Ex Parte Taylor

Patent Trial and Appeal Board

Jul 27, 2016

13675760 (P.T.A.B. Jul. 27, 2016)

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
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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.
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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:
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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-
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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);
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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.
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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.
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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
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