DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
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Claims 1-21 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 7, 10, 16, 21, 24 and 32 of U.S. Patent No. 10,708,335. Although the claims at issue are not identical, they are not patentably distinct from each other because both inventions are drawn to dynamic bit rate encoding and distribution of content. The instant application claims 1, 11 and 21 are broader in every aspect than the patent claims 1 and 21 and are therefore an obvious variant thereof.
Claims 2-5 and 12-15 correspond to claim 1.
Claims 6 and 16 correspond to claim 7.
Claims 7 and 17 correspond to claim 16.
Claims 8 and 18 correspond to claim 10.
Claims 9 and 19 correspond to claim 32.
Claims 10 and 20 correspond to claim 24.
Claim Rejections - 35 USC § 103
The following is a quotation of pre-AIA 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 1-5, 7, 10-15, 17 and 20-21 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Panigrahi et (US PG Pub No. 2008/0052414), in view of Zhang et al (US PG Pub No. 2009/0300204).
Regarding claims 1, 11 and 21, Panigrahi et al teaches a method (Abstract) comprising:
receiving encoder control information indicating encoding of segments of content into a varying number of different bit rate data streams (i.e. processing parameters and network resource availability in the form of target values, and selects the best available set of parameters from which to produce the processed streams) (Para. 0062),
distributing to multiple subscribers in a network environment (i.e. each one of the respective receiving devices can receive a corresponding different customized video content) (Figure 2; Para. 0031-33).
The reference is unclear with respect to producing content access information, the content access information indicating availability of the segments of content encoded according to the varying number of bit rate data streams; and content access information.
In similar field of endeavor, Zhang et al teaches producing content access information, the content access information indicating availability of the segments of content encoded according to the varying number of bit rate data streams; and content access information (i.e. generates an index file that describes characteristics of the different segments that are created) (Abstract; Fig. 1; Para. 0034). Therefore, it would have been obvious to one of ordinary skill in the art to modify the reference at the time the invention was made for the purpose to optimize the bit rate specified such that the start-up latency and the glitching are minimized or eliminated.
Regarding claims 2 and 12, Panigrahi and Zhang, the combination teaches the segments of content are encoded into the varying number of different bit rate data streams with respect to a threshold value (i.e. Various data streams with multiple Qscale are encoded based on parameters) (Panigrahi: Figure 4; Para. 0044, 0072-73).
Regarding claims 3 and 13, Panigrahi and Zhang, the combination teaches the varying number of different bit rate data streams are retrievable by the multiple subscribers via the distributed content access information (Panigrahi: Figure 2; Para. 0031-33 and Zhang: Abstract; Fig. 1; Para. 0034).
Regarding claims 4 and 14, Panigrahi and Zhang, the combination teaches each of the multiple subscribers selectively retrieve the encoded segments of content from the varying number of bit rate data streams (Panigrahi: Figure 2; Para. 0031-33 and Zhang: Abstract; Fig. 1; Para. 0034).
Regarding claims 5 and 15, Panigrahi and Zhang, the combination teaches as specified by the encoder control information, varying the number of bit rates of encoding the segments of content (Panigrahi: Figure 4; Para. 0044, 0072-73).
Regarding claims 7 and 17, Panigrahi and Zhang, the combination teaches dynamically adjusting the number of different bit rate data streams into which the segments of content are encoded based at least in part on bandwidth requirements associated with the segments (Panigrahi: Para. 0026-27 and 0051-52).
Regarding claims 10 and 20, Panigrahi and Zhang, the combination teaches the varying number of different bit rate data streams include a first bit rate data stream and a second bit rate data stream, the first data stream encoded at a higher bit rate than the second data stream (i.e. encoded content falls within range of bitrate depending on content type (Panigrahi: Para. 0072-73); and
wherein a first segment of the first data stream is not produced at a particular bit rate in response to a condition in which an appropriate level of image quality for the first segment is provided by a respective segment of the second data stream (i.e. 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) (Panigrahi: Para. 0048, 0072-73).
Claims 6 and 16 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Panigrahi et, in view of Zhang, further in view of Gordon et al (US PG Pub No. 2005/0034155).
Regarding claims 6 and 16, Panigrahi and Zhang, the combination teaches varying bit rates of encoding the segments of content at which the segments of content are received from an inputted data stream, as discussed above.
The combination is unclear with respect to encode based at least in part on a time of day.
Gordon discloses varying bit rates of encoding the segments of content based at least in part on a time of day at which the segments of content are received on the inputted data stream (Fig. 7 and Par. [0080]). Therefore it would have been obvious to one of ordinary skill in the art at the time the invention was made to modify the combination in associating with the time of day, as taught by Gordon, in order to take advantage of the EPG functionality (Gordon: Par. [0076]).
Claims 8 and 18 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Panigrahi and Zhang, further in view of Cholas et al (US PG Pub No. 2011/0083145).
Regarding claims 8 and 18, Panigrahi and Zhang, the combination teaches receiving the encoder control information from an out-of-band signal with respect to an inputted data stream on which the segments of content are received.
Cholas discloses receiving the encoder control information from an out-of-band signal with respect to the inputted data stream on which the segments of content are received (Par. [0040], lines 11-17 disclosing independent of the received QAM signal, the CPD 202 also receives a control signal including control information from the headend 102. The control signal, in some embodiments, is received on a frequency band which is different from the one used for communicating the content delivery signal and is thus sometimes referred to as being received out of band.). Therefore it would have been obvious to one of ordinary skill in the art at the time the invention was made to modify the combination in associating with the out-of- band signal, as taught by Cholas, in order to take advantage of receiving control signal from different communication path (Cholas: Par. [0040]).
Claims 9 and 19 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Panigrahi and Zhang, further in view of Mclean et al (US PG Pub no. 2011/0129201).
Regarding claims 9 and 19, Panigrahi and Zhang, the combination is unclear with respect to the encoder control information indicates to eliminate encoding the segments of content on a selected one of the multiple different bit rate data streams to free bandwidth in a network over which portions of the encoded data streams are transmitted.
McLean discloses producing the encoder control information to eliminate encoding the segments of content on at least one of the multiple different bit rate data streams to free bandwidth in a network over which at least portions of the encoded data streams are transmitted (Par. [0022], lines 12-18 disclosing to continually free queue space, each media segment 18 that is added to the playback sequence 40 may be removed from the queue 30. To continually free memory for storing new content, each media segment 18 may also be removed from memory after being played in the customized playback sequence 40). Therefore it would have been obvious to one of ordinary skill in the art at the time the invention was made to modify the combination in associating with the eliminating the segments of content, as taught by McLean, in order to take advantage of free up memory space (McLean: Par. [0022]).
Conclusion
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/KUNAL LANGHNOJA/Primary Examiner, Art Unit 2425