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 .
DETAILED ACTION
This office action is in response to amendment/reconsideration filed 6/18/2026, the amendment/reconsideration has been considered. Claims 1-20 are pending for examination, the rejection cited as stated below.
Response to Arguments
Applicant's arguments have been fully considered but they are not persuasive. The applicant argues the following issues.
(A) Rejection under 35 U.S.C. 102
Issue: The applicant argues with respect to claim 1 that Sharma fails to teach the claimed limitations “second determining ... that a measured network bandwidth available for video downloads is lower or equal to a lowest available video bitrate, and that the measured network bandwidth plus a difference between a highest available audio bitrate for the audio data and a lowest available audio bitrate for the audio data is greater than or equal to a selected bitrate for the video data” because “it does not quantify the amount of bandwidth freed by reducing audio bitrate, nor does it evaluate whether such freed bandwidth, when combined with measured network bandwidth, is sufficient to support a particular video bitrate.”
Examiner respectfully disagrees, because Shama’s disclosure, as cited in the rejection section, either expressly or inherently teaches the claimed limitations.
For example, Sharma discloses bringing up a degraded video quality to its desired bit rate level using the same amount of bandwidth saved from the audio bit rate reduction, see paragraphs [0069]-[0070], “the determining module 407 of Fig. 4 determines how much additional bandwidth is needed to bring the video quality level 601 up to or substantially above the minimum level 602. This amount of bandwidth then determines the amount by which the audio quality level is reduced. The additional bandwidth that is now available as a result of dropping the audio quality level is used to provide an increased video quality level”.
As disclosed, the additional bandwidth from the desired audio bit rate reduction has to be “available”, therefore a checking for availability is implied, in order to ensure that the reduction amount in audio quality level (additional bandwidth) that is needed to be shifted to the video side is actually available.
In other words, the available reduction amount in audio quality level has to be greater or equal to the amount of additional bandwidth needed to add to the currently available network bandwidth to achieve the selected video quality level. This condition can be expressed as:
Available audio quality reduction amount >= Additional bandwidth needed for the selected video quality level,
wherein Available audio quality reduction amount = current audio bit rate – a lowest available audio bitrate, and
wherein Additional bandwidth needed for desired video quality = selected video bit rate – current available network bandwidth.
As a result, the condition is:
current audio bit rate – a lowest available audio bitrate >= selected video bit rate – current available network bandwidth.
This condition can simply be rearranged to the following format:
current available network bandwidth + (current audio bit rate – a lowest available audio bitrate) >= selected video bit rate.
The current audio bit rate can be at a highest available audio bitrate, see [0070], “the audio quality level 603 upwards to a near maximum level (e.g., 512 Kbps)”; and [0102], “over time, approaches the maximum bit rate for the current conditions (e.g., device capabilities, bandwidth, etc.)”.
Therefore, at the time when the current audio bit rate is at a highest available audio bit rate, the condition becomes:
current available network bandwidth + (a highest available audio bit rate – a lowest available audio bitrate) >= selected video bit rate, which teaches the claimed limitations.
Therefore, Applicant’s arguments are not convincing. See also the remaining paragraphs cited in the rejection.
(B) Double Patenting Rejection
Issue: The applicant argues that the Double Patenting rejection is deficient and shall be withdrawn.
Examiner respectfully disagrees. See Examiner’s response and clarification in the corresponding rejection section below.
Claim Rejections - 35 USC § 102
3. In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
4. The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
5. Claims 1-20 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Sharma et al. (US 20200152234).
Regarding claim 1, limitations of a method as claimed corresponding to the limitations of the system recited in claim 8 are analyzed as discussed below in the rejection of claim 8. Particularly, Sharman discloses a computer-implemented method comprising: first determining, by at least one computer processor, there is a streaming discontinuity associated with data comprising video data at a first video bitrate and audio data at a first audio bitrate; second determining, in response to the first determination that there is the streaming discontinuity, that a measured network bandwidth available for video downloads is lower or equal to a lowest available video bitrate, and that the measured network bandwidth plus a difference between a highest available audio bitrate for the audio data and a lowest available audio bitrate for the audio data is greater than or equal to a selected bitrate for the video data; in response to the second determination, adjusting the first audio bitrate to a second audio bitrate during the streaming discontinuity, wherein the second audio bitrate is different from the first audio bitrate; and stream the data at the second audio bitrate (see similar discussion in the rejection of claim 8 below).
Regarding claims 2-7, additional limitations of the computer-implemented method that correspond to the additional limitations of a system in claims 8-14 are analyzed as discussed in the rejection of claims 8-14.
Regarding claim 8, Sharma discloses a computing system for performing adaptive audio bitrate selection (see figures 3-4), comprising:
one or more memories (one or more memories 114, 124 in content player and/or distribution infrastructure with computing system – see figures 1, 3-4, paragraphs 0011, 0038-0039, 0047, 0057-0059); and
at least one processor each coupled to at least one of the memories and configured to perform operations (e.g., processor 112, 122 each coupled to at least one of the memory 114, 124 and configured to perform operations – see figures 1, 3-4, paragraphs 0011, 0038-0039, 0047, 0057-0059) comprising:
first determining there is a streaming discontinuity associated with streaming data comprising video data at a first video bitrate and audio data at a first audio bitrate (determining there is a streaming discontinuity/switching of bitrates, using indicator or metadata indicating of variable bit rates, segment information, etc. associated with streaming data comprising video data at a first video bitrate and audio data at a first audio bitrate – see include, but are not limited to, paragraphs 0080, 0082, 0086, 0096-0100, 0105-0106, 0108, 0110) ;
second determining, in response to the first determination that there is the streaming discontinuity, that a measured network bandwidth available for video downloads is lower or equal to a lowest available video bitrate and that the measured network bandwidth plus a difference between a highest available audio bitrate for the audio data and a lowest available audio bitrate for the audio data is greater than or equal to a selected bitrate for the video data (second determining, in response to a first determination that there is the streaming discontinuing or changing/switching, that a network bandwidth available for video downloads is lower or equal to bit rate of minimum video quality level (Vmin)/lowest video playback bit rates and that network available for video plus bit rate of audio for the remain portion of available bandwidth is greater than or equal to a selected bitrate for video data – see include, but are not limited to, figure 6, paragraphs 0050, 0067, 0069-0071, 0088-0089, 0094, 0098, 0102, 0105-0106, wherein the “difference between highest available audio bitrate and lowest available bitrate for the audio signal” could be read as indicating line of audio quality level 603 which indicates difference between the highest available bitrate for video (e.g. near Vmin line after T4 and Amin line as shown in figure 6);
in response to the second determination, adjusting the first audio bitrate to a second audio bitrate during the streaming discontinuity, wherein the second audio bitrate is different from the first audio bitrate; and stream the data at the second audio bitrate (in response to the second determination based on first bit rate of video quality level, first bit rate of audio quality level, current available bandwidth, adjusting/switching the first audio bit rate to a second audio bit rate during the discontinuing/changing, wherein the second bitrate is different (lower or higher based on whether the available bandwidth decreasing or increasing) from the previous audio bitrate before switching, and stream the data of video and/or audio the second audio bit rate – see include, but are not limited to, figures 4-6, 9-11, paragraphs 0064, 0069-0070, 0087-0090, 0105-0107. See Examiner’s response to Applicant’s arguments section above for further clarification).
Regarding claim 9, Sharma discloses the computing system of claim 8, wherein the streaming discontinuity comprises an event of a rebuffer, an event of a streaming session paused by a user, or an event of an interruption on the data (e.g., rebuffering, freezing, dropping of bandwidth availability, not enough content in buffer, audio buffer has dropped below a specified amount of buffered data, etc. – see include, but are not limited to, paragraphs 0030, 0071, 0108).
Regarding claim 10, Sharma discloses the computing system of claim 8, wherein the selected bitrate is associated with previously downloaded information (selected bit rate is associated with/based on previously downloaded information/historical data of bitrate – see include, but are not limited to, figures 9-11, paragraphs 0078, 0101-0102, 0105).
Regarding claim 11, Sharma discloses the computing system of claim 8, wherein the operation of the adjusting the first audio bitrate to the second audio bitrate during the streaming discontinuity comprises: selecting an audio stream at the second bitrate (see include, but are not limited to, figures 6, 11, paragraphs 0069, 0089).
Regarding claim 12, Sharma discloses the computing system of claim 8, wherein the operations further comprise: selecting the second audio bitrate based on an adaptive audio bitrate selection process (selecting the second audio bit rate based on an adaptive audio bit rate selection process according to change in available bandwidth – see include, but are not limited to, figures 6, 11, and paragraphs 0069, 0088-0089, 0095).
Regarding claim 13, Sharma discloses the computing system of claim 8, the operations further comprising: subsequent to streaming the data at the second audio bitrate, third determining whether there is a subsequent streaming discontinuity associated with the data; fourth determining, in response to the third determination that there is a subsequent streaming discontinuity, that the measured network bandwidth available for video downloads is lower or equal to the lowest available video bitrate, that the selected bitrate for the video data is equal to the lowest available video bitrate, and that the measured network bandwidth plus the difference between the highest available audio bitrate for the audio data and the lowest available audio bitrate for the audio data is greater than or equal to the selected bitrate for the video data; and in response to the fourth determination, adjusting the second audio bitrate to the first audio bitrate during the subsequent streaming discontinuity (see – see include, but are not limited to, figures 5- 6, paragraphs 0050, 0067, 0069-0071, 0088-0089, 0094, 0098, 0102, 0105-0106 and similar discussion in the rejection of claim 1 for subsequently to streaming data at the second audio bitrate and determining changing in discontinuity based on scene, change in network availability, increasing or dropping of buffered data in audio buffer, etc. selecting new quality of audio with increasing bit rate or decreasing bit rate based on change of bandwidth available).
Regarding claim 14, Sharma discloses the computing system of claim 13, wherein the operations further comprise: streaming the data, subsequent to the subsequent streaming discontinuity, at the first audio bitrate (e.g., switching back to previous audio bit rate when bandwidth availability is improved/increase -see include, but are not limited to, figures 6, 9-11, paragraphs 0070-0071).
Regarding claim 15, limitations of a non-transitory computer readable medium that correspond to the limitations of system in claim 8 are analyzed as discussed in the rejection of claim 8. Particularly, Sharman discloses a non-transitory computer-readable medium having instructions stored thereon that, when executed by at least one computing device, cause the at least one computing device to perform operations comprising: first determining there is a streaming discontinuity associated with data comprising video data at a first video bitrate and audio data at a first audio bitrate; second determining, in response to the first determination that there is the streaming discontinuity, that a measured network bandwidth available for video downloads is lower or equal to a lowest available video bitrate, and that the measured network bandwidth plus a difference between a highest available audio bitrate for the audio data and a lowest available audio bitrate for the audio data is greater than or equal to a selected bitrate for the video data; in response to the second determination, adjusting the first audio bitrate to a second audio bitrate during the streaming discontinuity, wherein the second audio bitrate is different from the first audio bitrate; and stream the data at the second audio bitrate (see similar discussion in the rejection of claim 8).
Regarding claims 16-20, additional limitations of the non-transitory computer readable medium that correspond to the additional limitations of the system in claims 9-14 are analyzed as discussed in the rejection of claims 9-14.
Double Patenting
6. 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 §§ 706.02(l)(1) - 706.02(l)(3) 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 USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The 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/process/file/efs/guidance/eTD-info-I.jsp.
7. Claims 1-20 are rejected on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claims 1-17 of U.S. Patent No. 12192541. Although the conflicting claims are not identical, they are not patentably distinct from each other because the instant claims 1-20 and Patent claims 1-17 are directed to the same invention with a different in scope and are therefore an obvious variant thereof or the invention defined in instant claims 1-20 is an obvious variation of the invention defined in the patent claims 1-17 because for limitations in the instant claims that are not recited in patent claims (e.g., “by at least one computer processor” as recited in claim 1) are known by prior art (see for example, prior arts discussed in the rejection above). It would have been obvious to one of ordinary skill in the art combine in patent claims with the well-known teachings of “…by at least one computer processor” in order for a “computer-implemented method” to be performed.
Allowance of claims 1-20 would result in an un-warranted timewise extension of the monopoly granted for the invention as defined in claims 1-17 of Patent No. 12,192,541.
To clarify the rejection and in response to the Applicant’s arguments:
As to claim 1, although the conflicting claims are not identical, they are not patentably distinct from each other because all limitations of the independent claim 1 of the instant application are claimed in claim 1 of the Patent, i.e., claim 1 of the Patent is more specific. The corresponding dependent claims 2-7 have exactly the same limitations except those of the independent claims, compared to dependent claims 2-4, 6, 5, 5 of the Patent respectively. Thus the invention of claims 1-4, 6, 5, 5 of the Patent is in effect a "species" of the "generic" invention of claims 1-7 of the instant application respectively. It has been held that the generic invention is “anticipated” by the “species”. See In re Goodman, 29 USPQ2d 2010 (Fed. Cir. 1993).
Claims 8-14 are similarly rejected as for claims 1-7 respectively, wherein memory and processor are implied in order to perform the “computer-implemented method” steps.
Claims 15-20 are similarly rejected as for claims 1-5 and 7 respectively, wherein at least one computing device is implied in order to perform the “computer-implemented method” steps.
Conclusion
8. 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 extension fee 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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/HUA FAN/Primary Examiner, Art Unit 2426
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