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
Response to Arguments
Applicant's arguments filed 05/04/2026 have been fully considered but they are not persuasive.
because Voris does not “select the version of the segment” and Swaminathan does not teach “selecting a segment’s version ‘based at least on the indication of the one or more characteristics of the subsequent content segment sent with the first content segment’”, the Examiner respectfully disagrees. In response to applicant's arguments on pages 8-9 of Applicant’s Remarks against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). Applicant alleges “neither cited reference discloses sending a version of the subsequent content segment that is ‘selected based at least on the indication of the one or more characteristics of the subsequent content segment sent with the first content segment.’” Applicant’s first support for this allegation is that Voris does not “select the version of the segment”, but Swaminathan was cited to teach this feature on page 3 of the Office Action of record, dated 02/04/2026. Applicant’s second support for this allegation is that Swaminathan does not teach “selecting a segment’s version ‘based at least on the indication of the one or more characteristics of the subsequent content segment sent with the first content segment’”. Voris was cited on pages 2-3 of said Office Action for disclosing an indicated characteristic in the form of bitrate of a subsequent segment being sent with the first content segment, while Swaminathan discloses the ability to select a particular version in the form of a particular segment/content at a particular bitrate and resolution of a plurality of versions of the segment/content at various bitrates and resolutions, and send the selected segment/content to the client at the particular bitrate/resolution based on the indication of a characteristic (i.e., any of the various bitrates Swaminathan indicates that the segment/content is able to be sent). Applicant’s analysis of these claim limitations focuses on Voris or Swaminathan individually while failing to provide a valid argument as to how the combination of references fails to disclose all the features of claim 1.
Referring to Applicant’s argument on page 9 of Applicant’s Remarks alleging “the Office Action fails to identify any reason why a skilled artisan would replace or modify the features for accounting for network conditions already described in Boris to arrive at claim 1”, the Examiner respectfully disagrees. Fig. 2 and Paragraphs 0026-0027 of Voris describes that while the bit-rate information/look-ahead information can be specified per-segment of the media content asset, the network/transmission conditions of Voris are monitored and determined “As the content server 32 begins to transmit the media content asset 20 to the receiving device 34”. Therefore, the network/transmission condition determination is executed at the beginning of the transmission for the whole media asset 20 at once in order to determine a version of the entire media asset to transmit, which is fundamentally different from the on-going network condition determinations being made for each segment of a media content asset seen in Swaminathan (Para. 0018). Additionally, this discrepancy between Voris and Swaminathan also invalidates Applicant’s allegation that the references use “the same adaptive bitrate streaming feature.” As shown above, these processes are not identical.
Referring to Applicant’s argument on pages 9-10 of Applicant’s Remarks alleging the rationale for combining Voris and Swaminathan “is incorrect in the context of the cited references” because “using the information in prior transmitted segments would not account for current network conditions because, by the time the information is received and used, the network conditions would have changed”, the Examiner respectfully disagrees. Applicant’s allegation fails to consider any of the teachings Swaminathan in combination with Voris, such as the availability of multiple bitrates and resolutions, as well as continued network condition monitoring, for each individual segment of the content asset. In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
Referring to Applicant’s argument on page 10 of Applicant’s Remarks alleging the combination of Voris and Swaminathan would “change the entire operation and defeat the purpose” of Voris because “the purpose of Voris’s system is to avoid having to select different versions for high bitrate segments in, for example, high-action scenes by including information in prior segments that allows the system to determine how and when to transmit portions of subsequent segments”, the Examiner respectfully disagrees. Applicant cites Paragraph 0022 of Voris for support for this allegation. Nowhere in Voris is it stated or implied that there is any attempt to eliminate the possibility of using different versions for high bitrate segments. There is only a stated desire for integrity of high-intensity/higher bitrate scenes through the use of adaptive-bit-rate streaming and predictive delivery, which Applicant has not provided any evidence showing the combination of Swaminathan teaches away from or makes these purposes impossible.
Claim Rejections - 35 USC § 103
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.
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 1-24 are rejected under 35 U.S.C. 103 as being unpatentable over Voris et al (hereinafter Voris) US 20150350277 in view of Swaminathan et al (hereinafter Swaminathan) US 20150264096.
Referring to claim 1, Voris discloses a method comprising:
inserting, into a first content segment, an indication of one or more characteristics of a subsequent content segment (see Paragraph 0026 and 0031-0034 for disclosing insertion, into the header of a first content segment, with characteristics/bit-rate information of the subsequent content segments); and
sending, to a device, the first content segment comprising the indication of the one or more characteristics of the subsequent content segment (see Paragraphs 0031-0034 for disclosing the first content segment (e.g., segment 1 with header 1a) is sent to a receiving device containing the characteristics/bit-rate information of the subsequent content segments); and
sending, to the device, the subsequent content segment, wherein the bitrate at which the subsequent content segment is sent is based at least on the indication of the one or more characteristics of the subsequent content segment sent with the first content segment (see Paragraph 0020-0026 and 0030-0035 for disclosing the subsequent segments (e.g., segment 2, 3, 4) are sent to the receiving device, wherein the bitrate at which the subsequent segments are sent is based on the bitrate that is indicated in the manifest inserted into the header of the first content segment).
Voris is unclear as to sending, to the device, a version of the content, wherein the version of the content is selected based at least on the indication of the one or more characteristics of the content.
Swaminathan discloses sending, to the device, a version of the subsequent content segment, wherein the version of the subsequent content segment is selected based at least on the indication of the one or more characteristics of the content (see Paragraph 0018 for disclosing sending, to a receiving device/client, one of a variety of different resolutions of the content (i.e. a version of the content), wherein the selected resolution of the content is based on at least the determined appropriate bitrate/characteristic at which the subsequent/next content segment should be sent).
Before the effective filing date of the claimed invention, it would have been obvious to a person having ordinary skill in the art to incorporate the version selection of Swaminathan with the system of Voris in order to account for current network conditions (e.g., changes in available or usable bandwidth) and produce playback without causing stalls or re-buffering events, which would interrupt the playback, or otherwise increase the playback latency(see Swaminathan, Paragraph 0018).
Referring to claim 2, Voris discloses inserting, into the first content segment, the indication of one or more characteristics of the subsequent content segment comprises inserting, into a header of the first content segment, the indication of one or more characteristics of the subsequent content segment as seen in the rejection of claim 1.
Referring to claim 3, Voris discloses the first content segment and the subsequent content segment are configured for linear transmission (see Abstract, Figs. 3A and 3B, and Paragraphs 0014 and 0023 for disclosing the content segments are configured for linear transmission through adaptive bitrate streaming).
Referring to claim 4, Voris discloses performing a lookahead operation to determine the one or more characteristics of the subsequent content segment (see Paragraphs 0026 and 0031-0034).
Referring to claim 5, Voris discloses the one or more characteristics of the subsequent content segment comprise an estimated bitrate required for transmission of the subsequent content segment as seen in the rejection of claim 1.
Referring to claim 6, Voris discloses the first content segment is configured for playback prior to the subsequent content segment (see Abstract, Figs. 3A and 3B, and Paragraphs 0014, 0020-0026, and 0031-0034 for disclosing the linear transmission/playback adaptive bitrate streaming system for playing back content segments in order).
Claim 7 is rejected on the same grounds as claim 1, further noting Voris discloses a non-transitory computer-readable medium storing instructions (see Paragraphs 0040-0041 and 0045) that, when executed performs the method as seen in the rejection of claim 1.
Claim 8 is rejected on the same grounds as claim 2.
Claim 9 is rejected on the same grounds as claim 3.
Claim 10 is rejected on the same grounds as claim 4.
Claim 11 is rejected on the same grounds as claim 5.
Claim 12 is rejected on the same grounds as claim 6.
Claim 13 is rejected on the same grounds as claim 1, further noting Voris discloses a first device comprising one or more processors and memory storing instructions (see Paragraphs 0040-0041 and 0045) that, when executed by the one or more processors, cause the first device to perform the method as seen in the rejection of claim 1.
Claim 14 is rejected on the same grounds as claim 2.
Claim 15 is rejected on the same grounds as claim 3.
Claim 16 is rejected on the same grounds as claim 4.
Claim 17 is rejected on the same grounds as claim 5.
Claim 18 is rejected on the same grounds as claim 6.
Claim 19 is rejected on the same grounds as claim 1, further noting Voris discloses a system comprising a first computing device (see Paragraphs 0040-0041 and 0045) configured to perform the method as seen in the rejection of claim 1.
Claim 20 is rejected on the same grounds as claim 2.
Claim 21 is rejected on the same grounds as claim 3.
Claim 22 is rejected on the same grounds as claim 4.
Claim 23 is rejected on the same grounds as claim 5.
Claim 24 is rejected on the same grounds as claim 6.
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 1-24 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 19 of of U.S. Patent No. 11943487. Although the claims at issue are not identical, they are not patentably distinct from each other because the limitations of claim 1 of the instant application are broader than and fully encompassed by the limitations of claim 1 of the cited patent, and the limitations of claims 7, 13, and 19 of the instant application are broader than and fully encompassed by the limitations of claim 19 of the cited patent, further noting the limitations of “first content segment” and “subsequent content segment” in the instant application are mapped to “second content segment” and “first content segment”, respectively, in the cited patent.
Claim 1-24 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 7, 13, and 19 of U.S. Patent No. 12200276 in view of Voris et al (hereinafter Voris) US 20150350277, and further in view of Swaminathan et al (hereinafter Swaminathan) US 20150264096.
Referring to independent claims 1, 7, 13, and 19 of the instant application, the cited patent discloses an in a first content segment, an indication of one or more characteristics of a subsequent content segment, the first content segment comprising the indication of the one or more characteristics of the subsequent content segment, and the version of the subsequent content segment is selected based at least on the indication of the one or more characteristics of the subsequent content segment from the first content segment as seen in cited independent claims 1, 7, 13, and 19, respectively, of the cited patent.
The cited patent is unclear as to inserting an indication of a characteristic of a subsequent segment into a first segment, sending the first content segment to a device, and sending the subsequent content segment to the device.
Voris discloses inserting an indication of a characteristic of a subsequent segment into a first segment, sending the first content segment to a device, and sending the subsequent content segment to the device (see Paragraphs 0020-0026 and 0030-0035).
Before the effective filing date of the claimed invention, it would have been obvious to a person having ordinary skill in the art to incorporate the robust adaptive bitrate streaming system of Voris with the system of the cited patent in order to allow more intelligent pre-caching of media content and enable the system to foresee higher bitrate segments that required greater attention, and use such information to improve the playback experience (see Voris, Paragraph 0023).
The cited patent in view of Voris is unclear as to sending a version of the subsequent content segment.
Swaminathan discloses sending a version of the content (see Paragraph 0018).
Before the effective filing date of the claimed invention, it would have been obvious to a person having ordinary skill in the art to incorporate the version selection of Swaminathan with the system of the cited patent in view of Voris in order to account for current network conditions (e.g., changes in available or usable bandwidth) and produce playback without causing stalls or re-buffering events, which would interrupt the playback, or otherwise increase the playback latency(see Swaminathan, Paragraph 0018).
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 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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to NICHOLAS T CORBO whose telephone number is (571)270-5675. The examiner can normally be reached on Monday - Friday 11am-7pm.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Benjamin Bruckart can be reached on 571-272-3982. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see http://pair-direct.uspto.gov. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/NICHOLAS T CORBO/
Primary Examiner, Art Unit 2424
07/02/2026
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