DETAILED ACTION
This Office Action is with regard to the most recent papers filed 11/14/2025.
Response to Arguments
Applicant’s arguments filed 4/11/2025 have been fully considered, but appears to broadly assert that the amended portions of the instant claim are not taught by the prior art. However, as provided below, such language is considered to be disclosed at least by Johns, and thus the instant claim stand rejected for the reasons provided below.
On pages 8-9, Applicant argues that the claimed manifest includes a location for both the first and second segments of the content, while Johns provides a first manifest that identifies a first set of content segments and a second manifest subset, where the second manifest then identifies the second set of content segments. However, in Johns, the first and second manifest subsets are both parts of the same manifest file (Johns: Paragraph [0008]), where the portions of the manifest provided to the client over time. The instant claim does not provide how the determination relates to information that has already been provided to the client, but instead merely requires an instruction to deliver the content from a different node, which is performed in Johns within the second manifest subset. If Applicant intends for the server to change a previously provided location, the instant claim should be amended to provide this level of detail.
Applicant proceeds to argue that on pages 9-10 that the instant claims recites three components (a first server, a first node, and a second node) while in Johns, the content and the manifest come from the same device. However, the first node and the second node are recited as being different, while there is no such requirement that the first server is different from any other component, meaning the first server could be combined with one of the first and second nodes and still meet the instant claim language. Further, in paragraph [0031], the manifest includes location information, where after the first manifest subset is provided, an appropriate storage location is resolved, which indicates that the server providing the manifest is not necessarily the same as the node providing the content, as there would be no need to resolve a location if the two were the same.
Applicant then argues the combination of Doucette with Johns on pages 10-11. However, Doucette is only provided to teach the concept of using a planned maintenance as a reason to change node providing the content in Johns. It is noted that the test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981). In this case, Doucette teaches the use of scheduled maintenance to make changes in a network, which when applied to Johns, would be a reason to change the node that is to provide the second set of segments. Further, as previously noted, the instant claim fails to provide an explicit requirement that the planned maintenance is the reason for the change or that the first server has any actual knowledge of the planned maintenance. For instance, a maintenance could be planned for the time period that the content is being provided, where the first server determines that the second segment should be delivered from the second node because the first node is no longer available (where the first server would only know this because the first node is unreachable, not because of any access to information regarding the planned maintenance).
Accordingly, as each of Applicant’s arguments appear to argue details that are not required by the instant claims, the arguments cannot be deemed persuasive. Further, with regard to the application of Doucette, even if the instant claims were amended to require knowledge of the planned maintenance and that the determination is based on this knowledge, the general teachings of Doucette would have provided a suggestion to make a change to the service of the content based on a planned maintenance (where, again, the details regarding the VMs and migration of Doucette are not relied upon in the combination).
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.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-15 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-24 of U.S. Patent No. 11,323,498. Although the claims at issue are not identical, they are not patentably distinct from each other because the instant claims are substantially within the scope of the claims of ‘498 (e.g. claims 1-5 (as well as similar claims 6-10 and 11-15) map to claims 1, 5, 6, 13, and 14, respectively), and are thus deemed to be an obvious variation.
Double Patenting
Claims 1-15 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-24 of U.S. Patent No. 11,770,430. Although the claims at issue are not identical, they are not patentably distinct from each other because the instant claims are substantially within the scope of the claims of ‘430, and are thus deemed to be an obvious variation.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 1-15 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 2014/0280746 (Johns) in view of US 8,224,885 (Doucette).
With regard to claim 1, Johns discloses a system for delivering content to a device, the system comprising: a first server configured to:
receive a request from a device for a manifest associated with a particular content (Johns: Figure 3 and Paragraph [0039]);
determine to include in the manifest a plurality of locations associated with at least a first node separate from the first server (Johns: Paragraphs [0022], [0037], and [0047]. A manifest is provided using a network component (e.g. a directory server), where the manifest identifies storage locations (first node).) to serve a corresponding plurality of segments associated with the content (Johns: Paragraphs [0039]-[0041]), the plurality of segments comprising at least a first segment and a second segment (Johns: Paragraphs [0039]-[0041]);
transmit the manifest to the device to provide the device with the locations from which to sequentially request segments associated with the content (Johns: Paragraphs [0039]-[0041]);
the first node configured to transmit at least a first segment of the content towards the device (Johns: Figure 3 and Paragraph [0038]);
wherein the first server is further configured to:
prior to a planned maintenance of the first node and after the device has requested the first segment of the content, determine that the second segment of the content should be delivered to the device from a second node different than the first node, wherein the first node and the second node are in the same network (Johns: Paragraphs [0039]-[0041] and [0024]); and
responsive to the determination that the second segment of the content should be delivered to the device from the second node, instructing the device to retrieve the second segment and subsequent segments of the content from the second node (Johns: Paragraphs [0039]-[0041]); and
the second node configured to transmit the second segment and subsequent segments towards the device (Johns: Paragraphs [0039]-[0041]).
Johns fails to disclose, but Doucette teaches wherein the planned maintenance is planned to occur after the device requesting the first segment of the content and before a last segment of the content has been delivered to the device (Doucette: Column 1, lines 44-51. The concept of having scheduled maintenance was known in the art, where Doucette presents that it was known to perform migration operations for sessions for different reasons, including that there is a scheduled maintenance (where migration would be performed for current sessions). When this is combined with the system of Johns, such a maintenance would mean that the server serving the content would no longer be an appropriate location (Johns: Paragraph [0023]), which would trigger the process of Johns to find a new appropriate location, such as the next nearest server location.).
Accordingly, it would have been obvious to one of ordinary skill in the art at the time of filing to have the planned maintenance occur after the first segment is requested and before a last segment is requested to allow for the maintenance of the servers to occur, in accordance with typical practice, while leveraging the process of Johns to direct the stream to an appropriate server, which would be, for example, the most local server that is available. As a note, the planned maintenance appears to amount to little more than an intended use of the process of the instant claim (e.g. to change servers when a planned maintenance occurs), where none of the actual functions performed appear to be impacted by the planned maintenance other than providing the timing (e.g. no device needs to be aware of the planned maintenance, no schedules are shared, the system does not access any information to determine when to hand off the sessions, etc.).
With regard to claim 2, Johns discloses that the determination that the second portion of the content should be delivered to the device from the second node comprises a determination that the second node is the optimal node in a plurality of network nodes for delivering the content to the device (Johns: Paragraphs [0040] and [0004]. The goal of the disclosure of Johns is to provide the optimal node for serving the content, where the new node to serve the content would be determined to be the optimal node. It is noted that lacking the basis for determining that a node is “optimal,” any criteria can be used to determine an optimal node, where the only requirement for the claim language is that the second node is somehow better (more optimal) than the first node).).
With regard to claim 3, Johns discloses that the server is configured to receive from a third node in the network an indication that the second portion of the content and any further portions of the content should be delivered to the device from the second node (Johns: Figure 5 and Paragraph [0040]. Lacking specific details of the third node and what constitutes an “indication,” any criteria that would cause the determination that the content should be from the second node (which could be the same or a different node from the first node) would constitute such an indication, where network policies can be used to make the change as well as a resolved location (Johns: Figure 5, 506).).
With regard to claim 4, Johns discloses that the determination that the first portion of the content should be delivered to the device from the first node comprises a determination that the first node is the geographically closest node in a plurality of network nodes for delivering the content to the device (Johns: Paragraph [0040]-[0041]. Changing the device’s location results in a different device being used, thus, for at least a plurality of nodes (the first and the second node), the closest is used.).
With regard to claim 5, Johns discloses that the first node comprises a network cache node (Johns: Paragraph [0032]).
With regard to claims 6-15, the instant claims are similar to claims 1-5, and are rejected for similar reasons.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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SCOTT B. CHRISTENSEN
Examiner
Art Unit 2444
/SCOTT B CHRISTENSEN/Primary Examiner, Art Unit 2444