James S. Manchester et al.

Patent Trials and Appeals Board

Sep 4, 2019

13678593 - (D) (P.T.A.B. Sep. 4, 2019)

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 2128 were previously cancelled.
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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.”
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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.
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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).
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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
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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.”).

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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
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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.
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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).
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(“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.
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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
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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
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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.
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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
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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
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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
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“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
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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).
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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.
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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.
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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
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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.
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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.
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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.
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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
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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.
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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