Ex Parte Moreau et al

Patent Trial and Appeal Board

Sep 18, 2018

13795792 (P.T.A.B. Sep. 18, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/795,792 03/12/2013
71867 7590 09/20/2018
BANNER & WITCOFF, LTD
ATTORNEYS FOR CLIENT NUMBER 007412
1100 13th STREET, N.W.
SUITE 1200
WASHINGTON, DC 20005-4051
FIRST NAMED INVENTOR
Samuel Moreau
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
007412.02372 3265
EXAMINER
SCHNURR, JOHN R
ART UNIT PAPER NUMBER
2425
NOTIFICATION DATE DELIVERY MODE
09/20/2018 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):
PTO-71867@bannerwitcoff.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SAMUEL MOREAU, DON AHRENS,
GEORGIA GIBBS, JOHN CARNEY, and
DAVID DE ANDRADE
Appeal2018-002433
Application 13/795,792 1
Technology Center 2400
Before ALLEN R MACDONALD, JOSEPH P. LENTIVECH, and
PHILLIP A. BENNETT, Administrative Patent Judges.
BENNETT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's final
rejection of claims 25-31, 36-38, and 42-51, which constitute all of the
claims pending in this application. We have jurisdiction under 35 U.S.C.
§ 6(b ).
We affirm.
1 Appellants' Brief ("App. Br.") identifies TVWorks, LLC as the applicant
and Comcast Cable Communications Management, LLC as the assignee of
record. App. Br. 2.
Appeal2018-002433
Application 13/795,792
CLAIMED SUBJECT MATTER
The claims are directed to channel family surf control. Spec. Title.
Claim 25, reproduced below, is illustrative of the claimed subject matter:
25. A method comprising:
responsive to a selection of a first channel family that
corresponds to a first content theme:
initiating a channel change event during which
channel change operations are limited to a subset of
channels of the first channel family, wherein each channel
of the subset is currently broadcasting content
corresponding to the first content theme, wherein each
channel of the subset is associated with viewer access
rights;
causing display of video of a first channel of the
subset of channels of the first channel family; and
causing display of one or more first advertisements
for content corresponding to the first content theme and a
first identifier identifying the first content theme; and
during the channel change event and responsive to
receiving, from a control device, a first signal identifying a
channel change operation, causing display of video of a different
channel of the subset of channels of the first channel family and
continuing causing display of the one or more first
advertisements and the first identifier.
App. Br. 13 (Claims Appendix).
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Sciammarella
Crichton
Breen
Williams
Knudson
US 6,281,940 Bl
US 8,156,533 B2
US 2003/0204846 Al
US 2004/0019908 Al
US 2006/0156336 Al
2
Aug.28,2001
Apr. 10, 2012
Oct. 30, 2003
Jan.29,2004
July 13, 2006
Appeal2018-002433
Application 13/795,792
REJECTI0NS 2
Claims 36-38, 42--48, 50, and 51 stand rejected under 35 U.S.C. § 112
first paragraph as failing to comply with the written description requirement.
Final Act. 6.
Claims 25-30, 36, and 39--44 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Breen, Knudson, Sciammarella , and Crichton.
Final Act. 7-10.
Claims 31, 37, 38, 45--48, and 51 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Breen, Knudson, Sciammarella,
Crichton, and Williams. Final Act. 10-14.
ISSUES
First Issue: Has the Examiner erred in finding the Specification lacks
written description support for the limitation "configuring a first channel
family by assigning, to the first channel family, based on content being
currently broadcast and viewer access rights, a plurality of channels," as
recited in claim 36?
Second Issue: Has the Examiner erred in finding Breen and Knudson
teach or suggest "during the channel change event and responsive to
receiving, from a control device, a first signal identifying a channel change
operation ... continuing causing display of the one or more first
advertisements and the first identifier," as recited in claim 25?
Third Issue: Has the Examiner erred in finding the combination of
Breen, Knudson, Sciammaralla, and Crichton teaches or suggests
2 The Examiner has withdrawn the double patenting rejection that was also
appealed. Ans. 3.
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Application 13/795,792
"configuring a first channel family by assigning, to the first channel family,
based on content being currently broadcast and viewer access rights, a
plurality of channels," as recited in claim 36?
ANALYSIS
First Issue
The Examiner rejects independent claims 36 and 45, along with their
respective dependent claims under 35 U.S.C. § 112, first paragraph, as
lacking written description for the limitations "configuring a first channel
family by assigning, to the first channel family, based on content being
currently broadcast and viewer access rights, a plurality of channels" ( claim
3 6) and "configuring a first channel family by assigning to the first channel
family, based on viewer access rights, a subset of channels from channels
currently broadcasting content associated with a content theme" ( claim 45).
Final Act. 6. The Examiner finds the Specification does not provide
adequate support for these limitations because in paragraph 21, the portion
of the Specification relied upon by Appellants for support, "the channels are
not assigned to a channel family based on the viewer access rights they are
merely displayed based on these rights." Id.
Appellants argue the Examiner has erred because paragraph 21 of the
Specification discloses that "'the Channel Family Surf Control provides for
navigation through ... the subset of those games for which the viewer has
access rights,' the relevant 'plurality of channels' may be assigned 'based on
viewer access rights' as claimed." App. Br. 6.
In order to satisfy the written description requirement, the disclosure
must convey with reasonable clarity to those skilled in the art that the
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Application 13/795,792
inventor was in possession of the invention. Purdue Pharma L.P. v.
Paulding, Inc., 230 F.3d 1320, 1323 (Fed. Cir. 2000). Here, we agree with
Appellants that paragraph 21 of the Specification supports the recited
"configuring" limitation. The Specification indicates that a channel family
may be defined by an "affinity." Spec. ,r 21 ("Another example of an
affinity which may define a channel family .... "). A dictionary definition
of "affinity" is "a similarity of characteristics suggesting a relationship."
Affinity, NEW OXFORD AMERICAN DICTIONARY (3d. ed. 2010). Thus,
according to the description in paragraph 21, a channel family may be
defined by an affinity among a set of channels sharing two similar
characteristics: (1) they are currently broadcasting sports (which is a content
theme); and (2) are also channels to which the viewer has access rights
(based on viewer access rights). This description conveys that the inventor
possessed "configuring a first channel family by assigning to the first
channel family, based on viewer access rights, a subset of channels from
channels currently broadcasting content associated with a content theme."
Accordingly, we do not sustain the rejection under 35 U.S.C. § 112, first
paragraph.
Second Issue
Claim 25 recites the limitation "during the channel change event and
responsive to receiving, from a control device, a first signal identifying a
channel change operation, causing display of video of a different channel of
the subset of channels of the first channel family and continuing causing
display of the one or more first advertisements and the first identifier." In
rejecting claim 25, the Examiner finds the combination of Breen and
Knudson renders this limitation obvious. More specifically, the Examiner
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finds that Breen teaches the recited "first identifier" because it discloses "a
service aggregate containing top and bottom regions 40a and 40b showing a
company logo, i.e. Discovery Network logo (Figs. 1, 2, [0043])." Ans. 4.
The Examiner further finds that Knudson teaches "maintaining display of a
graphical user interface (SUI) during a channel change operation, wherein
the GUI contains locations for a logo and an advertisement (Fig. 9, [0050],
[0055])." Id. The Examiner explains that the combined teachings of Breen
and Knudson "results in the display of the service aggregate interface of
Breen being maintained throughout a channel change operation." Id.
Appellants present several arguments against the rejection which we
address seriatim.
Appellants first argue the Examiner has erred because the Examiner
relies on Knudson for "during the channel change event ... continuing
causing display of the ... first identifier [but] Knudson never teaches this
step." App. Br. 7. More specifically, Appellants argue that although
Knudson teaches a flip display that includes an advertisement or logo,
neither is a "first identifier" within the meaning of claim 25 because they do
not identify a "content theme" as required by claim 25. App. Br. 8. Because
Knudson does not teach the recited "first identifier," it cannot teach "during
the channel change event ... continuing causing display of the ... first
identifier." Id.
We are not persuaded by this argument because it wrongly
characterizes the Examiner as relying solely on Knudson for the recited
"first identifier identifying a first content theme." The Examiner explains in
the Answer that "Breen discloses 'a first identifier identifying the first
content theme"' because it "discloses a service aggregate containing top and
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bottom regions 40a and 40b showing a company logo, i.e., Discovery
Network logo." Ans. 4 ( citing Breen Figs. 1, 2; ,r 43). The Examiner relies
on Knudson only to the extent that it "discloses maintaining display of a
graphical user interface ( GUI) during a channel change operation, wherein
the GUI contains locations for a logo and an advertisement." Id. ( citing
Knudson Fig. 9; ,r,r 50, 55). Thus, the Examiner determines that read
together, Breen and Knudson would have suggested using Breen's
"Discovery Network" logo, which identifies a content theme, along with
Knusdon' s teaching of maintaining the GUI during a channel change
operation (which also includes a logo) in order to achieve "continuing
causing display of the ... first identifier."3 We discern no error in this
determination. By focusing solely on Knudson and not addressing the what
the combined teachings of Breen and Knudson would have suggested to a
person of ordinary skill in the art, Appellants' argument amounts to an attack
on Knudson individually, where the rejection is based on a combination of
Knudson and Breen. Soft Gel Techs., Inc. v. Jarrow Formulas, Inc.,
864 F.3d 1334, 1341 (Fed. Cir. 2017) (citations omitted).
Appellants' second argument focuses on the limitation "continuing
causing display of the one or more advertisements." More specifically,
Appellants argue the rejection is in error because "Knudson does not clearly
teach 'continuing causing display of the one or more advertisements'
'responsive to receiving, from a control device, a first signal identifying a
channel change operation." App. Br. 8. According to Appellants, "Knudson
3 We are mindful that Appellants also argue the logo and advertisements in
Knudson do not continue display during the channel change event. As we
discuss in detail below, we are not persuaded by this argument.
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suggests that the 'advertisements' are merely regions of a screen whose
actual content may be cycled." App. Br. 8 (citing Knudson ,r 50).
Appellants assert that because "Knudson omits illustrating updates to the
content of advertisement 98 during the channel change," it does not clearly
teach "continuing causing display of the one or more first advertisements."
App. Br. 8-9.
We do not find Appellants' second argument persuasive. Appellants
contend that because Knudson does not specifically state that the
advertisement 82 is not affected by a change in the channel, it does not
render obvious "continuing causing display of the one or more first
advertisements." However, we agree with the Examiner that Knudson's
teaching that the advertisement may be cycled periodically does not preclude
a finding that it teaches the argued limitation. As the Examiner explains,
"[i]f a channel change occurred within the period of time a first
advertisement was displayed[,] that same first advertisement would continue
to be displayed." Ans. 5. We further note that Knudson makes no reference
to changing the advertisement other than that "[t]he content of advertisement
82 may be cycled (i.e., replaced periodically by another advertisement)."
Knudson ,r 50. This statement does not suggest that a channel change causes
the cycling to occur, but instead suggests that it is merely a function of time.
Moreover, in describing a channel change operation in paragraph 55,
Knudson clearly states that the "video for the current channel that is
displayed on screen 100 is changed," and that the "program listing 102 in
flip display 96 is changed to the next available channel," but does not
otherwise indicate any change made to the remainder of the GUI. As such,
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we are not persuaded the Examiner erred in finding Knudson teaches the
recited "continuing causing display of the one or more advertisements."
Appellants further contend the Examiner has not provided an adequate
rationale for the combination made. In particular, Appellants argue the
rationale provided by the Examiner "would lead the person of ordinary skill
to update Breen's menu or Knudson's flip display after a channel change
operation, as taught by both Breen and Knudson." App. Br. 9 (citing Breen
,r 42; Knudson ,r 4); Reply Br. 3--4. Appellants further argue that modifying
Breen with Knudson's display of a menu during a channel change would not
produce the claimed invention because "Breen's menu would change
'dependent upon the channel ... or the program being viewed on the
television." App. Br. 9 (citing Breen ,r 42).
We do not find these arguments persuasive of Examiner error.
Appellants' argument again focuses on the references individually and not
on their combination. Appellants argue that Breen teaches in paragraph 42
that the menu changes based on the channel. As we noted above, however,
the Examiner relies on Knudson to show that it was known in the prior art to
maintain the GUI when changing channels. Appellants argue paragraph 4 of
Knudson contradicts this finding, but we disagree. The paragraph cited by
Appellants is from the background section of Knudson, and describes prior
art operation of flip displays. In describing the channel change process
shown in Figure 9, Knudson provides no indication that the flip display, or
at least the advertisement portion of the flip display, is updated due to the
change in channels. Moreover, we agree with the Examiner that Breen also
teaches restricting the browsing to channels contained within the service
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Application 13/795,792
aggregate, and the logo associated with the service aggregate (i.e., the
"Discovery Network" logo) would remain unchanged in those instances.
Because we are not persuaded by Appellants' arguments with respect
to claim 25, we sustain its rejection under 35 U.S.C. § 103.
Third Issue
Appellants also challenge the Examiner's determination that the
limitation "configuring a first channel family by assigning, to the first
channel family, based on content being currently broadcast and viewer
access rights, a plurality of channels" is taught by the combination of
references. In that regard, Appellants argue that the Examiner does not
sufficiently "explain how the features of claim 3 6 are met by the references."
Reply Br. 5. Specifically, Appellants argue that the Examiner has compared
the prior art not to the actual language of the claim, but instead to an
interpretation of the embodiment described in the Specification. Id.
Appellants further argue the Examiner fails to address the language "based
on content currently being broadcast," as recited in the claim.
We are not persuaded by Appellants' argument. In rejecting claim 25,
which recites the limitation "wherein each channel of the subset is currently
broadcasting content corresponding to the first content theme," the Examiner
cites Sciammarella, finding that it "discloses a system for video distribution
[ and] teaches each channel of the subset is currently broadcasting content
corresponding to the first content theme." Final Act. 8 ( citing Sciammarella
col. 6, 11. 46-54). Thus, we understand the rejection to be relying on
Sciammarella as disclosing the "based on content currently being broadcast"
aspect of claim 3 6. Appellants do not address this finding, and we do not
discern error in the Examiner's determination regarding "currently
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broadcasting content" because Sciammarrella describes grouping subsets of
channels based on a content theme and which "currently have particular
programming ( e.g., movies ( or subsets dramas, comedies) or sports ( or
subsets baseball, football)." Sciamarrella col. 6, 11. 49-52. Accordingly, we
are not persuaded the Examiner erred in rejecting claim 36, and we sustain
its rejection under 35 U.S.C. § 103(a).
Remaining Claims
Appellants do not present separate arguments for patentability of any
of the remaining claims. No separate arguments are presented for any
dependent claim, and the arguments presented for independent claim 45 are
the same as those discussed above in connection with claims 25 and 36.
Accordingly, we are not persuaded of error with respect to the remaining
claims, and we sustain their rejections under 35 U.S.C. § 103(a).
DECISION
We reverse the Examiner's rejection of claims 36-38, 42--48, 50, and
51 under 35 U.S.C. § 112, first paragraph.
We affirm the Examiner's rejection of claims 25-31, 36-38, and 42-
51 under 35 U.S.C. § 103.
Because we have affirmed at least one ground of rejection for each
claim on appeal, we affirm the Examiner's decision to reject the claims.
37 C.F.R. § 4I.50(a)(l).
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)(l )(iv).
AFFIRMED
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