ARRIS Enterprises, Inc.

Patent Trials and Appeals Board

Jun 25, 2020

14313235 - (D) (P.T.A.B. Jun. 25, 2020)

UNITED STATES PATENT AND TRADEMARK OFFICE
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
14/313,235 06/24/2014 David M. Bjordammen ARRH0024 8599
21924 7590 06/25/2020
ARRIS Enterprises LLC
Legal Dept - Docketing
101 Tournament Drive
HORSHAM, PA 19044
EXAMINER
REAGAN, JAMES A
ART UNIT PAPER NUMBER
3688
NOTIFICATION DATE DELIVERY MODE
06/25/2020 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):
ARRIS.docketing@commscope.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte DAVID M. BJORDAMMEN
____________

Appeal 2020-000656
Application 14/313,235
Technology Center 3600
____________

Before ELENI MANTIS MERCADER, NORMAN H. BEAMER, and
GARTH D. BAER, Administrative Patent Judges.

MANTIS MERCADER, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2020-000656
Application 14/313,235

2
STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
final rejection of claims 1–19, which are all the pending claims.2 We have
jurisdiction under 35 U.S.C. § 6(b).
We affirm.

THE INVENTION
Appellant’s claimed invention is directed to “[a]n adaptive bit rate
system us[ing] adaptive streaming to deliver content to client devices
capable of adaptive bit rate streaming” and “include[s] monitoring a client
action or inaction as it relates to advertisement skipping for future
advertisement selections” (Abstract).
Independent claim 1, reproduced below with emphases added, is
representative of the subject matter on appeal:
1. A network-based method for ad management in an
adaptive bit rate network, the method comprising:

generating a manifest file referencing adaptive bit rate
media segments that occur within a first programming content
period of at least one of a plurality of differently encoded
versions of a programming content for retrieval by a client’s
adaptive bit rate client device,

identifying a start of an ad break that is associated with
the manifest file;

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies ARRIS Technology, Inc. as the real
party in interest (Appeal Br. 3).
2 Claim 20 was cancelled in an after-final amendment entered by the
Examiner on Jan. 14, 2019.
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Application 14/313,235

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responsive to an indication that desired adaptive bit rate
media segments during the first programming period have been
retrieved:

selecting a first advertisement content using a
network-based management system for providing to the client’s
adaptive bit rate client device;

appending to the manifest file references to the
first advertisement content, wherein the first advertisement is
associated with a first playout time;

identifying whether the adaptive bit rate client device
skips the first advertisement content during the playout time;
and

correlating the client’s adaptive bit rate client device with
the first advertisement based on the skipping action in a
subscriber history storage for reference for selecting future
advertisements for the client, the correlating based on the
network-based management system independent of control by
the client that occurred prior to the first programming content
period.

(Claims Appendix (Appeal Br. 8)).

REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is the following:
Name Reference Date
Dmitriev US 7,806,329 B2 Oct. 5, 2010
Stern US 8,855,470 B2 Oct. 7, 2014
Dhruv US 9,049,494 B2 June 2, 2015
Henry US 9,082,092 B1 July 14, 2015
Shkedi US 2009/0172723 A1 July 2, 2009
Swaminathan US 2014/0040026 A1 Feb. 6, 2014
Rapaport US 2014/0236953 A1 Aug. 21, 2014
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Application 14/313,235

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REJECTIONS
The Examiner made the following rejections:
Claims 1–3, 6, 8–12, and 14–19 stand rejected under 35 U.S.C. § 103
as being unpatentable over Swaminathan, Henry, Dmitriev, and Rapaport.
Final Act. 7.
Claim 4 stands rejected under 35 U.S.C. § 103 as being unpatentable
over Swaminathan, Henry, Dmitriev, Rapaport, and Shkedi. Final Act. 20.
Claims 5 and 7 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Swaminathan, Henry, Dmitriev, Rapaport, and Stern.
Final Act. 21.
Claim 13 stands rejected under 35 U.S.C. § 103 as being unpatentable
over Swaminathan, Henry, Dmitriev, Rapaport, and Dhruv. Final Act. 23.

ISSUE
The pivotal issue is whether the Examiner erred in finding that the
combination of Swaminathan, Henry, Dmitriev, and Rapaport teaches or
suggests the limitation of “the correlating based on the network-based
management system independent of control by the client that occurred prior
to the first programming content period,” as recited in independent claim 1.

ANALYSIS
We adopt the Examiner’s findings in the Answer and Final Office
Action and we add the following primarily for emphasis. We note that if
Appellant failed to present arguments on a particular rejection, we will not
unilaterally review those uncontested aspects of the rejection. See Ex parte
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Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential); Hyatt v. Dudas,
551 F.3d 1307, 1313–14 (Fed. Cir. 2008) (the Board may treat arguments
Appellant failed to make for a given ground of rejection as waived).
Appellant argues that the claimed
“first programming content period” is the current period where
the ad insertion decision is being made. Swaminathan as well as
the other cited references used client control from the far past

(Appeal Br. 6). Appellant contends that the cited portions of Rapaport do
not teach or suggest the claimed “occurred prior to the first programming
content period,” because
the citation of Rapaport to show this makes no sense. Rapaport
discloses a system that includes a chat room where occupants
are discussing different topics, where those topics can be
dynamically changed. Rapaport has nothing to do with inserting
ads into media program content as claimed in claim 1.
Paragraph [238] of Rapaport is dealing with collection of
demographic information about users who are discussing
different topics in the chat room. Paragraph [298] of Rapaport
discusses how users of chat rooms can vote on different topics
to be discussed

(Appeal Br. 6).
We are not persuaded by Appellant’s arguments. The Examiner finds,
and we agree, that Rapaport teaches “correlations between the user profile,
history, knowledge-based rules, and the selection of marketing and
advertising activities” (Ans. 5, citing Rapaport ¶ 238). For example, this
portion of Rapaport teaches a system that
can automatically collect demographic and credential statistics
about the kinds of users who most often visit what topic node
and when and/or under what other surrounding conditions.
Marketing and advertising professionals can use the collected
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statistics to detect trends in the interests of lay and professional
user populations in different topics at different times and/or
under different other conditions (e.g., holidays, unusual weather
conditions, unusual news event conditions etc.) and use the
same for real time adaptive tailoring of their marketing and
advertising activities

(Rapaport ¶ 238). The Examiner further finds, and we agree, that Rapaport
teaches “an automated process where the user’s initial profile and
demographic information is updated based on user behavior, and this is done
automatically without the direct input of the user” (Ans. 6, citing Rapaport
¶ 298).
This portion of Rapaport teaches an automated process in which
“trending update service modules” modify a user’s domains, and “system
administrators and/or voting users can cause new domain nodes to be added
on a data center-by-data center basis or on a system-wide basis as well as
demoting certain less popular old domains to a topic status or eliminating
them entirely” (Rapaport ¶ 298).
Thus, Rapaport’s teachings would be directly relevant to one skilled
in the art who is attempting to match advertisements to the users likely to
respond with a purchase. In sum, Rapaport teaches or suggests correlation
actions taken by a network advertising management system that are
independent of actions (i.e., demographic statistics to tailor marketing is
independent of actions taken by user) or control taken by the user (or client),
and are thus “independent of control by the client that occurred prior to the
first programming content period.”3

3 Should there be further prosecution, the Examiner should consider
whether the disclosure contains adequate support for the limitation at issue.
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Appellant attacks Rapaport individually, and fails to address the
combined teachings of Swaminathan, Henry, Dmitriev, and Rapaport.
“[O]ne cannot show non-obviousness by attacking references individually
where ... the rejections are based on combinations of references.” In re
Keller, 642 F.2d 413, 426 (CCPA 1981). Appellant further does not
challenge the Examiner’s detailed findings in the Answer, as no reply was
filed.
Accordingly, we sustain the Examiner’s obviousness rejection of
independent claim 1, as well as the rejections of dependent claims 2–19 not
separately argued. See Appeal Br. 7.

CONCLUSION
The Examiner did not err in finding that the combination of
Swaminathan, Henry, Dmitriev, and Rapaport teaches or suggests the
limitation of “the correlating based on the network-based management
system independent of control by the client that occurred prior to the first
programming content period,” as recited in independent claim 1.

We note that the remarks submitted with Appellant’s Amendment filed July
30, 2018 do not indicate the support in the disclosure for the added
limitation “that occurred prior to the first programming content period,” and
it is unclear if paragraphs cited in the Summary of Claimed Subject Matter
provide the necessary support. See Appeal Br. 3–4, citing Spec. ¶¶ 28, 60,
62, 64–66, 78, 83, 85.
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Application 14/313,235

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DECISION
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–3, 6, 8–
12, 14–19
103 Swaminathan,
Henry, Dmitriev,
Rapaport
1–3, 6, 8–
12, 14–19

4 103 Swaminathan,
Henry, Dmitriev,
Rapaport, Shkedi
4
5, 7 103 Swaminathan,
Henry, Dmitriev,
Rapaport, Stern
5, 7
13 103 Swaminathan,
Henry, Dmitriev,
Rapaport, Dhruv
13
Overall
Outcome
1–19

TIME PERIOD FOR RESPONSE
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