Ex Parte Virzi et al

Patent Trial and Appeal Board

Jul 25, 2016

11693758 (P.T.A.B. Jul. 25, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
111693,758 03/30/2007
25537 7590 07/27/2016
VERIZON
PA TENT MANAGEMENT GROUP
1320 North Court House Road
9th Floor
ARLINGTON, VA 22201-2909
FIRST NAMED INVENTOR
Robert Virzi
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.
20060344 9810
EXAMINER
CHIN, RICKY
ART UNIT PAPER NUMBER
2423
NOTIFICATION DATE DELIVERY MODE
07/27/2016 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):
patents@verizon.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ROBERT VIRZI and JOEL ANGIOLILLO
Appeal2014-005023
Application 11/693,758
Technology Center 2400
Before JOHN A. JEFFERY, DAVID M. KOHUT, and
MONICA S. ULLAGADDI, Administrative Patent Judges.
JEFFERY, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's
decision to reject claims 1-3, 6-16, and 19-22. We have jurisdiction under
35 U.S.C. § 6(b). We affirm.
STATEMENT OF THE CASE
Appellants' invention enables alphanumeric channel changing by (1)
receiving an entry corresponding to a channel name; (2) matching the name
against channel data stored in a database; and (3) providing the channel
based on the match. See generally Abstract. Claim 1 is illustrative:
1. A method, comprising:
populating at least one database with channel data from
metadata within one or more channels, wherein the channel data
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Application 11/693,758
comprises at least one of channel number, channel name, list of
programs, program start and end times for each of the programs,
and ratings;
receiving an entry indicating that subsequent entries are
alphabetic entries;
receiving one or more subsequent entries corresponding to
a partial name of a channel;
matching the one or more subsequent entries against the
channel data stored in the database to form a plurality of matches,
wherein the plurality of matches are formed by popularity ratings
over a range of viewers and frequency of use based on a pattern
of use for a user within a particular time period corresponding to
a time the one or more subsequent entries are received and
wherein the frequency of use is independent of usage outside of
the particular time period;
automatically completing the one or more subsequent
entries corresponding to metadata associated with a channel
using the at least one of the plurality of matches;
transmitting a video broadcast signal of at least one
channel corresponding to the one or more subsequent entries
based on at least one of the plurality of matches; and
providing, at a display device, a name of the at least one
channel corresponding to the one or more subsequent entries
based on the match and enabling selection of at least one of the
one or more subsequent entries based on the match.
THE REJECTION
The Examiner rejected claims 1-3, 6-16, and 19-22 under 35 U.S.C.
§ 103(a) as unpatentable over Bayrakeri (US 7,373,652 Bl; May 13, 2008),
Rao (US 2006/0130098 Al; June 15, 2006) ("Rao '098"), Torii (US
2005/0183036 Al; Aug. 18, 2005), Ramer (US 7,548,915 B2; June 16,
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Application 11/693,758
2009), Rao (US 2010/0299692 Al; Nov. 25, 2010) ("Rao '692"), and
Boillot (US 2008/0235621 Al; Sept. 25, 2008). Ans. 2-9. 1
CONTENTIONS
The Examiner finds that Bayrakeri ( 1) populates at least one database
with the recited channel data; (2) receives entries corresponding to at least a
partial name of a channel; (3) matches the entries against the stored channel
data; ( 4) provides a corresponding channel to a display device; and ( 5)
enables selecting subsequent entries based on the match. Ans. 2-3. The
Examiner acknowledges that Bayrakeri does not, among other things,
receive an entry indicating that subsequent entries are alphabetic entries.
Ans. 3--4. The Examiner, however, cites (1) Rao '098 for receiving an entry
indicating an alphabetic entry mode, and (2) Torii for indicating that
subsequent entries are alphabetic entries, namely by switching input modes
via a phone's power key. Ans. 4.
The Examiner also acknowledges that the Bayrakeri/Rao '098/Torii
system does not form matches by (1) viewer popularity ratings, and (2) use
frequency for a particular time period as claimed, but cites Rao '692 and
Ramer for teaching those elements, respectively. Ans. 4-5. The Examiner
also acknowledges that the Bayrakeri/Rao '098/Torii/Ramer system does not
automatically complete the subsequent entries as claimed, but cites Boillot
for teaching this feature. Ans. 6. The Examiner adds that Rao '098 (1)
transmits a video broadcast signal of at least one channel corresponding to
1 Throughout this opinion, we refer to ( 1) the Appeal Brief filed August 13,
2013 ("App. Br."); (2) the Examiner's Answer mailed December 19, 2013
("Ans."); and (3) the Reply Brief filed January 22, 2014 ("Reply Br.").
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Application 11/693,758
the subsequent entries based on at least one match, and (2) provides the
channel's name at the display device. Ans. 3.
Based on these collective teachings, the Examiner concludes that
claim 1 would have been obvious. Ans. 2---6.
Appellants argue that the cited prior art does not transmit a video
broadcast signal of at least one channel corresponding to one or more
subsequent entries based on at least one match, as claimed. App. Br. 8-10;
Reply Br. 5---6. Although Appellants acknowledge that Rao '098's channel
representations in Figure 4 are derived from matches from a search,
Appellants contend that these representations are not video broadcast
signals, but rather merely allow the user to navigate to a represented item,
such as tuning to a represented channel. App. Br. 9; Reply Br. 4--5.
Appellants add the Examiner's reliance on Rao '098 and Torii for
teaching receiving an entry indicating that subsequent entries are alphabetic
entries is misplaced. App. Br. 10-11; Reply Br. 6-8. According to
Appellants, the fact that alphabetic text is entered in a search window in the
electronic program guide (EPG) in Rao '098's Figure 4 does not indicate
that subsequent entries are alphabetic text, nor is there a need for such an
indication given Rao '098's key entries representing only letters. App. Br.
10-11. Appellants add that not only is Torii's power key used to switch
between Japanese, English, and number modes, it is unclear why the
Bayrakeri/Rao '098 system would be modified to switch between alphabetic
and numeric entries as the Examiner proposes given Rao '098's full
keyboard. App. Br. 11-12; Reply Br. 8.
Lastly, Appellants argue that the Examiner provides no proper reason
to combine the cited references and, therefore, the proposed combination
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Application 11/693,758
lacks a rational underpinning and is based on impermissible hindsight. App.
Br. 12-14; Reply Br. 9-10.
ISSUES
I. Under§ 103, has the Examiner erred in rejecting claim 1 by finding
that the cited references collectively would have taught or suggested (1)
receiving an entry indicating that subsequent entries are alphabetic entries,
and (2) transmitting a video broadcast signal of at least one channel
corresponding to one or more subsequent entries based on at least one of
plural matches?
II. Is the Examiner's proposed combination of the cited references
supported by articulated reasoning with some rational underpinning to
justify the Examiner's obviousness conclusion?
ANALYSIS
Claim 1
We begin by noting, as do Appellants (App. Br. 12; Reply Br. 9), that
the Examiner relies on six references to reject the claims. That alone is not
dispositive of error in the Examiner's rejection, for it is well settled that the
number of references cited is not a factor in assessing the propriety of an
obviousness rejection, but rather what the references would have meant to
ordinarily skilled artisans. See In re Gorman, 933 F.2d 982, 986 (Fed. Cir.
1991 ). Accord Ans. 11 (citing Gorman).
Notably, the Examiner's findings regarding four of the six cited
references, namely Bayrakeri, Rao '692, Ramer, and Boillot, are undisputed,
apart from Appellants' contention that Bayrakeri lacks foreign language
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functionality (unlike Torii) in connection with the above-noted
combinability argument. See App. Br. 12, 14. Rather, this dispute turns on
the Examiner's reliance on Rao '098 and Torii in connection with the
disputed limitations noted in our issue statement, and the cited references'
comb inability.
On this record, we see no error in the Examiner's reliance on Rao
'098 and Torii for teaching receiving an entry indicating that subsequent
entries are alphabetic entries, as claimed. First, the EPG in Rao '098's
Figure 4 includes a keyboard 404 for entering alphabetic characters, and a
"NUMBERS" key. Rao '098 i-f 49. Although Rao '098 does not specify the
function of the "NUMBERS" key, skilled artisans would nonetheless
understand that at least one plausible function of this key is to enter numbers
instead of letters-a function that even Appellants acknowledge as a
possibility. See Reply Br. 7. This functionality, then, at least suggests that
characters entered after selecting the "NUMBERS" key are only numbers;
otherwise, entered characters are only letters.
Therefore, by not pressing the "NUMBERS" key, Rao '098 at least
suggests that all letter-based entries-including subsequent such entries-
would be alphabetic. See Rao '098 i-f 49. Indicating such subsequent entries
via a received entry from, for example, a dedicated key, would have been
obvious, particularly in view of Torii whose system enables users to switch
between alphabetic and numeric input modes by merely pressing a power
switch as the Examiner indicates. Ans. 4, 10-11; Torii i-fi-165---68; Fig. 1.
The Examiner's position, then, that providing a dedicated
"ALPHABETICAL" key similar to the "NUMBERS" key in Rao '098's
Figure 4 has at least a rational basis to enable users to easily toggle between
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input modes by merely pressing the associated key-a toggling function at
least suggested by Torii's key-based input mode selection. That Torii's
input mode selection includes additional language-based modes as
Appellants indicate (App. Br. 11; Reply Br. 8) is of no consequence here, for
Torii nonetheless teaches switching between alphabetic and numeric input
modes using a key. Ans. 10-11. And even assuming, without deciding, that
Rao '098 discloses a "full" keyboard as Appellants contend (App. Br. 11-
12; Reply Br. 8), we still see no reason why a dedicated key could not be
provided to indicate alphabetic entries (including subsequent entries) as the
Examiner proposes in a manner similar to numeric entries, and to enable
easy and intuitive toggling between input modes. Ans. 10-11. Such an
enhancement uses prior art elements predictably according to their
established functions-an obvious improvement. See KSR Int 'l Co. v.
Teleflex, Inc., 550 U.S. 398, 417 (2007).
Nor do we find error in the Examiner's reliance on Rao '098 for
teaching the recited transmitting step. Ans. 3, 9-10 (citing Rao '098 i-fi-f 18,
47; Figs. 1, 3-5). As the Examiner indicates, Rao '098's channel
representations enable the user to, among other things, (1) tune to a
represented channel, and (2) load a representative content item from a
database. Ans. 10 (citing Rao '098 i147). Given Rao '098's broadcast
network 106 in Figure 1 as noted in paragraph 18, Rao '098 at least suggests
transmitting a video broadcast signal of at least one channel based on a
match as claimed.
Although Appellants acknowledge that Rao '098's representations in
Figure 4 are derived from at least one match from a search, Appellants
nonetheless contend that the representations are not video broadcast signals
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of at least one channel as claimed. App. Br. 9; Reply Br. 4--5. This
argument, however, does not persuasively rebut the Examiner's position that
is based on Rao '098's broadcast network transmission noted above. That
is, tuning to a channel on a broadcast network to receive content delivered
on that channel as Rao '098 suggests would involve transmitting a video
broadcast signal associated with that content. Notably, claim 1 does not
specify what element performs the transmitting step. As such, nothing in the
claim precludes further transmitting a video broadcast signal to the user's
receiver after tuning to a particular channel. That is, nothing in the claim
precludes further transmitting a video broadcast signal to a particular user
(e.g., from a set-top box to a television), where the signal is also transmitted
from a content provider. Accord Spec. i-f 14 (noting that the media control
station 122 may include an output to transmit the media signal to the display
device 130); see also id. i-f 31 (noting that once a viewer chooses a desired
channel, the media control station 122 passes the signal of the desired
channel from a TV service provider to the display device).
Therefore, Appellants' arguments regarding Rao '098's alleged
shortcomings in this regard (App. Br. 8-10; Reply Br. 5-6) are unavailing,
for they are not commensurate with the scope of the claim, which does not
preclude the Examiner's interpretation. To the extent that Appellants
attempt to argue Rao '098's alleged shortcomings in connection with the last
clause of the claim, namely the "providing" and "enabling selection" steps
(Reply Br. 6), such an argument raised for the first time in the Reply Brief is
waived as untimely. See 37 C.F.R. § 41.41(b)(2) (2012) ("Any argument
raised in the reply brief which was not raised in the appeal brief, or is not
responsive to an argument raised in the examiner's answer, including any
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designated new ground of rejection, will not be considered by the Board for
purposes of the present appeal, unless good cause is shown.").
In any event, Appellants' arguments regarding the last clause of claim
1 do not persuasively rebut the Examiner's reliance on Bayrakeri and Rao
'098 for teaching these elements. See Ans. 3. Although Appellants contend
that the "providing" and "enabling selection" steps of claim 1 's last clause
occur after the "transmitting" step,2 the claim recites no such temporal
requirement. It is well settled that method steps are not ordinarily construed
to require an order where, as here, neither the claims nor the Specification
expressly or implicitly requires performance in that order. See Altiris v.
Symantec Corp., 318 F.3d 1363, 1369 (Fed. Cir. 2003). In fact, nothing in
the claim precludes the steps of the last two clauses of claim 1 from
occurring simultaneously. Therefore, the Examiner's reliance on the
collective teachings of Bayrakeri and Rao '098 for teaching these steps is
reasonable, particularly since the Examiner's findings regarding Bayrakeri
(Ans. 3) are undisputed.
Lastly, we see no error in the Examiner's rationale to combine the
references as proposed. For the reasons noted above and by the Examiner,
the Examiner's proposed enhancements use prior art elements predictably
according to their established functions to yield predictable results and,
therefore, obvious improvements. See KSR Int'! Co. v. Teleflex, Inc., 550
U.S. 398, 417 (2007). Appellants' contention that the Examiner's rejection
2 See Reply Br. 6 ("Accordingly, Rao '098 does not disclose both
'transmitting a video broadcast signal' and subsequently 'providing ... a
name of the at least one channel ... and enabling selection of the at least one
or more subsequent entries based on the match,' as claimed.") (emphasis in
original).
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is based entirely on "improper hindsight conjecture" and inappropriately
uses Appellants' statement of the problem in formulating the rejection (App.
Br. 12-14; Reply Br. 9-10) is unavailing.
Appellants' arguments regarding the individual shortcomings of Torii,
Bayrakeri, and Rao '098 (App. Br. 12-14) do not show nonobviousness
where, as here, the rejection is based on the cited references' collective
teachings. See In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir.
1986). To be sure, "[a]ny judgment on obviousness is in a sense necessarily
a reconstruction based upon hindsight reasoning .... " In re McLaughlin,
443 F.2d 1392, 1395 (CCPA 1971). But where, as here, the record tends to
suggest that the Examiner's determination accounts for only knowledge
within the level of ordinary skill when the claimed invention was made, and
does not include knowledge gleaned only from Appellants' disclosure, such
a reconstruction is proper. See id. On this record, then, we find the
Examiner's proposed combination is supported by articulated reasoning with
some rational underpinning to justify the Examiner's obviousness
conclusion.
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 1.
Claims 2, 3, 6--16, and 19-22
We likewise sustain the Examiner's rejection of claims 2, 3, 6-16, and
19-22. Apart from summarily asserting that these claims are separately
patentable because the cited prior art allegedly fails to disclose the recited
features (App. Br. 14--18; Reply Br. 9-10), Appellants do not particularly
show error in the Examiner's findings and conclusions in rejecting these
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claims. See 37 C.F.R. § 41.37(c)(l)(vii) (noting that an argument that
merely points out what a claim recites is unpersuasive). Accord In re Lovin,
652 F.3d 1349, 1357 (Fed. Cir. 2011) ("[T]he Board reasonably interpreted
Rule 41.37 to require more substantive arguments in an appeal brief than a
mere recitation of the claim elements and a naked assertion that the
corresponding elements were not found in the prior art."). Therefore, we are
not persuaded that the Examiner erred in rejecting claims 2, 3, 6-16, and 19-
22.
CONCLUSION
The Examiner did not err in rejecting claims 1-3, 6-16, and 19-22
under§ 103.
DECISION
The Examiner's decision rejecting claims 1-3, 6-16, and 19-22 is
affirmed.
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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