TELEFONAKTIEBOLAGET L M ERICSSON (PUBL)

Patent Trials and Appeals Board

Nov 3, 2020

2020002305 (P.T.A.B. Nov. 3, 2020)

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.
14/421,697 02/13/2015 Frederic Gabin 3602-1006-US2 8368
6449 7590 11/03/2020
ROTHWELL, FIGG, ERNST & MANBECK, P.C.
607 14TH STREET, N.W.
SUITE 800
WASHINGTON, DC 20005
EXAMINER
SPARKS, JONATHAN A
ART UNIT PAPER NUMBER
2459
NOTIFICATION DATE DELIVERY MODE
11/03/2020 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):
PTO-PAT-Email@rfem.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte FREDERIC GABIN and THORSTEN LOHMAR
____________________

Appeal 2020-002305
Application 14/421,697
Technology Center 2400
____________________

Before ROBERT E. NAPPI, CARL W. WHITEHEAD JR, and SHARON
FENICK, Administrative Patent Judges.

NAPPI, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
final rejection of claims 1 through 25. Oral arguments were heard on
October 14, 2020. A transcript of the hearing will be added to the record in
due course. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a). According to Appellant, Telefonaktiebolaget LM Ericsson is the
real party-in-interest. Appeal Br. 2.
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CLAIMED SUBJECT MATTER
The claims relate generally to techniques for providing multimedia
services to a user device. The device may be an adaptive player that selects
the media quality for the multimedia service being streamed to the device. If
a fixed quality source of the media is available it is indicated to the user
device to use that media source. Spec. 1, 4. Claim 1 is reproduced below.
1. A method for providing media content to an adaptive
HTTP streaming player, the method comprising the steps of:
receiving a HTTP request from the adaptive HTTP
streaming player requesting the media content;
identifying the media content as media content being
available on a fixed quality interface, said interface providing
data with a fixed data quality;
determining a representation preference indication of the
media content provided on the fixed quality interface, wherein
the representation preference indication indicates a preferred
representation of the media content; and
signaling the representation preference indication to the
adaptive HTTP streaming player in order to instruct the
adaptive HTTP streaming player to use the preferred
representation of the media content for requesting the media
content being provided on the fixed quality interface.

REJECTIONS
The Examiner rejected claims 16 and 21 under 35 U.S.C. § 112, ¶ 2,
as being indefinite. Final Act. 7–9. 2

2 Throughout this Decision we refer to the Appeal Brief filed September 9,
2019 (“Appeal Br.”); Reply Brief filed January 31, 2020 (“Reply Br.”);
Final Office Action mailed March 8, 2019 (“Final Act.”); and the
Examiner’s Answer mailed December 31, 2019 (“Ans.”).
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The Examiner rejected claims 1, 3, 4, 7 through 11, 13, 14, 17 through
19, and 22 through 25 under 35 U.S.C. § 102 as anticipated over Cherian
(US 2013/0007814 A1; pub. Jan. 3, 2013). Final Act. 10–14.
The Examiner rejected claims 2, 5, 6, 12, 15, and 20 under 35 U.S.C.
§ 103 as unpatentable over the combined teachings of Cherian, and Lotfallah
(US 2012/0209952 A1; pub. Aug. 16, 2012). Final Act. 15–17.
The Examiner rejected claims 16, and 21 under 35 U.S.C. § 103 as
unpatentable over the combined teachings of Cherian, and Zhang
(US 2013/0294354 A1; pub. Nov. 7, 2013). Final Act. 17–18.
ANALYSIS

Rejection based upon 35 U.S.C. § 112, ¶ 2.
The Examiner rejects claims 16 and 21 as the limitation directed to
“the link quality of the provided data” is nonsensical and
is conflating two separate concepts including i) measuring
changes in the link quality [of a link]; and ii) measuring
changes in the quality of [received] provided data.
Furthermore, no data has actually been provided by the HTTP
entity in claim 16, nor in claim 13 [from which it depends], so
the measurements of anything pertaining to the data cannot be
performed because no data has been actually provided.
Final Act. 7.
Appellant argues that the Examiner’s rejection of claims 16 and 21 is
in error. Appeal Br. 8–10, Reply Br. 2–3. Appellant argues that the
Specification identifies that in prior art systems the client takes a
measurement of the downloading rate which may result in delay and that the
Appellant’s invention the performance of the measurement is discontinued
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when the client is receiving the broadcast signal. Id. 8–9 (citing Fig. 1,
pages 2, 3, 7–8). Appellant states the “specification explains that measuring
changes in the link quality of the provided data refers for example to the
type of download rate measurements that adaptive HTTP streaming players
perform, in order ‘to adapt the reception rate of media data or media content
to the available radio link rate.’” Id. at 7 (citing Specification 7 and 14).
Appellant’s arguments have not persuaded us of error in the
Examiner’s rejection of claims16 and 21 upon 35 U.S.C. § 112, ¶ 2. Each of
claims recite “measuring changes in the link quality of the provided data.”
Neither of the claims recite antecedent basis for “the link” or “the provided
data” as such is it not clear what link the claim is referring to, or what the
“provided data” is referring to. While Appellant’s Specification does
discuss monitoring link quality as part of the process that adaptive HTTP
streaming player regularly perform, neither claim 16 or claim 21 recites that
that the adaptive HTTP streaming player is actively using a link or receiving
data. Thus, Appellant’s arguments are not persuasive and we sustain the
Examiner’s rejection of claims 16 and 21 upon 35 U.S.C. § 112, ¶ 2.

New Rejection based upon 35 U.S.C. § 112, ¶¶ 1&2.

We enter a new rejection of claims 22 through 24 under 35 U.S.C. §
112, ¶¶ 1 and 2. Independent claim 22 recites a “client device comprising an
adaptive HTTP streaming player device comprising: a first receiver adapted
to receiver an HTTP request from the adaptive HTTP streaming player” and
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“a HTTP proxy entity comprising: a second sender adapted to send a HTTP
request for provision of media content to a HTTP entity.” We consider these
limitations to ambiguous, as it is unclear if Appellant is claiming the “HTTP
streaming player” receives a request from itself or another “HTTP streaming
player”, the recitation of the “ HTTP proxy entity” includes a similar
ambiguity. As such we consider claims 22 through 24 to be ambiguous and
we reject them under 35 U.S.C. § 112, ¶ 2. Further, in as much as the claim
is reciting the HTTP streaming player and HTTP proxy entity are receiving
and sending requests to themselves, we do not find that Appellant’s
Specification demonstrates Appellant had possession of this limitation. As
such we reject claims 22 through 24, as failing to meet the written
description requirement of 35 U.S.C. § 112, ¶ 1.

Rejection of independent claim 1 based upon 35 U.S.C. § 102

Appellant argues that the Examiner’s rejection of claim 1 under 35 U.S.C.
§ 102 is in error as Cherian does not teach the limitation directed to
identifying the media content as media content available on a fixed quality
interface. Appeal Br. 12–14, Reply Br. 3–5. Appellant argues that the
Examiner’s finding that Cherian teaches a proxy component which identifies
the requested media is available on one or more interfaces is in error.
Appeal Br. 13. Appellant argues that nothing in the cited teachings of
Cherian cited by the Examiner: “shows that media content is identified (i.e.
established as) being media content available on a fixed quality interface.
Instead, and as explained above, Cherian teaches that when too many users
request unicast content, that a proxy intercepts those requests and then
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initiates a broadcast session.” Id. 13–14. Further, in response to the
Examiner’s statement that the limitation of “identifying” is inherent in
Cherian, Appellant argues that inherency is not supported based upon a
factual inquiry. Reply Br. 3–4.
The Examiner in response to Appellant’s arguments identifies that the
claim term “fixed quality interface” when interpreted in light of the
Specification “means that the client does not decide the quality, but the
network provides segments at a given, fixed quality, or some segments are
available . . . with a fixed quality.” Answer 6–7 (citing Specification ¶ 42).
Further, the Examiner finds that Cherian teaches the proxy component
identifies the requested media being available to the client on one or more
interfaces. Id. (citing Cherian ¶ 64, 69–72, 86, 88). The Examiner reasons:
The selection of media content, by the proxy in Cherian, must
include an inherent “identification” step in order for the proxy
to then select/determine which representations to send to the
client device. That is, in order for the proxy to select
representations - it must first identify what is to be
selected/determined.
Id. at 7–8.
Appellant’s arguments have not persuaded us of error in the
Examiner’s rejection. We concur with the Examiner’s claim interpretation
of “fixed quality interface” as it is consistent with the Specification and
Appellant’s have not shown error in the interpretation. Further, we concur
with the Examiner that Cherian teaches the proxy component identifies the
requested media being as available to the client on one or more interfaces.
Specifically, Cherian identifies that the proxy may modify the Media
Presentation Description (MPD) to identify to the client one or more
representations or a representation at a broadcast rate. Cherian ¶ 69, 70.
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The MPD is used by the client to address and source requested media. Id.
¶ 71. Thus, Cherian teaches the proxy (which the Examiner equates to the
claimed HTTP proxy entity) dictates to the user equipment (equated to the
claimed HTTP media player) the requested media being on one or more
interfaces. As Cherian teaches that the proxy may only dictate one
representation (by either dictating: use of the one unicast representation or
use of the broadcast representation), we consider Cherian to teach a fixed
quality interface as claimed. With respect to the limitation “identifying the
media content as being available on a fixed quality interface,” Appellant’s
Specification discusses the step of “identifying” as determining whether the
media content with a fixed quality is available. See Specification p. 11, ll.
11–27. We concur with the Examiner that Cherian teaches identifying the
content’s availability at a fixed quality. Cherian teaches that the MPD
describes the representation for delivery of the requested content (see e.g. ¶
693), as such there is necessarily a determination that the content is the
requested content, and as discussed above the MPD can include a fixed
quality interface as claimed. Thus, Appellant’s arguments have not
persuaded us of error and we sustain the Examiner’s rejection of claim 1.

Rejection of independent claim 13 based upon 35 U.S.C. § 102

Appellant argues that the Examiner’s rejection of claim 13 under 35
U.S.C. § 102 is in error for the reasons discussed with respect to claim 1 and

3 See also paragraph 75 “The MPD 952 may describe a URL address from
which to fetch media data for the UE, for unicast delivery. Alternatively, the
URL address may appear on the receiving device for broadcast delivery.”
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because Cherian does not teach the limitation of a HTTP streaming player
sending a HTTP request to a HTTP entity as claimed. Appeal Br. 14, Reply
Br. 5–8. Appellant argues that:
in Cherian the UE sends an HTTP request to a content server.
The DASH proxy of Cherian then intercepts and redirects the
HTTP request. The UE therefore does not send the HTTP
request to the HTTP entity, rather it is sent to a content server
that is separate from the HTTP entity.

Appeal Br. 14. Further, Appellant argues that Cherian only ever teaches the
user equipment sends a content request to a streaming server, and while that
request may be intercepted by the proxy, it would not make sense for the
user equipment to communicate directly with the proxy. Reply Br. 12–13.
The Examiner responds to Appellant’s arguments by identifying that
Cherian teaches the user equipment (equated to the claimed HTTP streaming
player) communicates directly with the proxy (equated to the claimed HTTP
entity). Answer 8 (citing Cherian ¶ 68 and Fig. 8). Further, the Examiner
finds that the proxy intercepting the request also meets the claim as “[t]he
claim does not require that the request is addressed specifically to the HTTP
entity, but rather the claim requires that an HTTP request be sent to the
HTTP entity.” Id. at 9.
Appellant’s arguments have not persuaded us of error. As discussed
above, Appellant’s arguments have not persuaded us of error in claim 1.
Appellant’s further arguments are not persuasive as they are not
commensurate with the scope of the claim. Claim 13 recites: “A method for
providing media content in an adaptive HTTP streaming player, the method
comprising the steps of: sending a HTTP request to a HTTP entity for
provision the media content.” The claim does not recite that the “HTTP
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streaming player” sends the “HTTP request” to the “HTTP entity” or that the
HTTP request is addressed to the HTTP entity. Thus, the claim is broad
enough to encompass a request sent to the proxy by its ability to intercept
the request. As such Appellant’s arguments have not persuaded us of error
and we sustain the Examiner’s rejection of claim 13.

Rejection of independent claim 17 based upon 35 U.S.C. § 102

Appellant argues that the Examiner’s rejection of claim 17 under 35
U.S.C. § 102 is in error because Cherian does not teach the limitation of: a
receiver to receive a request from a HTTP streaming player; that the
received HTTP request comprising an identifier identifying the media
content as content being provided on a fixed quality interface; and that the
interface provides data with a fixed data quality. Appeal Br. 15–16, Reply
Br. 8–9. Further Appellant argues:
The mere fact that the UE sends a request that may include an
identifier identifying the media content being requested does
not mean that the identifier identifies the media content as
content being provided on a broadcasting interface. Indeed, the
UE does not know whether the media content is being provided
on a broadcasting interface (it is a decision by the proxy
component in Cherian made after a threshold number of
requests are received for the same content).
Reply Br. 9.

The Examiner responds to Appellant’s arguments identifying that
Cherian teaches the proxy device determines that the request media is
available at a fixed quality. Answer 9 (citing Cherian ¶¶ 69–72, 86).
Further the Examiner states:
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Cherian describes how the proxy sends a modified MPD back
to the client device, optionally with an attribute indicating the
preferred representation(s) for subsequent content request from
the client device (including broadcast representations)
(Cherian: Paragraphs [0069]-[0072][0088]-[0090]). The
content requests must contain an identifier of the media content
[being requested], the identifier identifying the media content.
This means that when the requested content is broadcasted
content, then the identifier in the request is identifying the
media content as content being provided on a broadcasting
interface (i.e. fixed quality interface).
Answer 9–10.
Appellant’s arguments have not persuaded us of error in the
Examiner’s rejection. Claim 17 recites an HTP entity comprising a receiver
that receives a request from the HTTP streaming player that comprises an
identifier identifying the media content as content being on a fixed quality
interface and said interface providing data with a fixed quality. Appellant’s
Appeal Brief, identifies this limitation as supported by Specification page 4,
lines 20–27, page 7 line 21 through page 8 line 4, and figures 2 and 4.
Appeal Br. 4–5. When interpreted in light of these sections of the
Specification and the Specification as a whole, we construe the limitation to
be directed to the receiver receiving a request with an identifier for media
content and the media content is on a fixed quality interface which provides
the media content. Appellant’s argument, on page 9 of the Reply Brief that
“the UE does not know whether the media content is being provided on a
broadcasting interface” is not commensurate with the scope of the claim. As
the claim does not recite that the user equipment knows the media content is
on a fixed quality interface. We concur with the Examiner’s findings that
Cherian teaches the claimed receiver.
As discussed above with respect to claim 1, we concur with the
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Examiner that the proxy device (claimed HTTP entity) identifies the
requested media on a fixed quality interface (such as a broadcast). Further,
as discussed above with respect to claim 13 we find that the proxy device
receives a request (intercepted request) from user equipment (claimed HTTP
streaming player). Thus, we find that Cherian teaches a receiver receiving a
request with an identifier for media content and the media content is on a
fixed quality interface which provided the media content. Thus, we are not
persuaded of error and sustain the Examiner’s rejection of claim 17.

Rejection of independent claim 22 based upon 35 U.S.C. § 102

Appellant’s argue that the Examiner’s rejection of claim 22 is in error
as for the same reasons as discussed with respect to claims 13 and 17.
Appeal Br. 17. Appellant further, argues that there is no teaching in Cherian
that the proxy device of Cherian is inside a client device. Id. 17.
As discussed above we now reject claim 22 as being indefinite, thus to
consider the Examiner’s rejection would require speculation as to the scope
of the claim. Our reviewing court has said that it is wrong to rely upon
speculative assumptions as to the meaning of claims when considering a
prior-art rejection. In re Steele, 305 F.2d 859, 863 (CCPA 1962).
Accordingly, we do not sustain the Examiner’s rejection of claim 22 and
dependent claims 23 through 24 under 35 U.S.C. § 102 as to ascertain the
scope of the claim would require speculation.

Rejection of claims 16 and 21 based upon 35 U.S.C. § 103

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Appellant argues that the Examiner’s rejection of claims 16 and 21
under 35 U.S.C. § 103 is in error for the reasons discussed with respect to
claim 13 and because the combination of Cherian and Zhang fails to teach a
processor adapted to measure changes in the link quality of the provided
data and the HTTP streaming player is to stop measuring the changes in link
quality of upon reception of the representation of the representation
preference as claimed. Appeal Br. 19–22, Reply Br. 11–12.
As discussed above we sustain the Examiner’s rejection of claims 16
and 21 as being indefinite, thus such to consider the Examiner’s obviousness
rejection would require speculation as to the scope of the claims. Our
reviewing court has said that it is wrong to rely upon speculative
assumptions as to the meaning of claims when considering a prior-art
rejection. In re Steele, 305 F.2d 859, 863 (CCPA 1962). Accordingly, we
do not sustain the Examiner’s rejection of claims 16 and 21 under 35 U.S.C.
§ 103 as to ascertain the scope of the claim would require speculation.

Rejection of claims 5, 12, and 20 based upon 35 U.S.C. § 103

Appellant argues that the Examiner’s rejection of claims 5, 12, and 20
under 35 U.S.C. § 103 is in error for the reasons discussed with respect to
claims 1 and 17 and because the additional teachings of Lotfallah do not
remedy the deficiencies noted in the rejection of claims 1 and 17. Appeal
Br. 23. Further, Appellant argues that the Examiner has failed to provide
any motivation to modify Cherian, and there is no explanation as to how the
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combination teaches the step of identifying whether the media content with a
fixed quality is available in cache as claimed. Appeal Br. 24, Reply Br. 12.

The Examiner responds to Appellant’s arguments stating:
Cherian discloses broadcast [content] delivery involving
feeding a cache on the UE broadcast module 1004 (Cherian:
Paragraphs [0075][0080][0081]). Cherian discloses media
content with a fixed quality. However, Cherian does not
explicitly disclose wherein the step of identifying [from Claim
1] comprises determining whether the media content with a
fixed quality is available in a cache. To this, the Examiner
relied upon Lotfallah who discloses a System that utilizes
multiple intermediary devices to cache content closer to users in
order to provide the user with the requested content faster
according to client capabilities, preferences, performance
metrics, etc. (Emphasized line being the motivation one of
ordinary skill in the art would have for combining the teachings
of Cherian and Lotfallah) (Lotfallah: The Abstract and
Paragraphs [0043] [0044]). Thus, the Examiner finds that
when the proxy streaming component in Cherian, is modified to
include the caching techniques of Lotfallah, the proposed
combination discloses the above argued limitation and
Appellant's arguments are unpersuasive.
Answer 15.
Appellant’s arguments have not persuaded us of error in the
Examiner’s obviousness rejection of claims 5, 12, and 20. As discussed
above, Appellant’s arguments have not persuaded us of error in the
Examiner’s rejection of claim 1 and 17. As discussed above with respect to
claim 1, we concur with the Examiner’s finding that Cherian teaches the
claim 1 limitation of identifying the fixed quality. Cherian, in combination
with Lotfallah, teaches the data in a cache. Answer 15, Final Act 16.
Appellant’s argument that the Examiner has not provide a motivation to
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combine the references, relies upon the teaching, suggestion, or motivation
(TSM) test to determine obviousness. In KSR, the Supreme Court rejected
the rigid application of the teaching, suggestion, or motivation (TSM) test in
favor of a more expansive and flexible approach to the determination of
obviousness. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 415 (2007). The
determination of obviousness can be supported with an “articulated
reasoning with [a] rational underpinning to support the legal conclusion of
obviousness.” Id. In this case, the Examiner provides a reasoned rationale
why the skilled artisan would take the cited teaching of each reference and
combine them explaining that Lotfallah is relied upon to teach that the fixed
quality interface can be a cache, and has identified a reasoned rational
supported by evidence, the use of cache allows the content to be provided
faster (Answer 15 citing Lotfallah Abstract and ¶¶ 43, 44). Appellant’s
arguments have not addressed the Examiner’s rationale or shown error in the
Examiner’s reasoning and thus has not persuaded us it is unreasonable.
Accordingly, we are not persuaded of error and we sustain the Examiner’s
obviousness rejection of claims 5, 12, and 20.

Rejections of remainder of the dependent claims
Appellant has not presented arguments directed to the Examiner’s
rejections of claims 3, 4, 7 through 11, 14, 18, 19, and 25 under 35 U.S.C.
§ 102 and of claims 2, 6, and 15 under 35 U.S.C. § 103. Accordingly, we
sustain these rejections for the same reasons as discussed with respect
independent claims 1, 13 and 17.
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CONCLUSION
We affirm: the Examiner’s rejection of claims 16 and 22 under 35
U.S.C. § 112; the Examiner’s rejection of claims 1, 3, 4, 7 through 11, 13,
14, 17 through 19, and 25 under 35 U.S.C. § 102; the Examiner’s rejection
of claims 2, 5, 6, 12, 15 and 20 under 35 U.S.C. § 103 and we reverse: the
Examiner’s rejections of claims 22 through 24 under 35 U.S.C. § 102 and
claims 16 and 21 under 35 U.S.C. § 103. We enter a new ground of
rejection of claims 22 through 24 under 35 U.S.C. § 112 ¶¶ 1, 2.

In summary:
Claim
Rejected
35
U.S.C. §
Basis/References Affirmed Reversed New
Ground
16, 21 112 ¶ 2 Indefiniteness 16, 21 22–24
112 ¶ 1 Written
Description
22–24
1, 3, 4, 7–11,
13 14, 17–19,
22–25
102 Cherian 1, 3, 4, 7–11, 13
14, 17–19, 25
22–24
2, 5, 6, 12, 15,
20
103 Cherian,
Lotfallah
2, 5, 6, 12, 15,
20

16, 21 103 Cherian, Zhang 16, 21
Overall
Outcome
1–21, 25 22–24
This Decision contains a new ground of rejection pursuant to 37
C.F.R. § 41.50(b). This section provides that “[a] new ground of rejection . .
. shall not be considered final for judicial review.”
37 C.F.R. § 41.50(b) also provides that the Appellant, WITHIN TWO
MONTHS FROM THE DATE OF THE DECISION, must exercise one of
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the following two options with respect to the new ground of rejection to
avoid termination of the appeal as to the rejected claims:
(1) Reopen prosecution. Submit an appropriate amendment of the
claims so rejected or new evidence relating to the claims so rejected, or both,
and have the matter reconsidered by the examiner, in which event the
prosecution will be remanded to the examiner. . . .
(2) Request rehearing. Request that the proceeding be reheard under
§ 41.52 by the Board upon the same record. . . .
No time period for taking any subsequent action in connection with this
appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). See 37 C.F.R. §
41.50(f).
AFFIRMED-IN-PART