COMCAST CABLE COMMUNICATIONS, LLC

Patent Trials and Appeals Board

Nov 24, 2020

2019005013 (P.T.A.B. Nov. 24, 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.
14/453,242 08/06/2014 Sohel Khan 26141.0036U2 7921
16000 7590 11/24/2020
Comcast
c/o Ballard Spahr LLP
999 Peachtree Street, Suite 1600
Atlanta, GA 30309-4421
EXAMINER
NGUYEN, TIEN M
ART UNIT PAPER NUMBER
2423
NOTIFICATION DATE DELIVERY MODE
11/24/2020 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):
USpatentmail@ballardspahr.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
________________

Ex parte SOHEL KHAN
________________

Appeal 2019-005013
Application 14/453,242
Technology Center 2400
________________

Before BRADLEY W. BAUMEISTER, JOHN A. EVANS, and
BRIAN D. RANGE, Administrative Patent Judges.

BAUMEISTER, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
final rejection of claims 11, 15–19, and 31–44. Appeal Br. 1.
We have jurisdiction under 35 U.S.C. § 6(b). The Board conducts a
limited de novo review of the appealed rejections for error based upon the
issues identified by Appellant, and in light of the arguments and evidence
produced thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010)
(precedential).
We AFFIRM.

1 Appellant identifies Comcast Cable Communications, LLC as the real
party in interest. Appeal Brief filed January 16, 2018 (“Appeal Br.”), 1.
Appeal 2019-005013
Application 14/453,242

2
CLAIMED SUBJECT MATTER
Appellant describes the present invention as relating to click-to-
connect and other two-way advertisement campaigns. Spec. ¶ 2.
Appellant’s invention solves a problem that can occur when “[a] large
number of near simultaneous connection requests . . . consume bandwidth
and burden the underlying communication network.” Id. Appellant’s
invention entails rendering first and second selectable elements, which are
associated with content, to first and second user groups at different times.
Spec., Abstr.
Independent claim 11 illustrates the claimed invention:
11. A method comprising:
determining a target group of devices;
determining a first subset and a second subset of the target
group of devices, wherein each subset comprises a respective
plurality of devices, wherein a quantity of devices in the first
subset or the second subset is based on a session capacity of a
merchant system;
transmitting an interactive advertisement exclusively to
the first subset of the target group of devices at a first time;
transmitting the interactive advertisement exclusively to
the second subset of the target group of devices at a second time,
wherein the first time is different from the second time,
wherein the first time and the second time are determined
randomly;
receiving, from a first device of the first subset, a first
interaction with the interactive advertisement;
initiating a first communication session between the first
device and the merchant system in response to the first
interaction;
receiving, from a second device of the second subset, a
second interaction with the interactive advertisement; and
Appeal 2019-005013
Application 14/453,242

3
initiating a second communication session between the
second device and the merchant system in response to the second
interaction.

STATEMENT OF THE REJECTIONS
Claims 11, 15–19, and 31–44 stand rejected on the ground of
nonstatutory double patenting as being unpatentable over claims 1, 19, and
22–24 of Khan (US 8,843,956 B2; Sept. 23, 2014). Final Act. 4–7.
Claims 11, 16–18, 31–35, 37–39, and 41–44 stand rejected under
35 U.S.C. § 103(a) as being unpatentable over Ellis (US 2004/0194131 A1;
published Sept. 30, 2004), Hunt (US 2003/0084441 A1; published May 1,
2003), and Shu (US 2011/0258214 A1; published Oct. 20, 2011). Final
Act. 7–14.
Claims 15 and 36 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Ellis, Hunt, Shu, and Nathaniel (US 2003/0130887 A1;
published July 10, 2003). Final Act. 14–15.
Claims 19 and 40 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Ellis, Hunt, Shu, and Ullah (US 2008/0109307 A1;
published May 8, 2008). Final Act. 15–16.

THE DOUBLE PATENTING REJECTION
The Examiner rejects claims 11, 15–19, and 31–44 on the ground of
nonstatutory double patenting as being unpatentable over claims 1, 19, and
22–24 of Khan (US 8,843,956 B2; Sept. 23, 2014). Final Act. 4–7; see also
Examiner’s Answer mailed Apr. 11, 2018, 3 (indicating that no ground of
Appeal 2019-005013
Application 14/453,242

4
rejection has been withdrawn). Appellant does not challenge the double
patenting rejection. See generally Appeal Br.
Accordingly, we summarily sustain this rejection.

THE OBVIOUSNESS REJECTIONS
Determinations and Contentions
The Examiner finds that Ellis generally discloses all of the limitations
of independent claim 1 with two exceptions. Final Act. 8–11. In particular,
the Examiner finds that Ellis does not disclose that the distribution time may
be determined randomly and relies on Hunt to teach this limitation. Id. at
10–11 (citing Hunt ¶¶ 7, 61). The Examiner also finds that “[t]he
combination of Ellis and Hunt is silent regarding a quantity of devices in the
first subset or the second subset is based on a capacity of a merchant
system.” Id. at 11. The Examiner relies on Shu for teaching this limitation.
Id. (citing Shu ¶¶ 20, 21, 47, 58).
Appellant argues, inter alia,
Shu does not relate in any way to transmissions of
advertisements or the accessing of merchant systems. Rather,
Shu is directed to controlling times at which “white space
devices” can access a database of “spectrum use information” in
order to identify “portions of a radio spectrum not currently in
use.” Shu at [0001, 0018–0020].
Appeal Br. 8.
According to Appellant, “the “devices” in Shu are grouped according
to “time windows” to access a “database.” Appeal Br. 6. Appellant argues,
“claim 1 recites grouping devices into a ‘first subset’ or ‘second subset’ to
receive transmissions of advertisements at different times. Shu is silent as to
Appeal 2019-005013
Application 14/453,242

5
grouping devices to receive advertisement transmissions ‘based on a session
capacity of a merchant system’ as claimed.” Id.
Analysis
Appellant’s arguments are persuasive. To be sure, the present
invention, as claimed, and Shu both meter or regulate the number of users or
devices that can access or communicate with a system at a given time. But
Shu regulates communication traffic by limiting when devices can query a
system. Shu ¶ 47. Appellant’s claim 11, in contrast, does not regulate when
a device is permitted to initiate a communication session. Appellant’s
invention regulates communication traffic by limiting the number of devices
to which interactive advertisements are transmitted at any given time.
Appeal Br. 11.
We agree with Appellant, then, “the proposed combination of Shu
with Ellis and Hunt amounts to nothing more than a random combination of
unrelated references that is unlikely to have come about without use of the
claims and specification of the present application as a blueprint during the
exercise of impermissible hindsight reconstruction.” Appeal Br. 8.
We, therefore, reverse the obviousness rejection of independent
claim 11. We, likewise, reverse the obviousness rejection of claims 16–18,
31–35, 37–39, and 41–44, which either depend from claim 11 or otherwise
recite similar claim language pertaining to transmitting interactive
advertisements to groups at respectively different times.
With respect to the remaining obviousness rejections of claims 11, 15,
19, 36, and 40, the Examiner does not rely on the additional teachings of
either Nathaniel or Ullah to cure the deficiency of the obviousness rejection,
Appeal 2019-005013
Application 14/453,242

6
noted above. Accordingly, we also reverse the obviousness rejections of
these claims for the reasons set forth in relation to independent claim 11.

DECISION SUMMARY
In summary:

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). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED
Claims
Rejected
35 U.S.C. § Reference(s)/
Basis
Affirmed Reversed
11, 15–19,
31–44
Non-statutory
double patenting
over Khan
11, 15–19,
31–44

11, 16–18,
31–35, 37–39,
41–44
103 Ellis, Hunt, Shu 11, 16–18,
31–35,
37–39,
41–44
15, 36 103 Ellis, Hunt, Shu,
Nathaniel
15, 36
19, 40 103 Ellis, Hunt, Shu,
Ullah
19, 40
Overall
Outcome
11, 15–19,
31–44