Ex Parte Bonzi et alDownload PDFPatent Trial and Appeal BoardMay 14, 201412018056 (P.T.A.B. May. 14, 2014) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte JOE BONZI, SHANE THOMAS, and JASON BROWN ____________ Appeal 2012-004652 Application 12/018,056 Technology Center 3600 ____________ Before BIBHU R. MOHANTY, MICHAEL C. ASTORINO, and KEVIN W. CHERRY, Administrative Patent Judges. MOHANTY, Administrative Patent Judge. DECISION ON APPEAL Appeal 2012-004652 Application 12/018,056 2 STATEMENT OF THE CASE The Appellants seek our review under 35 U.S.C. § 134 of the final rejection of claims 1-29 and 311 which are all the claims pending in the application. We have jurisdiction under 35 U.S.C. § 6(b). An oral hearing was conducted on May 8, 2014 by telephone. SUMMARY OF THE DECISION We AFFIRM-IN-PART. THE INVENTION The Appellants’ claimed invention is directed to the automatic generation of advertising messages online (Spec., para. [0001]). Claim 1, reproduced below (with the bracketed numbering added), is representative of the subject matter on appeal. 1. A method in a computing system having a processor for generating an advertising message, comprising: [1] receiving a URL corresponding to a web page; without any user input: retrieving a copy of the web page; [2] matching patterns in the retrieved copy of the web page to identify in the retrieved copy of the web page information specifying visual features of the web page; [3] and with the processor, [4] constructing a plurality of advertising messages each incorporating at least a portion of the visual features of the web page specified by the identified information. 1 The Appeal Brief and Reply Brief indicate that claim 30 has been cancelled (Br. 1, Reply Br. 1). Appeal 2012-004652 Application 12/018,056 3 THE REJECTION The following rejection is before us for review: Claims 1-29 and 31 are rejected under 35 U.S.C. § 103(a) as unpatentable over Datar (US 2007/0239530 A1, pub. Oct. 11, 2007) and Ellis (US 2006/0212350 A1, pub. Sep. 21, 2006). 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.2 ANALYSIS Claims 1-3 The Appellants argue that the rejection of claim 1 is improper because the cited prior art fails to disclose claim limitation [4] (Br. 11-12, Reply Br. 2-4). In contrast, the Examiner has determined that the cited claim limitation is found in Datar at paragraphs [0024] and [0044] (Ans. 5, 11). We agree with the Appellants. Claim limitations [2] and [4] require: [2] matching patterns in the retrieved copy of the web page to identify in the retrieved copy of the web page information specifying visual features of the web page; [4] constructing a plurality of advertising messages each incorporating at least a portion of the visual features of the web page specified by the identified information. (Claim 1, emphasis added). 2 See Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427 (Fed. Cir. 1988) (explaining the general evidentiary standard for proceedings before the Patent Office). Appeal 2012-004652 Application 12/018,056 4 Thus, the claim requires in part matching patterns in the retrieved copy of the web page information specifying visual features of the web page and then constructing a plurality of advertising messages incorporating a portion of the visual features of the web page. The Specification at paragraph [0022], in discussing the term “visual features,” provides and describes this in examples as relating to items such as “color” which we construe to be distinguished from “content.” Here, the citations to Datar at paragraphs [0024] and [0044] in the rejection fail to disclose claim limitation [4]. For example, Datar at paragraph [0024] discloses the generation of advertisements and at [0044] discloses ads with targeted information which would be directed to the “content,” but there is no specific disclosure of the constructed advertising messages incorporating a portion of the “visual features” of the web page. The citations to Datar at paragraphs [0012], [0035], [0049], [0051], [0054], and [0059] fail to disclose claim limitation [4] as well, and so the rejection of claim 1 and its dependent claims is not sustained. Claims 4-25 The Appellants argue that the rejection of claim 4 is improper because the prior art fails to disclose “extracting visual content from a model web page” and “constructing an advertising message that contains the extracted visual content” (Br. 14-15, Reply Br. 4-5). The Examiner has cited to Datar as disclosing these at paragraphs [0027], [0043], [0046], [0057] and [0068] (Ans. 7, 14-15). We agree with the Examiner. Unlike claim 1 addressed above, claim 4 is not directed to specific “visual features” but rather “visual content.” Appeal 2012-004652 Application 12/018,056 5 (Emphases added). Datar at paragraph [0046] discloses that ads may be targeted to documents served by content servers and that the ad request may include the document itself, content of the document, and content type including graphics, video, and audio. Datar at paragraph [0068] also discloses that the information is used to generate a targeted ad for that particular page thus meeting the cited claim limitations. The Appellants also argue that the Examiner has failed to provide a rationale for the combination but this was provided at page 7 of the Answer in relation to claim 1 with which we agree and adopt. The Appellants in the Brief at page 15 have also stated that the disclosure of Datar is non-enabling, but provide no explanation in what regard it is non-enabling, or the reasons why it is. Here, the reference does not appear to be non-enabling on its face, and the Appellants have failed to show with any argued specificity that it is. Note that the portion of Datar cited at paragraph [0068] to meet the cited, argued claim limitations is made to known cited prior art. For these above reasons the rejection of claim 4 and its dependent claims 6-7 and 12-21 which were not separately argued is sustained. Claims 22 and 23 contain similar language to that addressed for claim 4 above, and the rejection of these claims along with claims 24 and 25 which were not separately argued is sustained as well. The Appellants have also argued separately for claim 5 which is directed to the content of the constructed advertising message being audio (Br. 16-17). Datar at paragraph [0046] discloses using music and audio for the extracted information meeting the claimed limitation. The rejection of claim 5 is therefore sustained. Appeal 2012-004652 Application 12/018,056 6 The Appellants have also argued separately for claims 9 and10 which are directed to the contents being an image, and a video sequence respectively (Br. 18-19). Datar at paragraph [0046] discloses using graphics and video for the extracted information meeting the argued claim limitations. The rejection of claims 9 and 10 is therefore sustained. The Appellants have argued separately for claim 8 which requires that the extracted visual content comprise a particular background color (Br. 17- 18). We agree as the particular background color is not directed to just the image’s content but also to its visual feature. For this reason the rejection of claim 8 is not sustained. The Appellants have also argued separately for claim 11 which is drawn to the constructed advertising message containing a control for navigating around the extracted images (Br. 20). The Examiner has failed to show where the prior art discloses this. The rejection of claim 11 is therefore not sustained. Claims 26-29 and 31 The Appellants argue that the rejection of claim 26 is improper because the cited prior art fails to disclose the claim limitation for “information specifying the display of an advertising message comprising visual content extracted from a model web page” (Br. 22-23). In contrast, the Examiner has determined that the cited rejection is proper (Ans. 9). We agree with the Examiner. Here, the cited claim limitation is drawn to computer memories containing an “advertising data structure.” Here, the contents of that data structure that is “information specifying the display of an advertising message comprising visual content extracted from Appeal 2012-004652 Application 12/018,056 7 a model web page” (emphasis added) is non-functional descriptive material that does not change how the underlying substrate operates. Here, the cited “information” and “message” is a mere data field and non-functional descriptive material. For these reasons, the rejection of claim 26 is sustained. Claims 27-29 and 31 are directed to similar data structures whose contents serve as a non-functional descriptive material and a mere data field and the rejection of these claims is sustained as well. CONCLUSIONS OF LAW We conclude that Appellants have shown that the Examiner erred in rejecting claims 1-3, 8, and 11 under 35 U.S.C. § 103(a) as unpatentable over Datar and Ellis. We conclude that Appellants have not shown that the Examiner erred in rejecting claims 4-7, 9-10, 12-29, and 31 under 35 U.S.C. § 103(a) as unpatentable over Datar and Ellis. DECISION The Examiner’s rejection of claims 1-3, 8, and 11 is reversed. The Examiner’s rejection of claims 4-7, 9-10, 12-29, and 31 is sustained. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED-IN-PART hh Copy with citationCopy as parenthetical citation