DETAILED ACTION
This is in response to the application filed on July 18th 2024, in which claims 1-30 are presented for examination.
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Priority
Applicant’s claim for the benefit of a prior-filed application under 35 U.S.C. 119(e) or under 35 U.S.C. 120, 121, 365(c), or 386(c) is acknowledged.
Information Disclosure Statement
The information disclosure statements (IDS) submitted on 7/23/24 are in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
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 1-30 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-30 of U.S. Patent No. 12,081,453 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because the claims from the ‘453 reference patent anticipate the pending claims. Overall, the pending claims are simply apparatus and non-transitory medium versions of the method claims in the ‘453 patent. The ‘453 patent only contains method claims. The pending application only contains apparatus, non-transitory medium, and system claims. There are no method claims in the pending application. In lieu of a table, applicant is instructed that method claim 21 of the ‘453 reference patent directly corresponds to (i.e. anticipates) pending independent claims 10, 17 and 24. Likewise, method claim 28 directly corresponds to pending independent claims 1, 4 and 7. Furthermore, pending dependent claims 2-3, 5-6 and 8-9 correspond to claims 29-30 of the ‘453 reference patent; while pending claims 11-16, 18-23 and 25-30 correspond to claims 22-27 of the ‘453 reference patent.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Melsen et al. US 2011/0296482 A1 discloses a method for media streaming (abstract) that uses dynamic resource control to deny/reject a user request for a media stream and send a user a message (Fig. 3, paragraph 28).
Joch et al. US 2014/0181266 A1 discloses receiving a request from a client for a new media session and issuing a denial action (e.g. indication) when the request would result in insufficient bandwidth (paragraph 185).
Phillips et al. US 10,142,259 B2 discloses an adaptive bitrate media stream that sends conflict notification messages to clients when a requested stream violates a bitrate threshold (abstract).
White US 2014/0067859 A1 discloses evaluating a user request to determine whether it can be satisfied by considering the bandwidth of the system (paragraph 29).
Salinger US 2012/0054312 A1 discloses a dynamic load balancing system for video streams (abstract) that determines whether bandwidth is available for a newly requested stream before streaming (Fig. 5, paragraph 53).
Udani et al. US 8,356,110 B2 discloses a user having a shared pool of bandwidth for media streaming which comprises a maximum amount and in response to receiving a request for a new media stream, determine whether the combined streams exceed the maximum amount (abstract) and issue a grant or rejection indication to the user when appropriate (Fig. 5).
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/JASON D RECEK/Primary Examiner, Art Unit 2458