Ex Parte Abernethy et al

Patent Trial and Appeal Board

May 13, 2013

11335452 (P.T.A.B. May. 13, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
_____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
_____________

Ex parte MICHAEL N. ABERNETHY, KULVIR SINGH BHOGAL,
TRAVIS M. GRIGSBY, ROBERT NORRIS-LANCE KRENTLER, and
ALEXANDRE POLOZOFF
_____________

Appeal 2011-001159
Application 11/335,452
Technology Center 2400
______________

Before, DAVID M. KOHUT, JOHNNY A. KUMAR, and
JOHN G. NEW, Administrative Patent Judges.

KOHUT, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2011-001159
Application 11/335,452

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This is a decision on appeal under 35 U.S.C. § 134(a) of the Final
Rejection of claims 6, 8, 11, and 21-26.1 We have jurisdiction under 35
U.S.C. § 6(b).
We affirm the Examiner’s rejection of these claims.

INVENTION
The invention is directed to a method, non-transitory computer-
readable storage medium, and system for displaying commercial content
within a progress bar during a fast forward command during playback, of a
recorded television program. Spec. 4-5. Claim 6 is representative of the
invention and is reproduced below:
6. A system for recording viewer-selected broadcast
television programs and for playing back such recorded
television programs by a viewer comprising:
the data processor controlled apparatus for enabling said
viewer to playback a selected recorded television program;
the data processor controlled apparatus enabling said
viewer to interactively fast forward through commercial
portions of said recorded television program; and
the data processor controlled apparatus for displaying a
progress bar, for indicating the time duration of said fast
forward;
the data processor controlled display apparatus,
responsive to said apparatus enabling fast forwarding for
displaying, within said progress bar, commercial content
ancillary to the content of said commercial portions during the
time duration of said fast forward.

REFERENCES
Plotnick US 2002/0144262 A1 Oct. 3, 2002

1 Claims 7, 9, 10, 12, 13, and 17-20 were previously cancelled and claims 1-
5 and 14-16 have been withdrawn from consideration.
Appeal 2011-001159
Application 11/335,452

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Poslinski US 2006/0013555 A1 Jan. 19, 2006
(filed July 1, 2004)

REJECTION AT ISSUE
Claims 6, 8, 11, and 21-26 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over the combination of Plotnick and Poslinski. Ans. 3-
6.
ISSUES
Did the Examiner err in finding that the combination Plotnick and
Poslinski teaches or suggests “displaying, within said progress bar,
commercial content ancillary to the content of said commercial portions
during the time duration of said fast forward,” as recited in claims 6, 21, and
24?
Did the Examiner err in finding that the combination of Plotnick and
Poslinski teaches or suggests dynamically changing the appearance of the
commercial content as the progress bar progresses, as required by claims 11,
23, and 26?

ANALYSIS
Claim 6, 8, 21, 22, 24, and 25
We select claim 6 as representative of the group comprising claims 6,
8, 21, 22, 24, and 25 as Appellants have not have not argued any of the
claims with particularity. 37 C.F.R. § 41.37(c)(1)(vii). Claim 6 requires
displaying commercial content within a progress bar as the television
program is fast forwarded. The Examiner finds, and Appellants do not
dispute, that Plotnick teaches displaying alternate commercial content when
a program is fast forwarded and that Poslinski teaches progress bars that
Appeal 2011-001159
Application 11/335,452

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display the title of the commercial content being forwarded through. Ans. 4-
5 and 7-8. We agree.
First, Appellants argue that Poslinski’s commercial content is merely
a title and not dynamic moving content. App. Br. 10. This argument is not
commensurate in scope with claim 6, as claim 6 only requires commercial
content and not dynamic content.
Second, Appellants argue that a title or identifier of commercial
content is not ancillary commercial content. App. Br. 10. However, we
agree with the Examiner that Appellants have not specifically defined the
term “ancillary commercial content,” but rather have broadly defined it as
“content which is to the commercial benefit of the sponsor or the host of the
television program.” Ans. 7; see also Spec. 9:25-29. Thus, we agree with
the Examiner (Ans. 7) that a broad interpretation of the claim includes the
commercial’s title. Even so, we also agree with the Examiner (Ans. 7) that
Plotnick’s alternate advertisements that are triggered by trick play events
(including fast forwarding) read on the disputed limitation.
Third, Appellants argue that Poslinski’s progress bars are not
displayed in response to the fast forward command. Reply Br. 3. This
argument raises a new issue not presented before in the Appeal Brief and
need not be considered. See 37 C.F.R. § 41.41(a)(2). Even so, we do not
find Appellants’ argument to be persuasive as there is nothing in the section
cited by Appellants that supports the notion that the progress bar can be
hidden or displayed based upon a choice of the user. Instead, paragraph
[0147] simply teaches that the progress bar can be activated by hitting a
button. See Poslinski, ¶ [0147].
Appeal 2011-001159
Application 11/335,452

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For the reasons stated supra, we sustain the Examiner’s rejection of
claims 6, 8, 21, 22, 24, and 25.
Claims 11, 23, and 26
We select claim 11 as representative of the group comprising claims
11, 23, and 26 as Appellants have not argued any of the claims with
particularity. 37 C.F.R. § 41.37(c)(1)(vii). Claim 11 requires the
commercial content to dynamically change in appearance as the progress bar
progresses. Appellants make the same argument for claim 11 as with claim
6. For the reasons stated supra, we do not find those arguments to be
persuasive. Additionally, Appellants disagree with the Examiner’s finding
that changing titles in a progress bar is the same as dynamically changing
commercial content. App. Br. 11; Reply Br. 6. However, there is nothing in
the claim or Appellants’ Specification that precludes the Examiner from
interpreting the claim so broadly that the reference reads on the claim
limitation. As such, we sustain the Examiner’s rejection of claims 11, 23,
and 26.
CONCLUSION
The Examiner did not err in finding that the combination of Plotnick
and Poslinski teaches or suggests “displaying, within said progress bar,
commercial content ancillary to the content of said commercial portions
during the time duration of said fast forward,” as recited in claims 6, 21, and
24.
The Examiner did not err in finding that the combination of Plotnick
and Poslinski teaches or suggests dynamically changing the appearance of
the commercial content as the progress bar progresses, as required by claims
11, 23, and 26.
Appeal 2011-001159
Application 11/335,452

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SUMMARY
The Examiner’s decision to reject claims 6, 8, 11, and 21-26 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)(1)(iv).
AFFIRMED

msc