Ex Parte TaylorDownload PDFPatent Trial and Appeal BoardJul 27, 201613675760 (P.T.A.B. Jul. 27, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/675,760 11113/2012 70336 7590 07/28/2016 Seed IP Law Group/EchoStar (290110) 701 FIFTH A VENUE SUITE 5400 SEATTLE, WA 98104 FIRST NAMED INVENTOR Thomas S. Taylor 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. ES-1046.1 (290110.417Cl) 6339 EXAMINER SHELEHEDA, JAMES R ART UNIT PAPER NUMBER 2424 MAILDATE DELIVERY MODE 07/28/2016 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 THOMAS S. TAYLOR Appeal2015-000529 Application 13/675,760 Technology Center 2400 Before JEFFREY S. SMITH, HUNG H. BUI, and JOHN A. EV ANS, Administrative Patent Judges. BUI, Administrative Patent Judge. DECISION ON APPEAL Appellant 1 seeks our review under 35 U.S.C. § 134(a) of the Examiner's Final Office Action rejecting claims 1-20, which are all claims pending on appeal. We have jurisdiction under 35 U.S.C. § 6(b ). We AFFIRM. 2 1 According to Appellant, the real party in interest is EchoStar Technologies LLC. App. Br. 2. 2 Our Decision refers to Appellant's Appeal Brief filed May 28, 2014 ("App. Br."); Reply Brief filed October 7, 2014 ("Reply Br."); Examiner's Answer mailed August 7, 2014 ("Ans."); Final Office Action mailed November 26, 2013 ("Final Act."); and original Specification filed November 13, 2012 ("Spec."). Appeal2015-000529 Application 13/675,760 STATEMENT OF THE CASE Appellant's invention relates to an apparatus and method for synchronizing communication of content to a mobile device and a presentation device. Spec. 1 :9-11. Programing is received and output by a mobile device (e.g., a television show received and played on a cellular telephone). Synchronization information embedded in the programming includes a marker coordinated with a point in real time. Id. at 7: 15-23, 11:16-24. Concurrent to the receipt and playback of the programming by the mobile device, a corresponding stream of presentable programming is received by a receiving device (e.g., a set top box, a television receiver, and the like). A synchronizer in the mobile device analyzes the synchronization information and directs the output of the received presentable programming content based on the synchronization information. Id. at 12:22-13: 12. This way, the programming is presented by the mobile device at about the same time the corresponding programming is presented on the receiving device. For example, a football game can be presented to a user, via the mobile device (cellular telephone) and the receiving device (e.g., TV at home) at approximately the same time. Id. at 10: 16. Claim 1 is independent and describes Appellant's invention, as reproduced below with disputed limitations in italics: 1. A mobile device, comprising: a receiver operable to receive a portion of a program, the portion of the program having presentable programming content and embedded synchronization information, the synchronization information including a marker coordinated with a point in real time, wherein the received portion of the program corresponds in 2 Appeal2015-000529 Application 13/675,760 time to a like portion of the presentable programming content receivable by a receiving device; an output element operable to present the received presentable programming content; a processor communicatively coupled to the receiver and the output element, the processor operable to communicate the received presentable programming content to the output element at approximately a same time the like portion of the presentable programming content is presentable on a presentation device coupleable to the receiving device; and a synchronizer operable to analyze the synchronization information embedded in the received portion of the program, the synchronizer further operable to direct the processor to present the received presentable programming content to the output element based on the synchronization information. App. Br. 32 (Claims App'x.) (emphasis added). Examiner's Rejections (1) Claims 15-20 stand rejected under 35 U.S.C. § 101 because the claimed invention is directed to non-statutory subject matter. Ans. 2-3. (2) Claims 1-7, 9-11, 13-18, and 20 stand rejected under 35 U.S.C. § 102(e) as being anticipated by Aoki et al. (US 2007/0283380 Al; Dec. 6, 2007). Final Act. 4--8. (3) Claims 8, 12, and 19 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Aoki (US 2007/0283380 Al; Dec. 6, 2007) and Weinberg et al. (US 2004/0103444 Al; May 27, 2004). Final Ans. 8-9. 3 Appeal2015-000529 Application 13/675,760 ANALYSIS 35 US.C. § 101 Rejection of Claims 15-20 In support of the 35 U.S.C. § 101 rejection of claims 15-20, the Examiner finds the preamble "computer readable medium" as recited in claims 15-20 can be broadly interpreted to cover "forms of non-transitory tangible medium" or "a signal per se" and, as such, is directed to cover non- statutory subject matter under 35 U.S.C. § 101. Ans. 2-3. Appellant has indicated a willingness to amend claims 15-20 to recite "non-transitory" to overcome the presumption that the preamble "computer readable medium" encompasses signals or carrier waves (Reply Br. 2), as required under our precedent in Ex parte Mewherter, 107 USPQ2d 1857 (PTAB 2013) (precedential) (expanded panel). Guidance on this point is provided in U.S. Patent & Trademark Office, Subject Matter Eligibility of Computer Readable Media, 1351 Off. Gaz. Pat. Office 212 (Feb. 23, 2010). For the reasons set forth, we sustain the Examiner's 35 U.S.C. § 101 rejection of Appellant's so called Beauregard claims 15-20 as directed to non-statutory subject matter under 35 U.S.C. § 101. Appellant may revise claims 15-20 to recite "non-transitory" in order to overcome the Examiner's 35 U.S.C. § 101 rejection. 35 US.C. § 102(e) Rejection of Claims 1-7, 9-11, 13-18, and 20 based on Aoki In support of the anticipation rejection of claim 1, and similarly claims 9 and 15, the Examiner finds Aoki teaches a mobile device comprising, inter alia: 4 Appeal2015-000529 Application 13/675,760 a receiver operable to receive a portion of a program (paragraph 56, 72, 127), the portion of the program having presentable programming content (paragraph 56, 72, 127), and embedded synchronization information (paragraph 99, 102-103), the synchronization information including a marker coordinated with a point in real time (paragraph 99, 102-103) Final Act. 4 (citing Aoki i-fi-156, 72, 99, 102-103, 127, Figs. 9 and 11). Aoki's Figure 11 is reproduced below: 1100~ 1101 START Receive GOP Alignment ID and State Update State 1103 1113 NO Determine Social to View Balance Compare My Position with Leader Adjust Playback Speed, if Appropriate 1109 1111 FIG. 11 Aoki's Figure 11 shows synchronization information in the form of "a state exchange-input thread 1100" received at a playback device (e.g., mobile device) including GOP alignment ID and state information. As shown in Figure 11, Aoki teaches the use of: a group of pictures (GOP) alignment identification (ID) (in an embodiment that has a group of pictures, for example, MPEG- 5 Appeal2015-000529 Application 13/675,760 2) from the audience member's [playback] device that indicates the audience member's playback position on the experiential data stream ... If the device that receives the GOP alignment ID is tracking or is in one of the "syncing" states, the state exchange- input thread 1100 continues to a 'compare playback position with leader' procedure 1109 that compares the local audience member's playback position in the experiential data stream with the remote audience member's playback position in the experiential data stream. Aoki iii! 102-103. Appellant disputes the Examiner's factual findings regarding Aoki. In particular, Appellant acknowledges Aoki teaches a social TV system, shown in Figure 4, wherein multiple people at different locations can share a program in real-time at respective playback devices 403, 405, and 407, via control links. App. Br. 12 (citing Aoki iii! 18-20). Appellant also acknowledges Aoki teaches the use of a GOP header to coordinate synchronized real time playback. Id. at 24--25. Hov,rever, i\.ppellant argue Aoki does not teach a "receiver operable to receive a portion of a program .. . having presentable programming content and embedded synchronization information . . . including a marker coordinated with a point in real time" as recited in claims 1, 9, and 15. Id. at 11-28. According to Appellant, (1) Aoki delivers conventional multimedia programming using conventional program delivery mechanisms, and his multimedia program delivery mechanisms are separate and distinct from his control links. Neither Aoki 's apparatus nor his system as a whole receives any embedded synchronization information in any program portions as required by the receiver of claim 1 (id. at 15); 6 Appeal2015-000529 Application 13/675,760 (2) none of Aoki ;s [playback] devices expressly or inherently receive any programming having embedded synchronization information (id. at 28); (3) A GOP header is not coordinated with a point in real time; a GOP header is coordinated with a point in relative time. That is, the "GOP and its time within the video" is very different from a "marker coordinated with a point in real time" (id. at 25); and ( 4) Aoki does not expressly or inherently teach any such receiver. Aoki does not teach any marker coordinated with a point in real time embedded in programming (id. at 28). We do not find Appellant's arguments persuasive. Instead, we find the Examiner has provided a comprehensive response to Appellant's arguments supported by a preponderance of evidence. Ans. 3---6. As such, we adopt the Examiner's findings and explanations provided therein. Id. For additional emphasis, we note claim terms are given their broadest reasonable interpretation consistent with the specification. In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1369 (Fed. Cir. 2004). Under the broadest reasonable interpretation, claim terms are given their ordinary and customary meaning, as would be understood by one of ordinary skill in the art in the context of the entire disclosure. In re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007). The term "marker" is not defined by Appellant's Specification. Rather, Appellant's Specification describes that: synchronization information 206 may indicate the start of a program, end of a program, or any other time or point of interest in the program. Examples of synchronization information 206 include, but are not limited to, timing information, real-time markers, sequencing tags, coded identifiers, or the like. 7 Appeal2015-000529 Application 13/675,760 Spec. 11 :20-25. In other words, the marker is nothing more than timing information to indicate "the start of a program, end of a program, or any other time or point of interest in the program." Id. Based on Appellant's Specification and its plain and ordinary meaning, the Examiner has broadly interpreted the term "marker" included in the "synchronization information" as recited in Appellant's claim 1 and similarly recited in claims 9 and 15 as encompassing Aoki's GOP alignment identification (ID) within a data stream used to synchronize playback at different playback devices and to indicate the audience member's playback position on the data stream. Ans. 3--4 (citing Aoki i-fi-199, 102-103, Fig. 11, steps 1101-1111). We find the Examiner's interpretation reasonable and consistent with Appellant's Specification. Appellant further responds that "[t]he GOP ID information of Aoki does not teach the claimed embedded . .. marker coordinated with a point in real time. Instead, the GOP ID information of Aoki represents synchronization data that will later be coordinated with a point in real time, but Aoki does not teach a synchronization that is coordinated with a point in real time." Reply Br. 4. However, we remain unpersuaded because Aoki's GOP alignment identification (ID) is also embedded within a data stream and is used to coordinate with a point in real time, i.e., playback position in the data stream. Aoki i-fi-199, 102-103. For the reasons set forth above, Appellant has not demonstrated Examiner error. As such, we sustain the Examiner's anticipation rejection of claim 1 and similarly, claims 9 and 15 based on Aoki, and their respective dependent claims 2-7, 10-11, 13-14, 16-18, and 20, which Appellant does not argue separately. 8 Appeal2015-000529 Application 13/675,760 35 USC§ 103(a) Rejection of Claims 8, 12, and 19 based on Aoki and Weinberg With respect to dependent claims 8, 12, and 19, Appellant does not argue separately from claims 1, 9, and 15. As such, we also sustain the Examiner's obviousness rejection of claims 8, 12, and 19. CONCLUSION On the record before us, we conclude Appellant has not demonstrated the Examiner erred in rejecting claims 1-20 under 35 U.S.C. § 101, § 102(e) and§ 103(a). DECISION As such, we AFFIRM the Examiner's final rejection of claims 1-20. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv). AFFIRMED 9 Copy with citationCopy as parenthetical citation