COMCAST CABLE COMMUNICATIONS MANAGEMENT, LLC

Patent Trials and Appeals Board

Jan 4, 2022

2020003416 (P.T.A.B. Jan. 4, 2022)

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. 14/661,317 03/18/2015 Harry J. Reichert JR. 26141.0202U1 3631 16000 7590 01/04/2022 Comcast c/o Ballard Spahr LLP 999 Peachtree Street, Suite 1600 Atlanta, GA 30309-4421 EXAMINER TODD, GREGORY G ART UNIT PAPER NUMBER 2457 NOTIFICATION DATE DELIVERY MODE 01/04/2022 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 HARRY J. REICHERT Appeal 2020-003416 Application 14/661,317 Technology Center 2400 Before CAROLYN D. THOMAS, CARL W. WHITEHEAD JR., and PHILLIP A. BENNETT, Administrative Patent Judges. BENNETT, Administrative Patent Judge. DECISION ON REQUEST FOR REHEARING STATEMENT OF THE CASE This is a decision on Appellant’s1 Request for Rehearing. Appellant’s Request for Rehearing is filed under 37 C.F.R. § 41.522 requesting that we reconsider certain portions of our Decision of September 2, 2021, wherein 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as Comcast Cable Communications Management, LLC. Appeal Br. 1. 2 “The request for rehearing must state with particularity the points believed to have been misapprehended or overlooked by the Board.” 37 C.F.R. § 41.52(a)(1). Appeal 2020-003416 Application 14/661,317 2 we affirmed the Examiner’s rejection of claims 1-4, 6-10, 12-18, and 20-23 under 35 U.S.C. § 103. EXEMPLARY CLAIM The claims are directed to methods and systems of content optimization. Exemplary claim 1 reads as follows: 1. A method comprising: generating a data sample of a content item as presented via a first device, wherein the data sample is generated by an internal component of the first device, and wherein the data sample comprises current configuration settings of the first device; transmitting, to a second device, the data sample; receiving updated configuration settings, wherein the updated configuration settings are determined by the second device based on a comparison of predetermined reference data with the data sample; and updating the current configuration settings of the first device with the updated configuration settings. Appeal Br. 11 (Claims Appendix). APPELLANT’S CONTENTION Appellant requests rehearing because the Decision did not consider Appellant’s timely filed Reply Brief. (Request 2.) Appellant provides a copy and evidence of timely filing of a Reply Brief dated April 3, 2020 as attached exhibits to the Request. Appellant does not advance specific arguments, but instead “respectfully requests that the Board grant a rehearing of the entire written record of the present application, including the Reply Brief.” Request 2. We agree with Appellant that the timely filed Reply Brief was not considered in rendering our Decision. We, therefore, will consider Appeal 2020-003416 Application 14/661,317 3 Appellant’s timely arguments, as set forth in the Reply Brief, in the analysis below. ANALYSIS The Examiner rejects claim 1 as obvious over Kang and Tomay. Final Act. 1. The Examiner relies primarily on Kang, finding that it teaches all of the limitations except that “Kang fails to explicitly disclose wherein the data sample is generated by an internal component of the first device, and wherein the data sample comprises current configuration settings of the first device.” Final Act. 3. The Examiner introduces Tomay to address these deficiencies, finding that “Tomay discloses, in an analogous art, a user device sending information reports to a server, such reports may include a screenshot from the user device and listing of the configuration of the device.” Final Act. 3 (citing Tomay col. 16, ll. 35-58, col. 18, ll. 21-27; Fig. 10). Appellant contends “Tomay does not cure the deficiencies of Kang” because Tomay “at most teaches sending a request to a user device to take a screenshot, and sending configuration settings to the user device.” Appeal Br. 5. Appellant argues that because Tomay “at most teaches one device taking a screenshot, and another device sending configuration settings,” “Tomay does not teach that the screenshot comprises configuration settings.” Appeal Br. 6. We are not persuaded of Examiner error. In the Answer, the Examiner explains that the scope of the argued limitation is broad, “with only a data sample comprising current configuration settings of the first device.” Ans. 4. The Examiner further explains that Appellant’s Specification indicates “the data sample may be an image (see Kang) or Appeal 2020-003416 Application 14/661,317 4 screenshot (see Tomay)” and that “under the broadest reasonable interpretation, the current configuration settings can be determined from an image itself as well as metadata of an image, or simply part of a data set itself.” Ans. 5. We agree with the Examiner’s interpretation of the claim. In the Reply Brief, Appellant argues that the Examiner’s Answer “improperly reads limitations from the specification into the claims.” Reply Br. 2 (emphasis omitted). More specifically, Appellant argues the Specification’s description of data samples as images or screenshots “are merely non-limiting examples.” Reply Br. 3. Appellant argues the Examiner’s reliance on Tomay’s screenshot and Kang’s image as teaching the claimed data sample comprising current configuration settings “improperly reads limitations from the specification into the claims in order to graft the rejection to the improperly construed claims.” Reply Br. 3 (citing MPEP § 2111.01(II)). This argument is unpersuasive for two reasons. First, the authority (MPEP § 2111.01(II)) relied upon by Appellant is intended to warn the Examiner not to improperly narrow a claim limitation based on embodiments disclosed in the Specification. Here, the Examiner does no such thing. Rather, the Examiner uses the examples in the Specification as evidence of what form of information the data sample may be. See Spec. ¶ 26 (“[T]he data sample can comprise one or more of a screen capture, and image, a video clip, an audio clip, and any metadata associated with the screen capture, the image, the video clip and/or the audio clip.”). Thus, we discern no error in the Examiner’s determination that the claimed data sample may take the form of a screenshot or image, as long as the screenshot or image at the same time “comprises configuration settings.” Appeal 2020-003416 Application 14/661,317 5 Second, even if a “data sample [that] comprises configuration settings” were interpreted to exclude images and screen captures, the Examiner relies upon Kang’s disclosure of transmitting the brightness level of the display mobile device for the claimed “data sample comprising configuration settings.” Kang ¶ 73 (“Accordingly, the display mobile device control supporting unit 361 receives the information regarding a brightness level from the display mobile device 100.”) Under this interpretation, we agree with the Examiner that the references teach or suggest the argued limitation. As explained by the Examiner: Kang teaches a device generating a data sample of a content item as presented via a first device as Kang teaches a first device 100 having an original reference image output being displayed to compare the output of the device to the known reference image (par. 65-67). Kang teaches capturing an image of the display of the device 100 as presented via the first device (at least Fig. 2-3, paragraph 67; camera photographs images displayed by mobile device 100), and wherein the data sample comprises current configuration settings of the first device (at least paragraph 73, 68; brightness level of images / receives the information regarding brightness level from device 100). Kang explicitly teaches that the second device receive at least “information regarding a brightness level from the mobile device 100”. Kang then teaches that based on the image, adjusted brightness levels are transmitted from the second device to the mobile first device to adjusts its brightness (par. 40-41). Kang thus simply fails to explicitly teach more than one setting (ie. Kang only teaches brightness being modified) being received from the mobile device and that the data sample is generated internally, ie. from the processor / screen capturing software of the mobile device. Ans. 6-7 (emphasis omitted). Thus, as found by the Examiner, Kang’s only deficiencies are (1) that it teaches only one configuration setting (brightness) being received from a Appeal 2020-003416 Application 14/661,317 6 mobile device while the claim requires “configuration settings,” and (2) although it implies it, Kang does not explicitly state that the brightness setting that is transmitted is generated internally. Id. We agree with the Examiner that Tomay remedies Kang’s deficiencies because Tomay demonstrates that it was known in the art for data samples to be generated internally by a user device (see col. 16, ll. 35- 50 which describes user device configuration messages including a generated screenshot), and that the data samples may include multiple configuration settings (see col. 18, ll. 21-47). Given the limited deficiencies of Kang, nothing more is required of Tomay. Appellant’s argument that Tomay’s “cannot teach that the screenshot has the configuration settings of the device” is not persuasive because, as the Examiner explains: The screenshot does not have the configuration within it, rather Tomay teaches the inverse as Tomay clearly teaches that the configuration messages have the screenshot and/or also list of errors and error report within them. Appellant focuses on Tomay’s screenshot when Tomay teaches a variety of data samples that may be generated and analyzed. Ans. 8 (emphasis omitted). Appellant further contends in the Reply Brief that “Tomay does not teach or suggest a data sample as claimed.” Reply Br. 3. More specifically, Appellant argues Tomay’s user device configuration messages are not the claimed data sample “because the ‘user device configuration messages’ . . . are not ‘data sample[s] of a content item as presented via a first device’ as claimed.” Reply Br. 4. This argument is not persuasive because the Examiner does not rely upon Tomay’s user device configuration messages as teaching “of a content Appeal 2020-003416 Application 14/661,317 7 item was presented via a first device.” The Examiner cites Kang’s image and brightness level as teaching the content item presented via a first device. See Kang ¶ 67. As we explain above, the Examiner relies on Tomay only to show that it was known to transmit multiple configuration settings (as opposed to Kang’s single setting), and that these settings may be generated internally. We agree with the Examiner that Tomay provides these teachings. As such, we are not persuaded the Examiner erred in finding the cited references teach or suggest the argued limitation. Accordingly, we sustain the rejection of claim 1 under 35 U.S.C. § 103. Remaining Claims Appellant presents no separate arguments for patentability of any other claims. Appeal Br. 9. Accordingly, we sustain the Examiner’s rejections of these claims for the reasons stated with respect to the independent claims from which they depend. See 37 C.F.R. § 41.37(c)(1)(iv). DECISION SUMMARY Having considered Appellant’s arguments as set forth in the Reply Brief, we remain unpersuaded the Examiner erred in rejecting Appellant’s claims. We, therefore, deny Appellant’s request for rehearing. Appeal 2020-003416 Application 14/661,317 8 Outcome of Decision on Rehearing Claims Rejected 35 U.S.C. § Reference(s)/ Basis Denied Granted 1-4, 6-10, 12- 18, 20-23 103 Kang, Tomay 1-4, 6-10, 12-18, 20- 23 Final Outcome of Appeal after Rehearing Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1-4, 6-10, 12-18, 20-23 103 Kang, Tomay 1-4, 6-10, 12-18, 20-23 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). See 37 C.F.R. § 1.136(a)(1)(iv). REHEARING DENIED