James S. Manchester et al.Download PDFPatent Trials and Appeals BoardSep 4, 201913678593 - (D) (P.T.A.B. Sep. 4, 2019) Copy Citation 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. 13/678,593 11/16/2012 James S. Manchester TWC12-09(12-18) 5353 156874 7590 09/04/2019 Armis Intellectual Property Law, LLC P.O. Box 1564 Westborough, MA 01581 EXAMINER HUANG, JEN-SHI ART UNIT PAPER NUMBER 2423 NOTIFICATION DATE DELIVERY MODE 09/04/2019 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): chris.lutz@armisiplaw.com docket@armisiplaw.com eofficeaction@appcoll.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte JAMES S. MANCHESTER, WILFRED JAIME MILES, MATTHEW ZELESKO, and ETHAN WOLF ____________ Appeal 2018-003543 Application 13/678,5931 Technology Center 2400 ____________ Before DAVID M. KOHUT, IRVIN E. BRANCH, and JOSEPH P. LENTIVECH, Administrative Patent Judges. BRANCH, Administrative Patent Judge. DECISION ON APPEAL2 Appellants appeal under 35 U.S.C. § 134(a) from a Final Action rejecting claims 1–20 and 29–55.3 We have jurisdiction under 35 U.S.C. § 6(b). 1 According to Appellants, the real party in interest is “Time Warner Cable Enterprises LLC.” Br. 2. 2 Our decision relies upon the Final Action mailed July 19, 2016 (“Final Act.”), Appeal Brief filed January 18, 2017 (“Br.”), Answer mailed December 11, 2017 (“Ans.”), and Reply Brief filed February 12, 2018 (“Reply”). 3 Claims 2128 were previously cancelled. Appeal 2018-003543 Application 13/678,593 2 We affirm-in-part. THE INVENTION The invention relates to “adaptive bitrate (ABR) technology.” Spec. 1, l. 16.4 From a “single feed or data channel,” the invention generates a “varying . . . number of encoded data streams produced at different respective bitrates.” Id. 2, ll. 10, 17–18. In an example, a media provider offers ten bitrates BR1–BR10 (i.e., ten levels of playback quality) and consequently encodes a channel’s feed into ten data streams respectively having the ten bitrates BR1–BR10. Id. 11, l. 5–6; 12, l. 5–13, l. 2; Fig. 2. If the feed is a newscast, streams are not produced at the three highest bitrates because newscast viewing is typically not improved by those bitrates (i.e., quality does not visibly increase). Id. 3, 7–13; 13, ll. 2–14. If the feed is a sports event, streams are produced at all bitrates because sports event viewing is typically improved by even the highest bitrates. Id. 3, 14–22; 13, ll. 15–26. ILLUSTRATIVE CLAIM Claim 1, reproduced below, is illustrative of the invention. 1. A method comprising: via video-processing computer hardware, performing operations of: receiving segments of content from an inputted data stream, the segments of content including images from video; 4 The record contains references to “bit rate” and “bitrate.” For consistency, all references herein to “bit rate” are changed to “bitrate.” Appeal 2018-003543 Application 13/678,593 3 receiving encoder control information specifying multiple different bitrate data streams in which to encode the segments of content; and as specified by the encoder control information, adaptively encoding the segments of content into a varying number of different bitrate data streams with respect to a bitrate threshold value, the varying number of different bitrate data streams being available to subscribers. Br. 61 (claims appendix). REFERENCES AND REJECTIONS Claims 1–3, 5, 6, 8–17, 29–31, 33, 34, 36–41, 43–45, 47, and 49–55 are rejected under 35 U.S.C. § 102(a) as anticipated by Panigrahi (US 2008/0052414 A1; Feb. 28, 2008). Final Act. 3–20. Claims 4, 18, 19, and 32 are rejected under 35 U.S.C. § 103(a) as obvious over Panigrahi and Gordon (US 2005/0034155 A1; Feb. 10, 2005). Final Act. 21–22. Claims 7 and 35 are rejected under 35 U.S.C. § 103(a) as obvious over Panigrahi and Cholas (US 2011/0083145 A1; Apr. 7, 2011). Final Act. 23. Claim 20 is rejected under 35 U.S.C. § 103(a) as obvious over Panigrahi and McLean (US 2011/0129201 A1; June 2, 2011). Final Act. 24. Claim 42 is rejected under 35 U.S.C. § 103(a) as obvious over Panigrahi and Zhang (US 2009/0300204 A1; Dec. 3, 2009). Final Act. 25. Claim 46 is rejected under 35 U.S.C. § 103(a) as obvious over Panigrahi and Major (US 2012/0265856 A1; Oct. 18, 2012). Final Act. 26. Claim 48 is rejected under 35 U.S.C. § 103(a) as obvious over Panigrahi and Nilsson (US 2011/0296485 A1; Dec. 1, 2011). Final Act. 27– 29. Appeal 2018-003543 Application 13/678,593 4 PANIGRAHI All claims are rejected over Panigrahi’s “content creator” and “content customizer” (Final Act. 3 et seq.), which are best illustrated by Panigrahi’s Figures 4, 6, and 7.5 As shown by Figures 6 and 7, the content creator (and particularly its “video track processor” and “audio track processor”) encodes a clip of input video into “prepped video content” and “prepped audio content” (or, generally, “prepped content” for all types of tracks). Panigrahi ¶¶ 7, 47– 48. As further shown by Figure 6, the video encoding parameters (e.g., frame rates and quantization scales (QScales)) are determined from the clip’s “video classification” and “target usage information.” Id. The video classification is set by the clip’s content (e.g., sports, news). Id. ¶ 47. The target usage information is set by the clip’s expected reproduction (e.g., resolutions and refresh rates of pertinent playback devices) and distribution (e.g., bandwidths and packet drop rates of pertinent networks). Id. As shown by the top-half of Figure 4, a clip’s prepped content includes “ingredients, or streams, . . . for [providing] various combinations of [the encoding] parameters.” Id. ¶ 37; see also id. ¶¶ 38, 41–43. From these resulting frames (which have varied encoding parameters), the content customizer selects and stitches together a “customized stream” of frames for a “receiving device” (e.g., playback device). Id. ¶¶ 36–38, 80–81. The combination of frames is configured to optimize the clip’s playback on a 5 Specifics of the content creator and content customizer are respectively presented by Panigrahi’s paragraphs 46–77 and 79–88. See Panigrahi ¶¶ 45 (“Content Creator Construction and Operation” heading), 78 (“Content Customizer Construction and Operation” heading). Appeal 2018-003543 Application 13/678,593 5 given receiving device (e.g., for a respective resolution and refresh rate) and transport over given network resources (e.g., for a respective network bandwidth and packet drop rate). Id.; see also id. ¶ 8. Panigrahi summarizes the above features of the content creator and content customizer as follows: In the presented system 100, the processing and preparation of the content [(i.e., content creator)] and the customization of the content to fit to different network/device conditions [(i.e., content customizer)] are independently achieved . . . to generate customized streams of data without having to store a large number of pre-prepared streams. [I]n a conventional system . . . varying between 10 kb[p]s to 200 kbp[s] bandwidth . . . , the number of streams required to be stored can be as high as 800 streams . . . . [R]ather than storing 800 streams and dynamically choosing the closest stream based on the network condition, the present techniques process content clips to generate major components or ingredients . . . . For the example cited above, it is sufficient to store twenty streams . . . and perform dynamic adaptation to match network conditions. Id. ¶ 26. ANALYSIS We have reviewed the rejections in light of the contentions within the Briefs.6 Except where reversing a rejection of a claim, we adopt the 6 In numerous instances, Appellants’ contentions amount to attorney argument without supporting evidence or explanation. For example, the contentions for claim 2 merely quote the claim limitations and Panigrahi’s at-issue paragraphs, provide a one-sentence summary of the paragraphs, and then cursorily assert (i.e., without stating reasons) the paragraphs do not teach the limitations. Br. 25–26. Such contentions form only a general allegation of patentability, which is not an argument. See e.g., In re Appeal 2018-003543 Application 13/678,593 6 Examiner’s pertinent findings within the Final Action and Answer. That is, we adopt the findings consistent with our analysis. Enhanced Sec. Research, LLC, 739 F.3d 1347, 1353 (Fed. Cir. 2014); In re Marco Guldenaar Holding B.V., 911 F.3d 1157, 1162 (Fed. Cir. 2018); In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011); 37 C.F.R. § 41.37(c)(1)(iv) (“The arguments of appellant . . . shall explain why the examiner erred.”); see also In re Baxter Travenol Labs, 952 F.2d 388, 391 (Fed. Cir. 1991) (“It is not the function of this court to examine the claims in greater detail than argued by an appellant[.]”); In re Piasecki, 745 F.2d 1468, 1472 (Fed. Cir. 1984) (“After a prima facie case . . . has been established, the burden of . . . [r]ebuttal is . . . a showing of facts supporting the opposite conclusion.” (internal quotation marks and citation omitted)); SHOW, Black’s Law Dictionary (10th ed. 2014) (“To make (facts, etc.) apparent or clear by evidence; to prove”); compare 37 C.F.R. § 1.111 (“A general allegation that the claims define a patentable invention[,] without specifically pointing out how the language of the claims patentably distinguishes them from the references[,] does not comply with the requirements of this section.”). To facilitate prosecution, we have addressed such contentions insofar as identifying the prima facie cases against the respective disputed limitations. Arguments against the merits of these prima facie cases (e.g., contesting the reasonableness or sufficiency of a finding) are waived unless introduced by the Appeal Brief or constituting a response of the Reply Brief (i.e., to a new finding or clarification of the Answer). See 37 C.F.R. § 41.37(c)(1)(iv) (“[A]ny arguments or authorities not included in the appeal brief will be refused consideration by the Board for purposes of the present appeal.”). Appeal 2018-003543 Application 13/678,593 7 ANTICIPATION REJECTION Claims 1, 6, 8–11, 16, 17, 29–31, 33, 34, 36–41, 43, and 44 We select claim 1 as representative of the group comprising claims 1, 6, 8–11, 16, 17, 29–31, 33, 34, 36–41, 43, and 44 because none of the other claims were argued with particularity. 37 C.F.R. § 41.37(c)(1)(iv). Appellants contend Panigrahi’s paragraphs 27, 31, 44, 48, 62, and 72– 73 do not teach encoding of segments into a varying number of different bitrate data streams. Br. 20–21; Reply 3–5; Final Act. 4; Ans. 3– 4. Specifically, Appellants contend “Panigrahi[’s] prepped content 216 [is] encoded at low, medium and high QScales[, but not] . . . into a varying number of different bitrate data streams.” Br. 20–21. Appellants further contend: “[T]he number of bitrate data streams in Panigrahi does not change[.] . . . A given customized data stream in Panigrahi is one data stream[.]” Reply 4. We are unpersuaded. Appellants mischaracterize the rejection as reading the claimed encoding on Panigrahi’s encoding of the prepped content into customized streams (i.e., by the content customizer). Rather, the rejection reads the claimed encoding on Panigrahi’s encoding of the input video into prepped content (i.e., by the content creator). Final Act. 4; Ans. 3–4. In other words, the claimed “varying number of different bitrate data streams” is read on Panigrahi’s varying of the prepped content—not on varying of the customized stream. Id. This approach is plainly conveyed by: the Final Action’s cite to Panigrahi’s varying of QScales to encode a clip into varying compressions; the Answer’s cite to Panigrahi’s encoding of a clip based on its content classification and target usage information. Final Act. 4; Ans. 3–4; see also, e.g., Panigrahi ¶¶ 48 (using refresh rate as Appeal 2018-003543 Application 13/678,593 8 target usage information), 62 (using “motion input” as a content classification), 73 (content creator variably “encode[s with] QScales”). Appellants also contend Panigrahi’s paragraphs 48 and 72–73 do not teach encoding with respect to a bitrate threshold.7 Br. 24; Reply 5; Final Act. 4; Ans. 4. Specifically, Appellants contend the Final Action reads the claimed threshold on Panigrahi’s paragraphs 72–73 without sufficient explanation. Br. 24. Appellants further contend paragraph 48 teaches “[c]ontrolling which bitrate data of encoded video is included in a respective customize data stream” and, thus, “has nothing to do with” a bitrate threshold. Reply 5. We are unpersuaded. The Examiner finds: Panigrahi’s paragraph 48 teaches a varying max refresh rate of a clip’s expected receiving devices; this target usage information varies a clip’s quantity of prepped-content streams inasmuch the content creator does not produce data streams having frame rates above the max refresh rate. Ans. 4; see also Panigrahi ¶ 48 (“[I]f no target device has a refresh rate higher than 15 fps, the Content Creator video encoder should not generate any combination [of encoding parameters] that has a higher frame rate than 15 frames per second.”). The Examiner finds paragraphs 72–73 teach the prepped-content streams as being encoded with respect to target bitrate ranges inasmuch the streams are encoded at QScales set by the clip’s target bitrate range/s, resolution/s, and frame rate/s. Final Act. 4. Appellants do not show the above findings are 7 Independent claim 29 does not recite this feature. Appeal 2018-003543 Application 13/678,593 9 incorrect or otherwise fail to address the claimed encoding with respect to a bitrate threshold.8 For the foregoing reasons, we are unpersuaded of error and accordingly sustain the rejection of claims 1, 6, 8–11, 16, 17, 29–31, 33, 34, 36–41, 43, and 44. Claims 2, 12, 49, and 50 Claim 2 depends from claim 1 and recites that the encoding includes encoding first and second portions of the segments to (“up to but not over”) respective first and second levels of quality, which correspond to bitrates respectively lesser and greater than the bitrate threshold. Claim 12 also depends from claim 1 and similarly recites that the encoding includes encoding first and second segments of the content to 8 We add that Pangrahi’s paragraphs 70–75 indicate that clips having different max frame rates may, in each of two respects, be encoded into different quantities of prepped content streams. First, in the example of paragraph 72 (resolution of 160x120 and target bitrate range of 50–100 kbps), clips with respective frame rates of 7.5 and 5 fps are encoded into different sized QScale ranges of 8–18 (10 units) and 4–12 (8 units). If these clips are encoded into streams providing the same size “steps between implemented QScale values” (id. ¶ 72), then the two QScale ranges are achieved by respective quantities of prepped content streams (i.e., quantities of steps). Second, a clip with a higher “base frame rate” (i.e., max frame rate) may include more “desired frame rates” (id. ¶ 75) and, thus, may fall with more of the encoding parameter groups that the content creator “would generate” (id. ¶ 72). In the example of paragraph 72, a clip with base frame rate of 7.5 fps may include desired frame rates of 5 and 3.75 fps; the three frame rates corresponding to three encoding parameter groups (with respective QScale ranges of 8–18, 4–12, and 1–8). Id. A clip with base frame rate of 5 fps may include a desired frame rate of 3.75 fps; the two frame rates corresponding to two encoding parameter groups (with respective QScale ranges of 4–12 and 1–8). Appeal 2018-003543 Application 13/678,593 10 (“into”) respective first and second levels of quality, which are different and specified by the encoder control information (herein “ECI”). Claim 49 depends from claim 29 and similarly recites that the encoding includes encoding first and second segments of the content to (“up to”) respective first and second levels of quality, which have respectively greater and lesser levels of quality. Claim 50 depends from claim 1 and is otherwise identical to claim 49. Appellants contend Panigrahi’s paragraphs 72–73 do not teach encoding into levels of quality having respective bitrates.9 Br. 25–26, 31, and 40–41; Reply 7–9, 15–16; Final Act. 4, 9; Ans. 5–6, 8. Specifically, Appellants contend paragraphs 72–73: “merely indicate to generate a single customized data stream based upon selection of appropriate different bitrate encoded frames” (Br. 26; see also id. 31); “merely indicate that a content creator . . . encodes the data in accordance with appropriate frame rates” (id. 39); “merely indicate[] to produce prepared content 216 at a fixed predetermined number of bitrates” (id. 41). Appellants further contend: “paragraphs 72 and 73 . . . only indicate how . . . Panigrahi generates a single customized data stream based on a target bitrate range” (Reply 7); “Panigrahi generates a customized data stream [from] portions of prepared content 216 [having] a fixed number of bitrates or levels of quality[ and] . . . select[s] one level of quality of encoded content for inclusion in the customized data stream” (id. 9). We are unpersuaded. In the examples of paragraphs 72–73, a clip’s input video is encoded into prepped-content streams each having a QScale, 9 Claim 12 does not recite the levels of quality as having respective bitrates. Appeal 2018-003543 Application 13/678,593 11 resolution, and frame rate that yield a bitrate within a target bitrate range. Panigrahi ¶¶ 70–73. The example of paragraph 72 addresses a resolution of 160x120 and target bitrate range of 50–100 kbps by encoding the clip into prepped-content streams having: QScales of 8–18 and a frame rate of 7.5 fps; QScales of 4–12 and a frame rate of 5 fps; QScales of 1–8 and a frame rate of 3.75 fps. See also id. ¶¶ 70–73 (The QScales are varied to create multiple streams for each combination of target bitrate range, resolution, and frame rate; such that a stream corresponds to a small bitrate increment within the bitrate range). The example of paragraph 73 addresses a resolution of 352x288 and target bitrate range over 400 kbps by encoding the clip into prepped-content streams having: QScales of 8–18 and a frame rate of 7.5 fps; QScales of 4–12 and a frame rate of 5 fps; QScales of 1–8 and a frame rate of 3.75 fps. Appellants do not show the above encoding fails to teach the claimed encoding into levels of quality having respective bitrates. For the foregoing reasons, we are unpersuaded of error and accordingly sustain the rejection of claims 2, 12, 49, and 50. Claim 3 Claim 3 depends from claim 1 and recites that the ECI specifies bitrates for a scheduled program of streaming content. Appellants contend Panigrahi’s paragraph 36 does not teach ECI. Br. 27; Final Act. 5; Ans. 6–7. Specifically, Appellants contend “[t]here is no mention of encoder control information.” Br. 27. We are unpersuaded. Appellants mischaracterize the rejection of claim 3 as reading the claimed ECI on Panigrahi’s paragraph 36. The claimed ECI is read on Panigrahi by the rejection of claim 1—namely on Appeal 2018-003543 Application 13/678,593 12 Panigrahi’s content classification and target usage information. Final Act. 3; Ans. 3. The Examiner cites Panigrahi’s paragraph 36 as teaching only a scheduled program of streaming content. Final Act. 5; Ans. 6; see also Panigrahi ¶ 36 (“multimedia digital content clips[,] in a scheduled or ad-hoc manner, . . . efficiently streamed or downloaded”). For the foregoing reasons, we are unpersuaded of error and accordingly sustain the rejection of claim 3. Claim 5 Claim 5 depends from claim 1 and recites that the method further comprises varying bitrates of the segments based on the bandwidth available to transmit the segments. Appellants contend Panigrahi’s paragraphs 82–87 do not teach varying of bitrates based on available bandwidth. Br. 30; Ans. 5; Final Act. 5; Ans. 7. Specifically, Appellants contend: “[T]hese cited paragraphs merely indicate to allocate available bandwidth in a network. . . . [T]he content in Panigrahi is encoded into prepped content 216 at predetermined specific bitrates regardless of the available bandwidth.” Br. 30. We are unpersuaded. Appellants mischaracterize the rejection as reading claim 5’s varying of bitrates on Panigrahi’s encoding of input video into prepped content. The Examiner reads claim 1’s “varying . . . bitrate data streams” on Panigrahi’s encoding of input video into prepped content. See supra 7–8. The Examiner reads claim 5’s unrelated varying of bitrates on Panigrahi’s encoding of prepped content into customized streams based on the network’s current bandwidth. Ans. 7 (citing Panigrahi ¶¶ 82–87 as “teach[ing] bandwidth allocation[,] which reads on [the claimed] bandwidth Appeal 2018-003543 Application 13/678,593 13 availability”); see also Panigrahi ¶ 82 (describing the “available bandwidth and packet drop rate” as factors for selecting the frames of a customized stream). For the foregoing reasons, we are unpersuaded of error and accordingly sustain the rejection of claim 5. Claim 13 Claim 13 depends from claim 1 and recites that the method further comprises: distributing, to subscribers, content access information that indicates the segments encoded into the varying number of bitrate data streams; a subscriber selectively retrieving the encoded segments. Appellants contend Panigrahi’s paragraphs 32 and 74 do not teach a distributing of content access information to subscribers. Br. 32; Reply 10; Final Act. 9–10; Ans. 8–9. Specifically, Appellants contend paragraph 32 “merely indicates to produce a customized video stream for distribution to a target device.” Br. 32. Appellants further contend paragraph 74 “indicates [an] availability [of clips and metadata] to the Content Creator” but does not disclose passing of that information to subscribers. Reply 10. We are persuaded. Claim 13 recites distributing of the content access information to “the subscribers,” which are claim 1’s subscribers read on Panigrahi’s receiving devices (Final Act. 4). As Appellants argue, the Examiner reads claim 13’s same subscribers on rather Panigrahi’s content creator (Ans. 9). The Examiner does not explain (i.e., reconcile) this inconsistency of reading the same claimed subscribers on Panigrahi’s receiving devices (claim 1) and content creator (claim 13). See e.g., Ans. 8– 9 (addressing Appellants’ arguments for claim 13). Having no benefit of explanation, we find the inconsistency to be erred. Appeal 2018-003543 Application 13/678,593 14 For the foregoing reasons, we are persuaded of error and accordingly do not sustain the rejection of claim 13. Claims 14 and 15 Claim 14 depends from claim 1 and recites that the method further comprises: analyzing the segments to determine their transmission bandwidth requirements; encoding the segments at different bitrates; adjusting a second number (“a number”) of different bitrate data streams based on the bandwidth requirements. Claim 15 depends from claim 14 and recites that the second number of different bitrate data streams is increased because the bandwidth requirement is above a threshold. Appellants contend Panigrahi’s paragraphs 26–27, 51–52, and 55 do not teach adjusting a quantity of different bitrate streams based on a bandwidth threshold. Br. 33–35; Reply 10–11; Final Act. 10; Ans. 9– 10. Specifically, Appellants contend paragraphs 26–27 “merely indicate to generate a fixed number of segment streams (20).” Br. 35. Appellants further contend: “Paragraph[s] 51–52 of Panigrahi indicate to encode audio at a single selected bitrate depending on audio classification [and] . . . target device characteristics, target audience and network/service requirements. There is no indication that [these factors] change[, much less] that the audio is [accordingly] coded at a varying number of bitrates.” Reply 10. We are unpersuaded. The Examiner finds Panigrahi’s paragraphs 51– 52 “teach[] dynamic encod[e] audio data base on bandwidth availability.” Ans. 9. The Examiner identifies, therein, examples of variably encoding audio content (into prepped audio content) to accommodate the respective Appeal 2018-003543 Application 13/678,593 15 audio classification’s bandwidth requirements. Ans. 9–10. The Examiner also quotes Panigrahi’s following disclosure: “Assume that the audio input is bandwidth limited audio at 4 kHz. With this type of audio input, the audio encoder can detect that the source audio is of toll quality (i.e., telephone grade) and will only encode the audio input content using narrow-band speech compression.” Ans. 10 (quoting Panigrahi ¶ 55). We interpret this as finding that some clips would, based on their lesser audio bandwidth requirements, be encoded into fewer audio prepped-content streams than other clips. Appellants do not show the above findings are incorrect or otherwise fail to address the claimed adjusting a quantity of different bitrate streams based on a bandwidth threshold. For the foregoing reasons, we are unpersuaded of error and accordingly sustain the rejection of claims 14 and 15. Claim 45 Claim 45 depends from claim 1 and recites that the encoding includes encoding first and seconds portions of a title (of video content) into respectively greater and lesser numbers of different bitrate data streams. Appellants contend Panigrahi’s paragraphs 27 and 72–73 do not teach encoding of two video portions into respective numbers of bitrate data streams. Br. 35–36; Reply 12–13; Final Act. 15–16; Ans. 10–11. Specifically, Appellants contend: paragraphs 72–73 “merely indicate to generate a single customized data stream for [a] recipient device based upon selection of appropriate different bitrate encoded frames” (Br. 36); “[t]here is no indication that Panigrahi varies encoding of content into a different number of data streams to produce the [prepped] content” (id.). Appellants further contend: “[P]aragraphs 72 and 73 have nothing to do with varying a Appeal 2018-003543 Application 13/678,593 16 number of bitrate data streams[.] They only indicate how . . . Panigrahi generates a given customized data stream using already encoded content (prepped content 216).” Reply 12. We are unpersuaded. As discussed for claims 2, 12, 49, and 50, paragraphs 72–73 teach that a clip’s input video is encoded into prepped content streams each having a QScale, resolution, and frame rate that yield a bitrate within a target bitrate range. Panigrahi ¶¶ 70–73; see also supra 10– 11. The Examiner finds that clips would be encoded into respective quantities of data streams if corresponding to different combinations of these encoding parameters. Final Act. 15–16; Ans. 10–11; see also supra fn. 7. Appellants do not show the above finding is incorrect or otherwise fail to address the claimed encoding of two video portions into respective numbers of bitrate data streams. For the foregoing reasons, we are unpersuaded of error and accordingly sustain the rejection of claim 45. Claim 47 Claim 47 depends from claim 1 and recites: the different bitrate data streams include first and second data streams encoded at respectively higher and lower bitrates; the encoding stops producing the first data stream if/when “an appropriate” level of image quality is achieved by the second data stream. Appellants contend Panigrahi’s paragraphs 48, 49, 72–73, and 75–76 do not teach discontinuing of a bitrate stream if a lower bitrate stream has “appropriate” quality. Br. 35–36; Reply 12–13; Final Act. 15–16; Ans. 11– 12. Specifically, Appellants contend: paragraphs 72–73 “merely indicate to produce a single data stream for a recipient device” (Br. 37); paragraph 48 Appeal 2018-003543 Application 13/678,593 17 “merely indicates that the content customizer can select amongst multiple different encoded bitrate frames to produce a customized data stream” (id. 38). Appellants further contend: [P]aragraphs 72–73 . . . indicate to produce a customized data stream using different bitrate content from prepped content 216. Paragraph 49 . . . indicates that audio in the customized data stream can vary as well. Paragraphs 75–76 . . . indicate to gauge a change between successive frames included in the customized data stream so there is a smooth transition when viewing the customized data stream. Reply 11. We are unpersuaded. The Examiner finds that, with respect to higher and lower bitrate streams, the lower bitrate stream has an “appropriate” level of image quality if/when a decrease in bandwidth (network) or the max refresh rate (receiving devices) prompts the encoder to stop generating the higher bitrate stream. Ans. 12. The Examiner also finds Panigrahi’s content creator lowers the prepped-content’s bitrate ranges in response to such decreases and, thus, teaches the claimed discontinuing of a higher bitrate stream. Id. Appellants do not show this finding is incorrect or otherwise fail to teach the claimed discontinuing of a higher bitrate stream. For the foregoing reasons, we are unpersuaded of error and accordingly sustain the rejection of claim 47. Claims 51–54 Claim 51 depends from claim 1 and recites that the method further comprises: classifying first and second segments into respective first and second classes, which are based on pixel setting variations and respectively lesser and greater classes; encoding the first and second segments so as to Appeal 2018-003543 Application 13/678,593 18 overlap at the bitrate threshold value (because both segments are encoded “up to” the threshold)10. Claim 52 depends from claim 51 and recites that the first and second classes correspond to first and second bitrates, which are both less than the bitrate threshold and respectively lesser and greater bitrates. Claim 53 depends from claim 52 and recites that the classifying includes classifying the first and second segments based on the pixel setting variations of respective images. Claim 54 depends from claim 1 and, similar to claims 51–53 (collectively), recites that the method further comprises: receiving ECI indicating a magnitude of complexity, which is based on the pixel setting variation of a segment and indicates a range of different bitrate data streams in which to encode the segment; adjusting the number of different bitrate data streams to be within the range. Appellants contend Panigrahi’s paragraphs 62 and 70–73 do not teach encoding of segments up to a same bitrate threshold despite having different pixel setting variations. Br. 41, 43; Reply 17; Final Act. 17–19; Ans. 13– 14. Specifically, Appellants contend: paragraphs 70–73 “merely indicate to encode each of multiple portions of content at a predetermined number of frames per second . . . and quantization scales” (Br. 41); “[t]here is no mention of pixel setting variations in Panigrahi[, much less] segments of content [that] are classified based on pixel variations” (id.); “paragraphs 70– 10 Claim 2 recites “up to but not over” a threshold. This confirms claim 51’s “up to” limitation permits surpassing of the threshold (e.g., the classes could be ranges of 1–4 and 2–5; both overlapping a threshold of 3). Appeal 2018-003543 Application 13/678,593 19 73 . . . merely indicate to encode each of multiple segments of content according to a static number of quantization scales and frame rates” (id. 43). Appellants further contend: [Paragraph 62] indicates that the Content creator 102 decides an appropriate frame rate to include in a respective customized data stream. [This] has nothing to do with encoding the [first and second segments] up to the bitrate threshold value even though the first segment . . . is classified as having lower pixel setting variations than the second segment. Reply 17. We are unpersuaded. The Examiner reads the claimed pixel setting variations on Panigrahi’s video classifications (motion inputs) ascribing respective frame rates to clips. Ans. 14–15 (citing Panigrahi ¶ 62). The Examiner reads the remaining limitations on the content creator’s groupings of encoding combinations, which are delineated (in part) by frame rates. Final Act. 17–19 (citing Panigrahi ¶¶ 70–73); Ans. 13 (referring Appellants to the Answer’s remarks for claim 2); see also supra 10–11 (explaining the groupings). The Examiner thus finds Panigrahi’s content creator sometimes encodes clips of different content classifications into respective groups of encoding combinations (i.e., those with corresponding frame rates) that have overlapping target bitrate ranges. Appellants do not show the above findings are incorrect or otherwise fail to address the claimed encoding of segments up to a same bitrate threshold despite having different pixel setting variations. For the foregoing reasons, we are unpersuaded of error and accordingly sustain the rejection of claims 51–54. Appeal 2018-003543 Application 13/678,593 20 Claim 55 For claim 55, Appellants contend: “For applicable reasons as discussed herein, . . . the cited prior art merely indicates to encode content into a fixed number of quality levels.” App. Br. 45. Appellants do not provide any further explanation—nor do Appellants even mention where these “applicable reasons” can be found. Therefore, we will not consider this contention. Nor will we consider the Reply Brief contentions (Reply 21–23), which are untimely because of the Appeal Brief’s failure to raise an issue. For the foregoing reasons, we are unpersuaded of error and accordingly sustain the rejection of claim 55. OBVIOUSNESS REJECTIONS Claims 4, 18, and 32 We select claim 4 as representative of claims 18 and 32.11 37 C.F.R. § 41.37(c)(1)(iv). Claim 4 depends from claim 1 and recites that the method 11 Claim 32 is separately addressed but not argued. Br. 48–49. Specifically, claim 32 is addressed under a separate subheading, but the arguments are directed to the recitations of claim 19. Claim 32 recites: “as specified by the encoder control information, varying a number of bitrates of encoding segments of a scheduled program of streaming content received on the inputted data stream.” Id. 67 (claims appendix). Appellants meaninglessly contend claim 32 recites (id. 48), and distinguishes over the prior art by reciting (id. 49), the following limitations of claim 19: “dynamically adjusting a number of different bit rate data streams into which the segments of content are encoded based at least in part on network bandwidth available to transmit segments of content encoded at different levels of quality.” This is another example of Appellants’ failure to consistently provide meaningful arguments. See supra fn. 6. This appears, in fact, to be an example of cutting-and-pasting a formulaic argument without even checking the results. Appeal 2018-003543 Application 13/678,593 21 further comprises varying bitrates of the segments based on a time of day the segments are received. Appellants contend Gordon’s Figure 1 and paragraphs 76 and 80 do not teach or suggest varying of bitrates based on a time of day. Br. 46–47; Final Act. 21; Ans. 16. Specifically, Appellants contend Gordon’s paragraph 80 “merely indicates to form a bitstream.” Br. 47. We are unpersuaded. The Examiner finds Gordon’s interactive program guide (IPG) associates a channel’s input video with a time of day and, thus, it would have been obvious for Panigrahi’s content creator to identify a channel’s input video via an IPG and the time of day. Appellants do not show the above findings are incorrect or otherwise fail to address the claimed varying of bitrates based on a time of day. For the foregoing reasons, we are unpersuaded of error and accordingly sustain the rejection of claims 4, 18, and 32. Claim 19 Claim 19 depends from claim 18 and recites that the method further comprises encoding the segments into an adjustable number of different bitrate data streams; the adjustments being based on available network bandwidth. Appellants’ contentions address only Gordon’s paragraphs 50 and 83. Br. 47–48; Reply 23–24. The Final Action, on the other hand, cites only Panigrahi against claim 19. Final Act. 22. The Answer’s discussion of Gordon’s paragraphs 50 and 83 (for claim 19) is redundant to the Examiner’s reliance on Panigrahi. Ans. 16–17 (showing that Gordon also separately encodes segments of content, namely slices of an IPG, to better accommodate each segment’s content and the network’s available Appeal 2018-003543 Application 13/678,593 22 bandwidth). Appellants cannot rebut the rejection of claim 19 by addressing only Gordon’s paragraphs 50 and 83. Appellants must, but do not, address the Examiner’s reliance on Panigrahi. For the foregoing reasons, we are unpersuaded of error and accordingly sustain the rejection of claim 19. Claims 7 and 35 We select claim 7 as representative of the group comprising claims 7 and 35. 37 C.F.R. § 41.37(c)(1)(iv). Claim 7 depends from claim 1 and recites that the method further comprises receiving the ECI from a signal out-of-band with respect to the inputted data stream. Appellants contend Chola’s paragraph 40 does not teach or suggest ECI out-of-band with respect to the corresponding content (which will be encoded). Br. 50–51; Final Act. 24; Ans. 18–19. Specifically, Appellants contend “[t]he cited paragraph in Cholas merely indicates that control information can indicate a QAM frequency band into which digital video content can be inserted.” Br. 51. We are unpersuaded. Appellants mischaracterize Chola’s cited disclosure. As the Examiner finds, Chola’s paragraph 40 teaches transmitting of media content and its control information on separate bands. Final Act. 24; Ans. 18–19; Chola ¶ 40 (“QAM signal . . . referred to as the content delivery signal” and “control signal . . . received on a frequency band . . . different from . . . content delivery signal”). For the foregoing reasons, we are unpersuaded of error and accordingly sustain the rejection of claims 7 and 35. Appeal 2018-003543 Application 13/678,593 23 Claim 20 Claim 20 depends from claim 1 and recites that the method further comprises eliminating the encoding of content into a selected one of the different bitrate data streams and thereby freeing network bandwidth. Appellants contend McLean’s paragraph 22 does not teach or suggest eliminating of a data stream to free bandwidth. Br. 52; Reply 24–25; Final Act. 24; Ans. 18–19. Specifically, Appellants contend “[t]he cited paragraph in McLean merely indicates that segments of content can be removed after being played.” Br. 52. Appellants further contend: “[R]emoval of content stored in memory does not free bandwidth in a network over which portions of the encoded data streams are transmitted. Deleting content only frees memory space.” Reply 25. We are persuaded. The Examiner finds, in view of McLean, it would have been obvious for Panigrahi’s content creator to free memory by eliminating some streams of prepped content. Final Act. 24; Ans. 19; see also McLean ¶ 22 (addressing a shortage of memory for media segments by temporarily ceasing use of the memory). Id. As Appellants argue, the Examiner has not shown (and it is not evident how) the proposed eliminating of prepped-content streams would free network bandwidth as opposed to memory. Br. 52; Reply 24–25. For the foregoing reasons, we are persuaded of error and accordingly do not sustain the rejection of claim 20. Appeal 2018-003543 Application 13/678,593 24 Claim 42 Claim 42 depends from claims 1, 2, and 41 and recites that the first and second segments12 are part of a same title (claim 42) and encoded up to different bitrates (claim 41) that yield respective first and second levels of quality (claim 2). Appellants contend Zhang’s paragraphs 4 and 35 do not teach or suggest encoding a title’s segments at different bitrates and levels of quality. Br. 51–55; Reply 25–26; Final Act. 25; Ans. 19–20. Specifically, Appellants contend: “The cited paragraphs in Zhang merely indicate that content can be divided into segments and that different bitrate encoding results in more or less accurate reproduction of an original video signal. [T]here is no indication of dynamically encoding segments of the same title of content up to different bitrates as recited by the claimed invention.” Br. 55. Appellants further contend: “Higher bitrates provide a higher level of quality content. . . . There is no indication [in Zhang] that segments from the same title of content are encoded up to different levels of quality.” Reply 26. We are unpersuaded. Appellants mischaracterize Zhang’s cited disclosure. Zhang’s paragraph 35 teaches to encode segments at “N” bitrates and that higher bitrates result in greater quality. Zhang’s preceding paragraphs confirm the “N” bitrates may be different for segments of the same title. Zhang ¶¶ 30–31. 12 Claim 2 recites first and second portions. Claim 41 recites the first and second portions as respectively including the first and second segments. Appeal 2018-003543 Application 13/678,593 25 For the foregoing reasons, we are unpersuaded of error and accordingly sustain the rejection of claim 42. Claim 46 Claim 46 depends from claims 1 and 45 and recites that the method further comprises producing the ECI so as to direct, in response to network congestion, a switch to a lesser number (claim 45’s second number) of the different bitrate data streams. Appellants contend Major’s paragraph 42 does not teach or suggest switching to a lesser number of bitrate data streams. Br. 56–57; Reply 26– 27; Final Act. 26; Ans. 20–21. Specifically, Appellants contend: “[Paragraph 42] merely indicates adaptive bitrate transmission of data over a network to a recipient. That is, when network congestion is detected, a client device retrieves lower quality streaming video at a lower bitrate.” Br. 57. Appellants further contend: “The selected content in Major is already encoded; selection of it has no [e]ffect on the number of data streams produced.” Reply 27. We are persuaded. The Examiner reads the claimed ECI on Panigrahi’s inputs to the content creator (see supra 7–8), which do not concern network congestion (see Panigrahi Fig. 6). The inputs to the content customizer, however, concern network congestion insofar as concerning current network conditions. Panigrahi ¶ 80 (the content customizer receives “network information collected by the [n]etwork [m]onitor” and concerning “current network conditions”). The Examiner’s findings do not state why nor does the Examiner provide an obviousness analysis that, in view of Major’s adaptive bitrate transmission, it would have been obvious to an Appeal 2018-003543 Application 13/678,593 26 artisan to change (e.g., supplement) the above role of Panigrahi’s content customizer by directing the content creator to address network congestion. For the foregoing reasons, we are persuaded of error and accordingly do not sustain the rejection of claim 46. Claim 48 Claim 48 depends from claim 47 and recites that the method further comprises: providing the subscribers access to the varying number of different bit rate data streams; receiving, based on an input from a subscriber, encoded segments selected from the different bit rate data streams; initiating distributions of the encoded segments to the subscriber’s device. Appellants contend Nilsson’s paragraphs 7, 33–34, and 74–79 do not teach or suggest a subscriber’s access to a varying number of different bitrate data streams. Br. 58–59; Reply 27–28; Final Act. 27–29; Ans. 21– 22. Specifically, Appellants contend: [P]aragraphs [74–79] merely indicate to encode video content at multiple different bitrates. There is no indication of providing the subscribers access to a varying number of different bitrate data streams including the first data stream and the second data stream. There is no indication that the number of available bitrate streams in Nilsson changes (there are six encoded streams). There is no indication that Panigrahi or any other cited reference would vary the number of encoded data streams available for delivery to a client. Br. 59. Appellants further contend: “Nilsson indicates to generate 6 bitrate streams[, p]roviding access to a fixed number of data streams[.] . . . Applicants do not understand how this [is] equivalent to the claimed invention.” Reply 28. Appeal 2018-003543 Application 13/678,593 27 We are unpersuaded. Appellants mischaracterize the rejection. The Examiner cites Panigrahi—not Nilsson—as teaching a varying number of different bitrate data streams (prepped content) available to subscribers. Final Act. 4; see also supra 8–9. The Examiner cites Nilsson as teaching a subscriber device that requests a video sequence (clip) at one of multiple available bitrates. Final Act. 27–29; see also Nilsson ¶¶ 7 (defining sequences), 33–34 (stating a subscriber device requests a sequence), 74–79 (stating a sequence is offered at different bitrates, e.g., sequence_A1 encoded at first and highest qualities). For the foregoing reasons, we are unpersuaded of error and accordingly sustain the rejection of claim 48. DECISION We affirm the Examiner’s rejection of claims 1–12, 14–19, 29–45, and 47–55. We reverse the Examiner’s rejection of claims 13, 20, and 46. 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-IN-PART Copy with citationCopy as parenthetical citation