Ex Parte Steelberg et alDownload PDFPatent Trial and Appeal BoardFeb 27, 201311141537 (P.T.A.B. Feb. 27, 2013) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte RYAN STEELBERG and CHAD STEELBERG ___________ Appeal 2010-008662 Application 11/141,537 Technology Center 2100 ____________ Before DAVID M. KOHUT, ERIC B. CHEN, and TREVOR M. JEFFERSON, Administrative Patent Judges. CHEN, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-008662 Application 11/141,537 2 This is an appeal under 35 U.S.C. § 134(a) from the final rejection of claims 1-31, all the claims pending in the application. We have jurisdiction under 35 U.S.C. § 6(b). We affirm-in-part. STATEMENT OF THE CASE Appellants’ invention relates to a database interface for developing media plays, including templates generated in accordance with feedback from prior media plays. The media play is limited by at least two desired criteria limiting circumstances for play. An accessor accesses media play inventory and preempts certain of the media play inventory with an insertion of the media play according to the desired criteria. (Abstract.) Claims 1 and 6 are exemplary, with disputed limitations in italics: 1. A system for developing at least one media play in a broadcast medium broadcast to a plurality of receivers, comprising: a displayer that displays a plurality of templates that enable a user to select at least two desired criteria limiting circumstances for media play, said criteria evaluated based on feedback from a plurality of members of an audience regarding prior occurrences of the at least one media plays; and an accessor that develops at least one media play by accessing a media play inventory and preempting certain of the media play inventory with an insertion of the at least one media play according to said at least two desired criteria, the insertion of the at least one media play being broadcast to the plurality of receivers in a real time broadcast, wherein the preempting comprises evaluating said at least two desired criteria using information determined by monitoring the real time broadcast. 6. A computer-implemented method performed by a data processing system for searching audio media plays in a database that have been publicly broadcast, the method comprising: Appeal 2010-008662 Application 11/141,537 3 accessing the audio media plays that were recorded as publicly broadcast, each audio media play being one of an advertisement and at least a portion of a show; providing in the database for an association of each of the audio media plays with a plurality of header information contexting each of the audio media plays, wherein the plurality of header information includes at least two key descriptors that generate the contexting, and wherein at least one of the at least two key descriptors is a term used in the audio media play; allowing searching, via an interface of the database, through the associations by entry of at least one of the key descriptors to locate the audio media play of interest that is the audio media play that was publicly broadcast; and responsive to the entry of the at least one of the key descriptors, performing a search of the database for the audio media play of interest. Claims 1-5, 7-9, 13-17, 19-21, 25, and 26 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Miller (U.S. Patent No. 6,338,043 B1; Jan. 8, 2002) and Liu (U.S. Patent No. 6,308,327 B1; Oct. 23, 2001). Claims 6, 10-12, 18, and 22-24 stand rejected under 35 U.S.C. § 102(b) as being anticipated by Miller. Claims 27 and 29-31 stand rejected under 35 U.S.C. § 102(b) as allegedly being anticipated by Liu. Claim 28 stands rejected under 35 U.S.C. § 103(a) as allegedly being unpatentable over Liu and Miller. Appeal 2010-008662 Application 11/141,537 4 ANALYSIS §103 Rejection – Miller and Liu We are persuaded by Appellants’ arguments (App. Br. 5-6; see also Reply Br. 3-4) that the combination of Miller and Liu would not have rendered obvious independent claim 1, which includes the limitation “preempting certain of the media play inventory with an insertion of the at least one media play.” The Examiner found that computer system of Liu, that inserts interactive content into live programming, corresponds to the limitation “an accessor that develops at least one media play by accessing a media play inventory and preempting certain of the media play inventory with an insertion of the at least one media play according to said at least two desired criteria.” (Ans. 12, 25.) We do not agree. Claim 1 recites “preempting certain of the media play inventory . . .” (emphasis added). One relevant plain meaning of “preempt” is “to replace with something considered to be of greater value or priority.” MERRIAM- WEBSTER’S COLLEGIATE DICTIONARY 918 (10th ed. 1999). Although Appellants’ Specification provides no express definition for “preempt,” the Specification discloses that: For example, if listenership of the particular radio station begins to fall, the hub may decide to preempt certain advertising that was to play with popular music . . . . When listenership reaches a particular level, premium advertising rates may become available for advertisers, due to the vastness of the audience, and the hub may at that stage preempt the music play with premium advertising in order to maximize advertising revenues. (Spec. ¶ [0063] (emphases added).) Accordingly, in light of Appellants’ Specification and applying a plain meaning of “preempt,” claim 1 requires Appeal 2010-008662 Application 11/141,537 5 “one media play” to preempt or replace “certain of the media play inventory” based on at least two criteria. Liu relates to a computer system for “interactive content insertion in [an] interactive digital television environment.” (Col. 1, ll. 7-10.) Liu explains that “the present invention provides . . . for selectively inserting interactive content into a live TV or recorded broadcasting presentation and tracking the usage of the inserted content by end user viewers of the presentation.” (Col. 1, l. 66 to col. 2, l. 3.) Similarly, an operator watching live programming “may see interactive content, say, a product-buy opportunity, that is relevant to the program and decides to add the interactive content to the program.” (Col. 3, ll. 1-4.) Therefore, Liu teaches supplementing the interactive content with a product-buy opportunity, rather than “preempting” the interactive content with the product-buy opportunity. Similarly, Miller relates to “developing a package of advertising spots from a plurality of available advertising spots for television broadcast, radio broadcast, internet broadcast and/or other media.” (Col. 1, ll. 8-10.) Therefore, Miller teaches inserting advertising spots into a television broadcast, rather than “preempting” other broadcast media. Thus, we do not agree with the Examiner that the combination of Miller and Liu would have rendered obvious independent claim 1, which includes the limitation “preempting certain of the media play inventory with an insertion of the at least one media play.” Accordingly, we do not sustain the rejection of independent claim 1 under 35 U.S.C. § 103(a). Claims 2-5 and 25 depend from independent claim 1. We do not sustain the rejection of claims 2-5 and 25 under 35 Appeal 2010-008662 Application 11/141,537 6 U.S.C. § 103(a) for the same reasons discussed with respect to independent claim 1. Independent claim 13 recite limitations similar to those discussed with respect to independent claim 1. We do not sustain the rejection of claim 13, as well as dependent claims 14-17, and 26, for the same reasons discussed with respect to claim 1. §102 Rejection – Miller First, we are unpersuaded by Appellants’ arguments (App. Br. 9) that Miller does not describe the limitation “accessing the audio media plays that were recorded as publicly broadcast,” as recited in claim 6. The Examiner found that the memory of Miller, for storing representations of available advertisings spots, correspond to the claimed “accessing the audio media plays that were recorded as publicly broadcast.” (Ans. 4, 27; Miller, col. 2, ll. 62-66.) We agree with the Examiner. As discussed previously, Miller relates to “developing a package of advertising spots from a plurality of available advertising spots for television broadcast, radio broadcast, internet broadcast and/or other media.” (Col. 1, ll. 8-10.) Miller explains that “representations of available advertising spots . . . provided for automatically developing a package of advertising spots” are stored in a memory. (Col. 3, ll. 62-66.) Miller further explains that the verb “package” is defined as “the process of selecting spots and grouping the selected spots together with other selected spots.” (Col. 2, ll. 36-38.) Therefore, Miller describes the limitation “accessing the audio media plays that were recorded as publicly broadcast.” Appeal 2010-008662 Application 11/141,537 7 Appellants argue that “[b]ecause the claimed audio media plays occurred in the past, these audio media plays are not available and cannot be construed as Miller’s available advertising spots.” (App. Br. 9.) However, the claim term “audio media plays” is broad enough to encompass the adverting spots of Miller. Appellants have provided insufficient evidence from Miller to illustrate that the advertisement spots are unavailable to the public prior to broadcasting. Appellants also argue that “developing a package of advertising spots as disclosed by Miller does not teach or suggest that the spots would be filled in by advertisements.” (App. Br. 9.) However, one relevant definition of “spot” is “a brief announcement or advertisement broadcast between scheduled radio or television programs.” MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 1138 (10th ed. 1999). Accordingly, by definition, the “spot” of Miller would include an advertisement. Appellants further argue that “Miller’s package developer as disclosed does not access audio media plays to generate a package.” (App. Br. 9.) However, as discussed previously, Miller explains that the verb “package” is defined as “the process of selecting spots and grouping the selected spots together with other selected spots.” (Col. 2, ll. 36-38.) In addition, Miller explains that “available advertising spots [are] for television broadcast, radio broadcast, internet broadcast and/or other media.” (Col. 1, ll. 8-10.) Accordingly, the claimed “audio media plays” is broad enough to encompass the advertising spots of Miller, which is inclusive of radio broadcast. Therefore, we agree with the Examiner that Miller describes the limitation “accessing the audio media plays that were recorded as publicly broadcast.” Appeal 2010-008662 Application 11/141,537 8 Second, we are unpersuaded by Appellants’ arguments (App. Br. 9- 10) that Miller does not describe the limitation “providing in the database for an association of each of the audio media plays,” as recited in claim 6. The Examiner found that the memory of Miller, for storing representations of available advertisings spots, also corresponds to the claimed “providing in the database for an association of each of the audio media plays.” (Ans. 4, 27; Miller, col. 2, ll. 62-66.) As discussed previously, Miller explains that “representations of available advertising spots . . . provided for automatically developing a package of advertising spots” are stored in a memory. (Col. 3, ll. 62-66.) Therefore, Miller discloses the limitation “providing in the database for an association of each of the audio media plays.” Appellants argue “Miller describes that a representation is of an available advertising spot (col. 6, lines 14- 27) and not an audio media play” and “Miller fails to disclose that Miller’s memory contains audio media plays.” (App. Br. 10.) However, the claim limitation “providing in the database for an association of each of the audio media plays” does not expressly require the database to store the audio media plays. The claim language “an association” is broad enough to encompass the representations of available advertising spots of Miller. Appellants also argue that “Miller’s guideline variables clearly are associated with Miller’s available advertising spots” and “Miller’s available advertising spots are not equivalent to the claimed audio media plays.” (App. Br. 10.) However, as discussed previously, the claimed “audio media plays” is broad enough to encompass the advertising spots of Miller, which is inclusive of radio broadcast. Appeal 2010-008662 Application 11/141,537 9 Therefore, we agree with the Examiner that Miller describes the limitation “providing in the database for an association of each of the audio media plays.” Last, we are unpersuaded by Appellants’ arguments (Reply Br. 5) that Miller does not describe the limitations “wherein the plurality of header information includes at least two key descriptors that generate the contexting” and “wherein at least one of the at least two key descriptors is a term used in the audio media play,” as recited in claim 6. The Examiner found that Figure 4 of Miller, which includes drop down menus for the selection of a “Market” and “Station,” corresponds to the limitations “wherein the plurality of header information includes at least two key descriptors that generate the contexting” and “wherein at least one of the at least two key descriptors is a term used in the audio media play.” (Ans. 4-5, 28; Miller, fig. 4.) We agree with the Examiner. Figure 4 of Miller illustrates a window portion of a graphical user interface 40 with several drop down menus, including a market menu 72 (e.g., “Chicago”) and a station menu 74 (e.g., “WBBM”). (Col. 12, ll. 63- 66.) Figure 4 of Miller further illustrates a table that includes an entry of “ABC NWS-MORN” under the heading of “Program.” Accordingly, the program entitled “ABC NWS-MORN” includes a descriptor of ABC news, associated with the station menu 74 drop down menu. Therefore, Miller teaches the limitations “wherein the plurality of header information includes at least two key descriptors that generate the contexting” and “wherein at least one of the at least two key descriptors is a term used in the audio media play.” Appeal 2010-008662 Application 11/141,537 10 Appellants argue that “neither the depiction by Fig. 4 of Miller nor the figure’s corresponding description teaches or suggests that ‘Market’ or ‘Station’ is or reasonably can be ‘a term used in the audio media play’ as claimed.” (Reply Br. 5.) However, as discussed previously, from Figure 4 of Miller, the first “Program” listed is entitled “ABC NWS-MORN,” a description of ABC News or a “Station.” Therefore, we agree with the Examiner that Miller describes the limitations “wherein the plurality of header information includes at least two key descriptors that generate the contexting” and “wherein at least one of the at least two key descriptors is a term used in the audio media play.” Accordingly, we sustain the rejection of independent claim 6 under 35 U.S.C. § 102(b). Claims 10-12 depend from claim 6, and Appellants have not presented any substantive arguments with respect to these claims. Therefore, we sustain the rejection of claims 10-12 under 35 U.S.C. § 102(b), for the same reasons discussed with respect to independent claim 6. Independent claim 18 recites limitations similar to those discussed with respect to independent claim 6, and Appellants have not presented any substantive arguments with respect to this claim. We sustain the rejection of claim 18, as well as dependent claims 22-24, for the same reasons discussed with respect to claim 6. §103 Rejection – Miller and Liu Although Appellants nominally argue the rejection of dependent claims 7-9 and 19-21 separately (App. Br. 11), the arguments presented do not point out with particularity or explain why the limitations of the Appeal 2010-008662 Application 11/141,537 11 dependent claims are separately patentable. Instead, Appellants summarily allege that “Liu fails to cure the deficiencies of Miller . . . .” (Id.) We are not persuaded by these arguments for the reasons discussed with respect to claims 6 and 18, from which claims 7-9 and 19-21 depend. Accordingly, we sustain this rejection. §102 Rejection – Liu Independent claim 27 recites limitations similar to those discussed with respect to independent claim 1. We do not sustain the rejection of claim 27, as well as dependent claims 29-31, for the same reasons discussed with respect to claim 1. §103 Rejection – Liu and Miller Claim 28 depends from claim 27. Miller was cited by the Examiner for teaching additional features of claim 28. (Ans. 17-18.) However, the Examiner’s application of Miller does not cure the above noted deficiencies of Liu. DECISION The Examiner’s decision to reject claims 6-12 and 18-24 is affirmed. However, the Examiner’s decision to reject claims 1-5, 13-17, 25, and 26-31 is reversed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED-IN-PART Appeal 2010-008662 Application 11/141,537 12 tj Copy with citationCopy as parenthetical citation