Ex Parte Wilkinson et al

Patent Trial and Appeal Board

Oct 27, 2016

13101643 (P.T.A.B. Oct. 27, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/101,643
7590
Patrick S, Yoder
Fletcher Yoder
05/05/2011
P.O.Box 692289
Houston, TX 77269-2289
10/28/2016
FIRST NAMED INVENTOR
Michael Shane Wilkinson
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.
311004-2/YOD
(NBCU:0088)
EXAMINER
5435
KADING, JOSHUA A
ART UNIT PAPER NUMBER
2479
MAILDATE DELIVERY MODE
10/28/2016 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 MICHAEL SHANE WILKINSON,
THOMAS BAUSE, ARTURO VERMOLEN,
SHEAU NG, and JOHN SULLIVAN
Appeal2015-004613
Application 13/101,643
Technology Center 2400
Before ST. JOHN COURTENAY III, CATHERINE SHIANG, and
JOYCE CRAIG, Administrative Patent Judges.
CRAIG, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 appeal under 35 U.S.C. § 134(a) from the Examiner's
Final Rejection of claims 1-28. We have jurisdiction under 35 U.S.C.
§ 6(b ).
We affirm.
1 According to Appellants, the real party in interest is NBCUniversal Media,
LLC. App. Br. 2.
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Application 13/101,643
INVENTION
Appellants' invention relates to multi-tiered automatic content
recognition and processing. Abstract. Claim 1 is illustrative and reads as
follows, with disputed limitations shown in italics:
1. A multi-tiered automatic content recognition and processing
method, comprising:
in a first tier entity, receiving, from an electronic device,
electronic device data and data indicative of digital content
being played on the electronic device;
analyzing, in the first tier entity, the electronic device data
to identify the electronic device;
analyzing, in the first tier entity, the data indicative of the
digital content to identify the digital content; and
transmitting from the first tier entity to an appropriate one
of a plurality of second tier entities the identity of the electronic
device and the identity of the digital content to facilitate activity
between the second tier entity and the electronic device based
upon the identified content and the identity of the electronic
device;
wherein the electronic device, the first tier entity, and the
second tier entity are all separate from one another.
REJECTIONS
Claims 1, 2, and 4--28 are rejected under 35 U.S.C. § 102(b) as
anticipated by Blasko (US 2001/0049620 Al; published Dec. 6, 2001).
Claim 3 is rejected under 35 U.S.C. § 103(a) as unpatentable over the
combination of Blasko and Levy (US 2004/0243634 Al; published Dec. 2,
2004).
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ANALYSIS
We have considered Appellants' arguments, but do not find them
persuasive of error. We agree with and adopt as our own the Examiner's
findings of facts and conclusions as set forth in the Examiner's Answer and
in the Final Office Action from which this appeal was taken. We provide
the following explanation for emphasis.
Claims 1, 4, 6, 8-13, and 15-28
In rejecting claim 1 as anticipated by Blasko, the Examiner found
Blasko discloses an evaluator 702 (the recited "first tier entity"), devices
associated with user interface 712 (the recited "electronic device"), and a
profile vector that contains the recited "device data" and is sent from
interface 712 to evaluator 702. Ans. 3 (citing Blasko i-fi-f 113, 118, 122, 129-
34). The Examiner also found evaluator 702 analyzes the profile vector to
determine a MAC_ID ("to identify the electronic device") and may also
identify interest in categories of shows ("to identify the digital content"). Id.
at 4 (citing Blasko i-fi-f 122, 129-33).
Appellants contend the Examiner erred in rejecting claim 1 because
the cited portions of Blasko do not disclose the disputed limitations in claim
1, shown in italics above. App. Br. 10. In particular, Appellants argue the
content identity is determined in Blasko prior to reaching the evaluator 702.
Id. at 11. Appellants further argue that Blasko teaches away from the
disputed limitations because Blasko suggests the profile vector should be
generated locally in a local appliance, and thus is not determined in
evaluator 702. Id. (citing Blasko i-fi-1 45--46).
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Appellants' arguments do not persuade us of Examiner error. We
agree with the Examiner that claim 1 does not require that the first tier entity
generate the recited "electronic device data and data indicative of digital
content being played on the electronic device." Ans. 4. Thus, Appellants'
"teaching away" argument, which relies on where the profile vector is
generated, is unpersuasive. Appellants' "teaching away" argument also fails
because Appellants have not identified where Blasko actually criticizes,
discredits, or otherwise discourages "in a first tier entity, receiving, from an
electronic device, electronic device data and data indicative of digital
content being played on the electronic device." See In re Fulton, 391 F.3d
1195, 1201 (Fed. Cir. 2004).
Appellants further contend Blasko does not disclose the limitation
"data indicative of digital content being played on the electronic device,"
recited in claim 1 (emphasis added). App. Br. 12. Appellants argue that the
profile vector in Blasko contains information about multiple programs that
have been watched during a "television viewing session" and, therefore,
does not contain "data indicative of digital content being played on the
electronic device." Id. In Appellants' view, an artisan of ordinary skill
would understand the disputed phrase to mean "content that is currently
being played" on the electronic device. Reply Br. 4 (emphasis added).
Appellants' arguments are unpersuasive. We agree with the Examiner
that claim 1 does not expressly limit the timeframe with which the content is
"being played." See Ans. 5. Moreover, paragraph 15 of Appellants'
Specification makes clear that "'playing' content on electronic devices ... is
intended to extend broadly" and that the content "may be played in real time
or near real time, and or may be stored on the electronic device or elsewhere
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for later playing." Spec. if 15. Thus, we are not persuaded that claim 1 is
limited to "content that is currently being played," as Appellants contend.
Appellants have not persuaded us that the Examiner's interpretation of
"being played" is unreasonable, overly broad, or inconsistent with
Appellants' Specification. Although Appellants argue the term "being" is
"of the present progressive tense and indicates continuing action" (Reply Br.
4), Appellants do not address the use of "being" in the past progressive
tense. Thus, Appellants have not persuaded us that the Examiner erred in
interpreting the term "being" as broad enough to include at least "was being"
and "is being" (see Ans. 5). Therefore, we agree with the Examiner's
analysis of Blasko that the vector profile contains "data indicative of digital
content being played on the electronic device."
For these reasons, we are not persuaded that the Examiner erred in
finding that Blasko discloses the limitations of claim 1.
Accordingly, we sustain the 35 U.S.C. § 103(a) rejection of
independent claim 1, as well as the 35 U.S.C. § 103(a) rejection of
independent claims 10, 15, 19, 22, and 27, which Appellants argue are
patentable for similar reasons. App. Br. 12. We also sustain the Examiner's
rejection of dependent claims 4, 6, 8, 9, 11-13, 16-18, 20, 21, 23-26, and
28, not argued separately. Id.
Claim 2
Claim 2 depends from claim 1 and further recites "wherein the content
is identified by identification code embedded in the content." App. Br. 20.
Appellants contend that, because Blasko discloses that information
about channel selection and viewing duration "'may be available only
locally at the television or STB', Blasko appears to suggest that the
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information is not embedded in the content, but instead is provided as a
function of the television or set-top-box." App. Br. 13 (emphasis omitted).
Appellants further contend Blasko discloses that it may be necessary to
extract programming information from other sources, which "appears at
odds with an interpretation that an identification code is embedded in the
content in Blasko." Id.
We disagree. The Examiner found that Blasko discloses certain
pieces of content-identifying information, such as program name, channel,
and viewing duration, for example, are "available only locally at the
television or STB," and are used to generate the profile vector. Ans. 6. The
Examiner further found that such information in Blasko is represented as
"code" because it is electronic information in the form of signals and
symbols used by a computer (e.g., STB) and is part of (i.e., embedded with)
the content (or any part of information associated with the content) at the
television or STB. Id. (citing Blasko i-fi-145, 87, 104, 121, and 125). In the
Answer, the Examiner further explained the broadest, reasonable
interpretations of the terms "content," "embedded," and "code." Ans. 5---6.
Appellants have not shown the Examiner's interpretations of "content,"
"embed," or "code" are unreasonable, overly broad, or inconsistent with
Appellants' Specification. See Reply Br. 5-7.
Therefore, we agree with the Examiner's analysis of Blasko and
sustain the Examiner's rejection of claim 2.
Claim 5
Claim 5 depends from claim 1 and further recites
selecting, in the first tier entity, one of a plurality of content
identification techniques based upon the electronic device data,
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and wherein the digital content is identified based upon the
selected content identification technique.
App. Br. 20-21. The Examiner found that using information in a profile
vector listing types of television programs based on category, such as in
Blasko, discloses the claimed identification technique. Ans. 7-8 (citing
Blasko i-fi-f 16, 122, 125).
Appellants contend the Examiner erred in finding Blasko discloses
"digital content is identified," as claim 5 requires. App. Br. 14. Appellants
specifically argue that "categorizing or determining transactional types is not
analogous to identifying digital content." Id. In Appellants' view,
identifying content as a comedy, as disclosed in Blasko, is insufficient to
identify content because the plain meaning of "identify" is "to know and say
who someone is or what something is." Id. at 15 (citing
http://www.merriam-webster.com/dictionary/identify). Appellants further
argue that Blasko does not disclose "a plurality of content identification
techniques," as recited in claim 5. Id. at 14. Appellants point to the content
identification techniques described in paragraph 16 of the Specification in
support of their arguments. Id.
Appellants' arguments do not persuade us of error. We agree with the
Examiner that Blasko discloses a plurality of content identification
techniques." Final Act. 7-8 (citing Blasko i-fi-f 113, 118, 122-124, 134). We
also agree with the Examiner that the non-exhaustive list of examples of
content identification techniques set forth in Appellants' Specification do not
limit claim 5. See Ans. 7. The Examiner found, and we agree, that
Appellants' Specification identifies embedded code as a means to identify
content. Id. (citing Spec. i-f 16). For the reasons discussed above with regard
to claim 2, on this record, we are not persuaded that the Examiner erred in
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finding that identifying content as a comedy based on electronic information
in the form of signals and symbols in a profile vector (embedded code).
Moreover, we are not persuaded that the dictionary definition of "identify"
that Appellants provide precludes identifying digital content as a comedy, as
the definition does not require particular identifying information, such as a
name. In any event, the currently dated dictionary definitions cited by
Appellants are not credible evidence for our analysis.
For these reasons, we sustain the Examiner's rejection of claim 5.
Claims 7 and 14
Claim 7 depends from claim 1 and further recites "selecting the
appropriate one of the plurality of second tier entities based upon the identity
of the digital content." App. Br. 21.
Appellants contend that, in claim 1, the content identity and device
identity is transmitted to "one of a plurality of second tier entities" "to
facilitate activity between the second tier entity and the electronic device
based upon the identified content and the identity of the electronic device."
Appellants argue that Blasko discloses no activity that is facilitated between
either correlation server 708 or advertisement server 710 and the electronic
device (e.g., TV). App. Br. 16. Appellants further argue, as they did for
claims 2 and 5, discussed above, that identifying content as comedy is not
sufficient to meet the recited "identity of the digital content." Id. at 17.
We are not persuaded the Examiner erred. We are not persuaded that
advertisement server 710' s determination of appropriate advertisements for
interface 712, based in part on identified content, is insufficient to disclose
the disputed limitation in claim 1. Appellants have not persuaded us that the
broad language of claim 1 precludes the type of activity identified by the
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Examiner. Additionally, we are not persuaded the Examiner erred in finding
Blasko teaches "identity of the digital content," recited in claim 7, for the
reasons set forth above for claims 2 and 5.
For these reasons, we sustain the Examiner's§ 102(b) rejection of
claim 7, as well as the Examiner's§ 102(b) rejection of claim 14, which
Appellants argue is patentable for similar reasons. App. Br. 16.
Claim 3
Claim 3 depends from claim 1 and further recites "wherein the content
is identified by a digital watermark." App. Br. 20. The Examiner found that
Levy teaches the recited digital watermark. Final Act. 15.
In arguing that claim 3 is patentable, Appellants rely on the arguments
made for claim 1. Id. at 18. Because we do not find those arguments
persuasive, for the reasons discussed above, we also sustain the Examiner's
rejection of claim 3.
Reply Brief
To the extent Appellants advance new arguments in the Reply Brief
not in response to a shift in the Examiner's position in the Answer, we note
arguments raised in a Reply Brief that were not raised in the Appeal Brief or
are not responsive to arguments raised in the Examiner's Answer will not be
considered except for good cause. See 37 C.F.R. § 41.41(b)(2).
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DECISION
We affirm the decision of the Examiner rejecting claims 1-28.
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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