UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`Ex parte R. DREW MAJOR and MARK B. HURST
`
`Appeal 2011-008734
`Application 11/116,783
`Technology Center 3600
`
`Before ANTON W. PETTING, BIBHU R. MOHANTY, and
`MCHAEL C. ASTORINO, Administrative Patent Judges.
`
`MOHANTY, Administrative Patent Judge.
`
`DECISION ON APPEAL
`
`STATEMENT OF THE CASE
`
`The Appellants seek our review under 35 U.S.C. § 134 of the final
`
`rejection of claims 20-21, 23-25, 35-38, and 40-50 which are all the claims
`
`pending in the application. We have jurisdiction under 35 U.S.C. § 6(b ).
`
`SUMMARY OF THE DECISION
`
`We REVERSE.
`
`1
`
`fuboTV Media Inc.
`Exhibit 1022
`fuboTV v. Dish
`IPR2024-00918
`
`Ex. 1022-001
`
`

`

`Appeal 2011-008734
`Application 11/116,783
`
`THE INVENTION
`
`The Appellants' claimed invention is directed to a system for adaptive
`rate-content streaming (Spec. ,r 12). Claim 20, reproduced below with the
`numbering in brackets added, is representative of the subject matter on
`
`appeal.
`
`20. A method for presenting rate-adaptive streams, the
`method comprising:
`[ 1] streaming by a media player operating on an end user
`station a video from a set of one or more servers, [2] wherein each of
`a plurality of different copies of the video encoded at different bit
`rates is stored as multiple files on the set of servers, [3] wherein each
`of the multiple files yields a different portion of the video on
`playback, wherein the multiple files across the different copies yield
`the same portions of the video on playback, each of said files having a
`time index such that the files whose playback is the same portion of
`the video for each of the different copies have the same time index in
`relation to the beginning of the video, and wherein the streaming
`comprises:
`[ 4] requesting by the media player a plurality of sequential ones
`of the files of one of the copies from the set of servers over a plurality
`of Transmission Control Protocol (TCP) connections based on the
`time indexes;
`[5] automatically requesting by the media player from the set of
`servers over the plurality of TCP connections subsequent portions of
`the video by requesting for each such portion one of the files from one
`of the copies dependent upon successive determinations by the media
`player to shift the playback quality to a higher or lower quality one of
`the different copies, said automatically requesting including,
`[6] regularly generating a set of one or more factors indicative
`of the current ability to sustain the streaming of the video using the
`files from different ones of the copies, wherein the set of one or more
`factors relate to the performance of the network; and
`[7] making the successive determinations to shift the playback
`quality based on at least one of the set of factors to achieve continuous
`
`Ex. 1022-002
`
`

`

`Appeal 2011-008734
`Application 11/116,783
`
`playback of the video using the files of the highest quality one of the
`copies determined sustainable at that time; and
`[8] presenting the video by playing back with the media player
`on the end user station the requested files in order of ascending
`playback time.
`
`THE REJECTIONS
`
`The following rejections are before us for review:
`
`Claims 20, 21, 23-26, 35-38, and 40-50 are rejected under 35 U.S.C.
`
`§ 103(a) as unpatentable over Birney ("Intelligent Streaming" Microsoft
`
`Corporation, May 2003) (hereafter Birney), Kalra (US 6,490,627 Bl, iss.
`
`Dec. 3, 2002) and Quigg-Brown (US 2003/0152036 Al, pub. Aug. 14,
`
`2003).
`
`FINDINGS OF FACT
`
`We have determined that the findings of fact in the Analysis section
`below are supported at least by a preponderance of the evidence 1
`
`.
`
`ANALYSIS
`
`The Appellants argue that the rejection of claim 20 is improper
`
`because the prior art fails to disclose claim limitation [2] (Br. 10-11, Reply
`
`Br. 6).
`
`In contrast, the Examiner has determined that the cited claim
`
`limitation is found in Birney (Ans. 4, 13-14).
`
`1 See Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427 (Fed. Cir. 1988)
`( explaining the general evidentiary standard for proceedings before the
`Patent Office).
`
`Ex. 1022-003
`
`

`

`Appeal 2011-008734
`Application 11/116,783
`
`We agree with the Appellants. Here, the cited claim limitation [2]
`
`reqmres:
`
`[2] wherein each of a plurality of different copies of the video
`encoded at different bit rates is stored as multiple files on the set of
`servers. (Claim 1, emphasis added).
`
`Here, cited claim limitation [2] requires that the plurality of different copies
`
`of the video are stored as multiple files. In contrast, the cited portions of the
`
`Birney reference fail to show this. While Birney at page 2 in the "Multiple(cid:173)
`
`Bit-Rate Encoding section" does disclose that there are "a number of
`
`discrete, user-definable audio and video streams" it is also disclosed in the
`
`same sentence that these streams are "encoded into a single Windows Media
`
`stream" (emphasis added). As these streams are encoded into a single
`
`stream, they are not stored as multiple files as the claim limitation requires.
`
`The Examiner has also made a reference to cited claim limitation [2]
`
`being found in Kalra at Figures 7A-7B and column 6, lines 10-65 (Ans. 14).
`
`While Kalra at Figure 7 A does show multiple streams it is not disclosed that
`
`they are stored as multiple files. Further, Kalra at column 6, lines 36-65,
`
`shows that Figure 7B, rather than Figure 7 A, discloses the data format when
`
`stored. Kalra in Figure 7B shows a single stored stream with slices of the
`
`individual files. Thus, Kalra fails to disclose that the different copies of the
`
`video are stored as multiple files.
`
`For these above reasons, the rejection of claim 20 and its dependent
`
`claim is not sustained.
`
`Ex. 1022-004
`
`

`

`Appeal 2011-008734
`Application 11/116,783
`
`CONCLUSIONS OF LAW
`
`We conclude that Appellants have shown that the Examiner erred in
`
`rejecting the claims as listed in the Rejection section above.
`
`The Examiner's rejection of claims 20, 21, 23-26, 35-38, and 40-50
`
`DECISION
`
`is reversed.
`
`mp
`
`REVERSED
`
`Ex. 1022-005
`
`