Ex Parte Reitmeier et al

Patent Trial and Appeal Board

Nov 23, 2016

12965546 (P.T.A.B. Nov. 23, 2016)

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.
12/965,546 12/10/2010 Glenn A. Reitmeier 248413-2/YOD 7023
(NBCU:0023)
12640 7590
NBCUniversal Media, LLC
c/o Fletcher Yoder, P.C.
PO Box 692289
Houston, TX 77269-2289
11/25/2016 EXAMINER
TRAN, HAI V
ART UNIT PAPER NUMBER
2423
MAIL DATE DELIVERY MODE
11/25/2016 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GLENN A. REITMEIER, DANIEL BERKO WITZ,
CHRISTOPHER J. FALKNER, and SHEAU BAO NG
Appeal 2015-006123
Application 12/965,5461
Technology Center 2400
Before MICHAEL J. STRAUSS, DANIEL N. FISHMAN, and
JAMES W. DEJMEK, Administrative Patent Judges.
STRAUSS, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 1, 2, 4, 5, 7—19, and 21—23. Claims 3, 6, and 20
have been cancelled. Adv. Act. 2. We have jurisdiction over the remaining
pending claims under 35 U.S.C. § 6(b).
We affirm.
1 Appellants identify “NBCUniversal Media, LLC” as the real party in
interest. App. Br. 2.
Appeal 2015-006123
Application 12/965,546
STATEMENT OF THE CASE
Introduction
Appellants’ invention is directed to coordinating playback content
with time-adapted content. Abstract. “Such time-adapted content may
include advertisement, product and service offerings, complimentary
information, audio and/or video content.” Abstract.
Claim 1 is representative of the subject matter on appeal and is
reproduced below with the disputed limitation emphasized in italics'.
1. A system for delivery of digital content, comprising:
a content identification component that identifies basic digital
content played back in a manner that is time shifted from a regular
transmission schedule and identifies a frame within the basic digital
content;
a content delivery component that transmits time-adapted
content at a different time relative to the regular transmission schedule
of the basic digital content being played back, based upon the
identified basic digital content and based upon when the basic digital
content is played back;
wherein frames of the transmitted time-adapted content are
matched to corresponding successive frames of the time-shifted basic
digital content based on the identified frame within the basic digital
content.
The Examiner’s References and Rejections
Claims 1, 2, 4, 5, 9—13, 15—19, and 21—23 are rejected under 35
U.S.C. § 103(a) as being unpatentable over Plotnick et al. (US
2002/0144262 Al; Oct. 3, 2002) (“Plotnick”), Agarwal et al. (US
2010/0251278 Al; Sept. 30, 2010 (filed Mar. 24, 2009)) (“Agarwal”), and
Peters (US 2009/0222849 Al; Sept. 3, 2009). Final Act. 9-22.
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Application 12/965,546
Claims 7 and 14 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Plotnick, Agarwal, Peters, and Levy (US 2009/0158318
Al; June 18, 2009). Final Act. 22—24.
Claim 8 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Plotnick, Agarwal, Peters, and Maetz et al.
(US 2006/0168617 Al; July 27, 2006) (“Maetz”). Final Act. 2A-25.2
ANALYSIS3
We have reviewed the Examiner’s rejections in light of Appellants’
arguments the Examiner has erred. App. Br. 5—19; Reply Br. 2—5. We
disagree with Appellants’ conclusions. We adopt as our own: (1) the
findings and reasons set forth by the Examiner in the Action from which this
appeal is taken (Final Act. 2—25), and (2) the reasons set forth by the
Examiner in the Answer in response to arguments made in Appellants’
Appeal Brief (Ans. 3—15). We highlight and address specific findings and
arguments below.
Appellants contend the Examiner erred in finding Peters teaches or
suggests the disputed limitation of claim 1. App. Br. 14—15; Reply Br. 2—3.
In particular, Appellants assert Peters teaches a user identifying start and end
2 In the header for the rejection of claim 8, the Examiner mistakenly omits
Plotnick, which is relied upon in rejecting the base claims. Final Act. 24—25.
Appellants respond to the rejections as including Plotnick. App. Br. 18—19.
Thus, for purposes of our review, we include Plotnick in the rejection and
treat the Examiner’s typographical error as harmless.
3 In this Opinion, we refer to Appellants’ Appeal Brief (“App. Br.,” filed
February 2, 2015); Appellants’ Reply Brief (“Reply Br.,” filed June 3,
2015); the Final Office Action (“Final Act.,” mailed August 29, 2014); the
Advisory Action (“Adv. Act.,” mailed Nov. 18, 2014); and the Examiner’s
Answer (“Ans.,” mailed on April 3, 2015).
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Application 12/965,546
points of recorded program content, such as by frame number, to censor the
recorded program content. App. Br. 9 (citing Peters 20, 27, and 31).
Appellants further assert Peters teaches “display[ing] substitute content in
place of the [recorded] program content (i.e., the content between the start
and end points).” Id. Appellants argue Peters does not teach or suggest that
the frames of the substitute content are matched to corresponding successive
frames of the recorded program content because the recorded program
content is replaced with the substitute content “without using any
information relating to frames of the substitute content in any way.” Id. at
11 (citing Peters 26, 27) (emphasis omitted); see also Reply Br. 4.
We are unpersuaded of Examiner error. The Examiner interprets
matching “as a correspondence between two sections of video and/or audio
[content].” Ans. 6 (citing Merriam-Webster’s online dictionary). Under the
Examiner’s interpretation, the Examiner finds Peters teaches frames of the
substitute content are matched to frames of the recorded program content
that are to be censored. Final Act. 12—13 (citing Peters H 22, 31); see also
Ans. 4—7 (citing Peters Tfl[ 26, 45-49, 51-53). As the Examiner explains, “the
substitute content is displayed in lieu of the content that is replaced and
therefore the substitute content is ‘matched’ with the content that is
replaced.” Ans. 7. We agree with the Examiner’s findings and adopt them
as our own.
When construing claim terminology during prosecution before the
Office, claims are to be given their broadest reasonable interpretation
consistent with the specification, reading claim language in light of the
specification as it would be interpreted by one of ordinary skill in the art.
In re Am. Acad. ofSci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004).
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Application 12/965,546
In this case, Appellants’ Specification is devoid of any limiting definition of
matching. Given the lack of a relevant limiting definition in Appellants’
Specification, the Examiner broadly but reasonably construes matching,
consistent with the Specification, to encompass replacing the frames of the
recorded program content that are to be censored with the substitute content,
as taught by Peters.
In the Reply Brief, Appellants direct attention to another definition of
matching from Merriam-Webster’s online dictionary and “assert that one of
ordinary skill in the art, given the present claims, specification, and
dictionary definitions, would interpret the recited matching to mean a
relationship between frames of the time-adapted content and frames of the
time-shifted basic digital content that is determined.” Reply Br. 3.
However, “[a]bsent an express definition in their specification, the fact that
appellants can point to definitions or usages that conform to their
interpretation does not make the PTO’s definition unreasonable when the
PTO can point to other sources that support its interpretation.” In re Morris,
127 F.3d 1048, 1056 (Fed. Cir. 1997). Accordingly, for reasons discussed
supra, we remain unpersuaded of Examiner error.
Appellants further argue Peters does not teach or suggest the frames
of the substitute content are matched to corresponding successive frames of
the recorded program content because “it is inherent that the frames of the
time-adapted content and the frames of the time-shifted content be analyzed
in some manner in order to match the frames of the time-adapted content to
corresyondins successive frames of the time-shifted content.” App. Br. 12.
Next, Appellants argue Peters does not teach or suggest that the frames of
the substitute content are matched to corresponding successive frames of the
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Application 12/965,546
recorded program content because Peters is silent with regard to the frames
of the censored program content between the start and end points. Id. at 13.
In particular, Appellants argue the start and end frames of the substitute
content are not successive frames because Peters teaches the start and end
frames “are boundaries for the substitute content and thus, there are frames
between the start and end frames.” Id. (citing Peters 120). In support of
these contentions, Appellants provide an example, without directing
attention to a section of Appellants’ Specification, involving “frames A, B,
and C” as time adapted content and “frames 1, 2, and 3” as time-shifted
content, to teach characteristics of matching corresponding successive
frames. Id.\ Reply Br. 2.
We do not find Appellants’ arguments persuasive of Examiner error.
At the outset, we note it is well settled that mere attorney arguments and
conclusory statements, which are unsupported by factual evidence, are
entitled to little probative value. In re Geisler, 116 F.3d 1465, 1470
(Fed. Cir. 1997); In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984).
Attorney argument is not evidence. In re Pearson, 494 F.2d 1399, 1405
(CCPA 1974). Nor can such argument take the place of evidence lacking in
the record. Meitzner v. Mindick, 549 F.2d 775, 782 (CCPA 1977).
Accordingly, we are not persuaded by Appellants’ example to teach
characteristics of matching corresponding successive frames.
Peters is directed to “selectively censoring recorded program content
while displaying a program.” Peters, Abstract. Peters teaches input
identifying a first and second boundary (i.e., start and end points; see id. at
122) within the recorded program content “to form a boundary pair defining
censored content there between.” Id. at | 6 (emphasis added); see also id. at
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56, 60. Additionally, Peters teaches “displaying the substitute content in
place of the censored program content between the first boundary and the
second boundary.” Id. at 126 (emphasis added). Peters discloses “[t]he
start point and end point identifiers may comprise frame numbers.” Id. at
131. As the Examiner explains, “[t]he successive video frames of the
substitution content are displayed in lieu of the successive frames of the
content to be substituted and therefore the frames of the substitution content
are matched to the successive frames of the content to be substituted.” Ans.
9, 10; see also id. at 7, 12, and 13. We agree.
Peters, in disclosing displaying substitute content in place of the
recorded program content between first and second frame numbers, teaches
or suggests displaying substitute content for the frames between the first and
second frame numbers of the recorded program content. We find the frames
between the first and second frames of the recorded program content
suggests corresponding successive frames of the recorded program content.
Accordingly, we find Peters teaches or suggests displaying substitute content
in place of the recorded program content between the first and second frame
numbers of the recorded program content teaches or suggests frames of the
substitute content (the claimed “transmitted time-adapted content”) are
matched to corresponding successive frames of the recorded program
content (the claimed “time-shifted basic digital content”).
For the reasons discussed supra, we are unpersuaded of Examiner
error. Accordingly, we sustain the Examiner’s rejection of independent
claim 1 and, for similar reasons, the rejection of independent claims 12 and
19, which recite similar limitations and were not argued separately. See
App. Br. 15—17. Additionally, we sustain the Examiner’s rejections of
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dependent claims 2, 4, 5, 7—11, 13—18, and 21—23, which were not argued
separately. See App. Br. 15—19.
DECISION
We affirm the Examiner’s decision to reject claims 1, 2, 4, 5, 7—19,
and 21-23.
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
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