Ex Parte Hardy et alDownload PDFPatent Trial and Appeal BoardSep 29, 201713831071 (P.T.A.B. Sep. 29, 2017) Copy Citation United States Patent and Trademark Office UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O.Box 1450 Alexandria, Virginia 22313-1450 www.uspto.gov APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 13/831,071 03/14/2013 Christofer Hardy P2012-11-03 (290110.571) 9533 70336 7590 10/03/2017 Seed IP Law Group LLP/EchoStar (290110) 701 FIFTH AVENUE SUITE 5400 SEATTLE, WA 98104 EXAMINER EKPO, NNENNA NGOZI ART UNIT PAPER NUMBER 2425 NOTIFICATION DATE DELIVERY MODE 10/03/2017 ELECTRONIC Please find below and/or attached an Office communication concerning this application or proceeding. The time period for reply, if any, is set in the attached communication. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): Patentlnfo @ SeedIP. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte CHRISTOFER HARDY and THOMAS A. YARBOROUGH Appeal 2017-005070 Application 13/831,071 Technology Center 2400 Before JASON V. MORGAN, JEREMY J. CURCURI, and JOHN R. KENNY, Administrative Patent Judges. MORGAN, Administrative Patent Judge. DECISION ON APPEAL Introduction This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s final rejection of claims 1—21. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM-IN-PART. Invention Appellant1 discloses examining the viewing habits of a viewer’s geographic marketing area, and other factors, to identify video content that may be of interest to the user. Abstract. 1 Appellant is the Applicant, EchoStar Technologies L.L.C., which the Appeal Brief identifies as the real party in interest. App. Br. 1 Appeal 2017-005070 Application 13/831,071 Illustrative Claim (key limitations emphasized) 1. A system, comprising: a computer processor circuit configured to: manage one or more personality user databases associated with one or more users in a first geographic marketing area to determine content preferences for the one or more users in the first geographic marketing area, the first geographic marketing area being one of a plurality of geographic marketing areas, each of the plurality of geographic marketing areas being associated with at least one user; manage one or more personality user databases associated with one or more users in a second geographic marketing area to determine content preferences for the one or more users in the second geographic marketing area; manage a first marketing area viewing habits module associated with users in the first geographic marketing area to determine viewing habits of the one or more users in the first geographic marketing area, the first marketing area viewing habits module being configured to determine viewing habits by querying set top boxes in the first geographic marketing area for content selected for viewing by the one or more users in the first geographic marketing area; manage a second marketing area viewing habits module associated with users in the second geographic marketing area to determine viewing habits of the one or more users in the second geographic marketing area, the second marketing area viewing habits module being configured to determine viewing habits by querying set top boxes in the second geographic marketing area for content selected for viewing by the one or more users in the second geographic marketing area; identify content available for viewing from a content database; 2 Appeal 2017-005070 Application 13/831,071 identify a first plurality of matched content titles a user in the first geographic marketing area may have a preference for based on a comparison of the content available for viewing with a personality user database associated with the user in the first geographic marketing area, and further based on the viewing habits of other users in the first geographic marketing area; identify a second plurality of matched content titles a user in the second geographic marketing area may have a preference for based on a comparison of the content available for viewing with a personality user database associated with the user in the second geographic marketing area, and further based on the viewing habits of other users in the second geographic marketing area; send the first plurality of matched content titles to the user in the first geographic marketing area for display on a first mobile communication device; send the second plurality of matched content titles to the user in the second geographic marketing area for display on a second mobile communication device; receive a selection of the first plurality of matched content titles from the user in the first geographic marketing area; receive a selection of the second plurality of matched content titles from the user in the second geographic marketing area; and perform an action with the selected content titles. Rejections The Examiner rejects claims 1,3,6, 7, 14—17, 20, and 21 under 35 U.S.C. § 102(b) as being anticipated by Trenz et al. (US 2010/0306708 Al; published Dec. 2, 2010). Final Act. 4—8. 3 Appeal 2017-005070 Application 13/831,071 The Examiner rejects claims 3, 7, and 16, in the alternative, under 35 U.S.C. § 103(a) as being unpatentable over Trenz and Barton et al. (US 2003/0095791 Al; published May 22, 2003). Final Act. 19. The Examiner rejects claims 15 and 21, in the alternative, under 35 U.S.C. § 103(a) as being unpatentable over Trenz and Anzures et al. (US 2010/0291861 Al; published Nov. 18,2010). Final Act. 18. The Examiner rejects claims 14 and 20, in the alternative, under 35 U.S.C. § 103(a) as being unpatentable over Trenz, Fishman et al. (US 2012/0059825 Al; published Mar. 8, 2012), and Walter et al. (US 2009/0144776 Al; published June 4, 2009). Final Act. 16—17. The Examiner rejects claims 2 and 13 under 35 U.S.C. § 103(a) as being unpatentable over Trenz and Begeja et al. (US 8,712,218 Bl; issued Apr. 29, 2014). Final Act. 13-14. The Examiner rejects claims 2 and 13, in the alternative under 35 U.S.C. § 103(a) as being unpatentable over Trenz and Horvitz et al. (US 7,644,427 Bl; published Jan. 5, 2010). Final Act. 14—15. The Examiner rejects claims 4 and 19 under 35 U.S.C. § 103(a) as being unpatentable over Trenz and Chen et al. (US 2014/0089953 Al; published Mar. 27, 2014). Final Act. 15. The Examiner rejects claims 5, 8—12, 17, and 18 under 35 U.S.C. § 103(a) as being unpatentable over Trenz and Fishman. Final Act. 8—13. The Examiner rejects claims 9 and 10 in the alternative under 35 U.S.C. § 103(a) as being unpatentable over Trenz, Fishman, and Barton. Final Act. 19—20. 4 Appeal 2017-005070 Application 13/831,071 The Examiner rejects claims 11 and 17, in the alternative, under 35 U.S.C. § 103(a) as being unpatentable over Trenz, Fishman, and Walter. Final Act. 16. The Examiner rejects claims 12 and 18, in the alternative, under 35 U.S.C. § 103(a) as being unpatentable over Trenz, Fishman, and Anzures. Final Act. 17—18. ANAFYSIS Claims 1—4, 6, 7, 13 16, and 19—21 In rejecting claim 1 under 35 U.S.C. § 102(b), the Examiner finds the use in Trenz of community preferences (e.g., a movie included in the majority of profiles stored in a network community), and of a media guidance application monitoring user activity such as media a user accesses, discloses first and second marketing area viewing habits modules being configured to determine viewing habits by querying set top boxes in the first and second geographic marketing areas for content selected for viewing by the one or more users in the first and second geographic marketing area. Final Act. 5 (citing Trenz || 159, 163, Figs. 13, 14); Adv. Act.2 2; Ans. 7 (further citing Trenz || 27, 28, 38, 39, 160, 161). Appellant contends the Examiner erred because rather than “querying set top boxes for content selected for viewing by users in first and second geographic areas ....[,] Trenz merely teaches user ‘preference profiles’ which may include user-indicated likes/dislikes associated with particular media assets.†App. Br. 13; see also Reply Br. 2-4. 2 All references to “Adv. Act.†are to the Advisory Action mailed Feb. 12, 2016. 5 Appeal 2017-005070 Application 13/831,071 The Examiner finds that the media guidance application of Trenz “may allow monitoring user(s) activity to determine various user preferences.†Ans. 5. However, Trenz merely monitors media user accesses to automatically compile user profile information. Trenz 139. While the profile information from such monitoring may reflect the user’s viewing habits, we agree with Appellant that such monitoring falls short of querying set top boxes for content selected for viewing by at least one or more users in a first geographic marketing area and one or more users in a second geographic marketing area. See App. Br. 15; Reply Br. 4. Specifically, the Examiner does not show that the monitoring in Trenz is done, or that the monitoring results (i.e., the “content selected for viewingâ€) are provided, in response to a query. Rather, the media guidance application monitoring or monitoring results communications in Trenz could be automatic and self-reported rather than in response to a query. Therefore, we agree with Appellant that the Examiner’s findings do not show that Trenz discloses the first and second marketing area viewing habits module recitations of claim 1. Accordingly, we do not sustain the Examiner’s 35 U.S.C. § 102(b) rejection of claim 1, and claims 3, 6, 7, 14—16, 20, and 21, which contain similar recitations. The Examiner does not show that Barton, Anzures, Fishman,3 or Walter cure the noted deficiency of Trenz. Therefore, we also 3 The Examiner’s cites to Fishman in rejecting, in the alternative, claims 14 and 20 under 35 U.S.C. § 103(a) as being unpatentable over Fishman, Trenz, and Walter. Final Act. 16—17. However, the Examiner’s findings with respect to Fishman are simply that “Fishman et al. and Trenz et al. discloses 6 Appeal 2017-005070 Application 13/831,071 do not sustain the Examiner’s 35 U.S.C. § 103(a) rejections of claims 2—4, 7, 13-16, and 19-21. Claims 5, 8—12, 17, and 18 In rejecting claim 5 under 35 U.S.C. § 103(a), the Examiner finds Fishman renders obvious identifying content titles currently being viewed by all set top boxes in a first area, determining the number of viewers in the first area of each content title, and comparing the number of viewers in the first area of each content title to a threshold value, and outputting matched content titles. Final Act. 8—9 (citing, e.g., Fishman || 15, 17, 33, 35, 36, Fig. 2). The Examiner relies on Trenz, rather than Fishman, to render obvious sending the matched content titles to a user associated with a first geographic marketing area for display on a mobile communication device. Final Act. 10 (citing Trenz || 53, 128, Fig. 8); see also Ans. 19 (citing Trenz 129, 131, 137, Figs. 6, 11, and 12). The Examiner also relies on Trenz to render obvious the first area being a geographic marketing area. Final Act. 10 (citing Trenz 1162, Fig. 13); Adv. Act. 2 (citing Trenz Figs. 6, 9); Ans. 17-18. Appellant contends the Examiner erred because Trenz “merely teaches that users may communicate through an instant message text box, and if the receiving user is not logged into the system, the chat message may everything claimed as applied above (see claims 1 and 6).†Id. at 17. However, the Examiner does not rely on Fishman with respect to independent claims 1 and 6. Id. at 4—7; Adv. Act. 2 (Feb. 12, 2016). In the event of further prosecution, we recommend the Examiner ascertain and set forth findings as to whether Fishman, particularly paragraph 35 discussed herein, cures the noted deficiency of Trenz. 7 Appeal 2017-005070 Application 13/831,071 be provided as a text message to the user’s mobile device.†App. Br. 16. Appellant further argues that the Examiner’s additional citations to Trenz relate to listing “content that the [viewing] user and one other particular community member (who was actively selected by the user, regardless of geographic marketing areas) may share an interest in.†Reply Br. 6. Appellant’s arguments are unpersuasive because Trenz renders obvious sending information such as a list of media (e.g., media liked by the user and another community member) to a user’s mobile communication device. See Ans. 19 (citing, e.g., Trenz 1131, Figs. 6, 11). The Examiner’s findings show that Fishman communicates a customized playlist—based on content utilization information collected from client devices of an entire community of users—to a client device of a target user. See Final Act. 8—9 (citing, e.g., Fishman 135); Adv. Act. 2 (citing, e.g., Fishman 139). We agree with the Examiner that Fishman’s communication of a customized playlist and the sending in Trenz of a list of media to a user’s mobile communication device would have rendered obvious to an artisan of ordinary skill sending the matched content titles to a user for display on a mobile communication device, as recited in claim 5. Appellant further argues “Trenz merely show[s] that a user’s profile information, as well as that of other users within the system . . . may include location information.†App. Br. 17. Appellant contends, “[t]hese are not separate ‘geographic marketing areas’ as claimed.†Id.', see also Reply Br. 5—6. However, Appellant does not persuasively distinguish the claimed geographic marketing areas from the location information of Trenz (e.g., “Californiaâ€). Therefore, we agree with the Examiner that the combination of Fishman and Trenz renders obvious the use of geographic marketing 8 Appeal 2017-005070 Application 13/831,071 areas as part of the identification, determination, comparison, and sending recitations of claim 5. Accordingly, we sustain the Examiner’s 35 U.S.C. § 103(a) rejection of claim 5, and claims 8—12, 17, and 18, which Appellant does not argue separately. DECISION We reverse the Examiner’s decision rejecting claims 1—4, 6, 7, 13—16, and 19-21. We affirm the Examiner’s decision rejecting claims 5, 8—12, 17, and 18. 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. § 41.50(f). AFFIRMED-IN-PART 9 Copy with citationCopy as parenthetical citation