). See Grouping of Claims, supra.
Reply Brief
To the extent Appellants advance new arguments in the Reply Brief
not in response to a shift in the Examiner's position in the Answer, we note
arguments raised in a Reply Brief that were not raised in the Appeal Brief or
are not responsive to arguments raised in the Examiner’s Answer will not be
considered except for good cause. See 37 C.F.R. § 41.41(b)(2).
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Conclusion
For at least the aforementioned reasons, on this record, Appellants
have not persuaded us the Examiner erred. We find a preponderance of the
evidence supports the Examiner’s underlying factual findings and ultimate
legal conclusion of obviousness for all contested claims on appeal.
DECISION
We affirm the Examiner’s decision rejecting claims 4—6, 13, 20—24,
26, 27, 30, and 32—39 under § 103(a).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 41.50(f).
AFFIRMED
16