Ex Parte Arora et al

Patent Trial and Appeal Board

Jul 22, 2016

13668636 (P.T.A.B. Jul. 22, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/668,636 11105/2012
29153 7590 07/26/2016
ADVANCED MICRO DEVICES, INC.
C/O Faegre Baker Daniels LLP
311 S. WACKER DRIVE
Suite 4300
CHICAGO, IL 60606
FIRST NAMED INVENTOR
Jitesh Arora
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.
100100.120289 6780
EXAMINER
TELAN, MICHAEL R
ART UNIT PAPER NUMBER
2427
NOTIFICATION DATE DELIVERY MODE
07/26/2016 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):
amddocketinternal@faegrebd.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JITESH ARORA, GAGANDEEP SINGH
CHABBEW AL, RANDALL A. BROWN, and
JAMIN ISLAM
Appeal2015-002209
Application 13/668,636
Technology Center 2400
Before ST. JOHN COURTENAY III, THU A. DANG, and
LARRY J. HUME, Administrative Patent Judges.
COURTENAY III, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134(a) from the Examiner's Final
Rejection of claims 1-12 and 17-21. Claims 13-16 are cancelled. We have
jurisdiction under 35 U.S.C. § 6(b).
We Affirm-In-Part.
Appeal2015-002209
Application 13/668,636
The Invention
The disclosed and claimed invention relates to a "METHOD AND
DEVICE FOR PROVIDING A VIDEO STREAM FOR AN OBJECT OF INTEREST."
Title.
Representative Claim
1. A method of ranking a video feed including:
obtaining one or more video feeds by a computing device,
the video feeds depicting a first event; and
ranking the video feeds by the computing device, the
ranking based, at least in part, upon input from a viewer
indicating an object of interest that is part of the event, the
ranking providing a top ranked video feed, wherein ranking a
video feed as the top ranked video feed reflects the top ranked
video feed's ability to depict the object of interest identified by
the viewer.
(Emphasis added regarding the contested limitations).
Rejections on Appeal 1
A. Claims 1, 2, 4, 5, 7, 9, 10, 17-19, and 21 stand rejected under 35
U.S.C. § 103(a) as being obvious over the combined teachings and
1 Regarding independent claim 17, because "[a] computer readable medium
containing non-transitory instructions thereon" (emphasis added) does not
have the same limiting scope as "[a] non-transitory computer readable
medium," the claimed "medium" (emphases added) does not appear to be
limited to statutory subject matter under 35 U.S.C. § 101. See Ex parte
Mewherter, 107 USPQ2d 1857, 1862 (PTAB 2013) (precedential) (holding
recited machine-readable storage medium ineligible under § 101 since it
encompasses transitory media). Here, the originally-filed Specification does
not expressly and unambiguously disclaim transitory mediums via a
definition. See, e.g., Spec. i-f 41) ("executable instructions stored on a
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suggestions ofNunninen (US 2009/0063419 Al, publ. Mar. 5, 2009) and
Diaz Perez (US 2007 /0250864 Al, publ. Oct. 25, 2007).
B. Claim 3 stands rejected under 35 U.S.C. § 103(a) as being obvious
over the combined teachings and suggestions ofNurminen, Diaz Perez, and
Dureau (US 2011/0289530 Al, publ. Nov. 24, 2011).
C. Claim 6 stands rejected under 35 U.S.C. § 103(a) as being obvious
over the combined teachings and suggestions ofNurminen, Diaz Perez, and
Allard (US 2009/0216745 Al, publ. Aug. 27, 2009).
D. Claim 8 stands rejected under 35 U.S.C. § 103(a) as being obvious
over the combined teachings and suggestions ofNurminen and Roewe (US
2010/0125880 Al, publ. May 20, 2010).
E. Claim 11 stands rejected under 35 U.S.C. § 103(a) as being
obvious over the combined teachings and suggestions ofNurminen, Diaz
Perez, and Jing (US 20071017 4872 Al, publ. July 26, 2007).
F. Claim 12 stands rejected under 35 U.S.C. § 103(a) as being
obvious over the combined teachings and suggestions ofNurminen, Diaz
Perez, Dey (US 2012/0185904 Al, publ. July 19, 2012), and Yasrebi (US
2008/0086750 Al, publ. Apr. 10, 2008).
computer readable medium such as but not limited to CDROM, RAM, other
forms of ROM, hard drives, distributed memory, etc." (emphasis added)).
Therefore, the "computer-readable medium" of claim 17 (and associated
dependent claims) appears ineligible under § 101. Although the Board is
authorized to reject claims under 37 C.F.R. § 41.50(b), no inference should
be drawn when the Board elects not to do so. See Manual of Patent
Examining Procedure (MPEP) § 1213.02.
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Application 13/668,636
G. Claim 20 stands rejected under 35 U.S.C. § 103(a) as being
obvious over the combined teachings and suggestions ofNurminen, Diaz
Perez, and Price (US 7,296,284 Bl, iss. Nov. 13, 2007).
Grouping of Claims
Based on Appellants' arguments, we decide the appeal of claims 1, 2,
4, 7, 9--10, 17-19, and 21 (rejected under rejection A), on the basis of
representative claim 1. See 37 C.F.R. § 41.37(c)(l)(iv). We address
separately argued claims 5 (rejection A), 6 (rejection C), and 12 (rejection
F), infra. We address Rejections B, D, E, and G, separately, infra.
ANALYSIS
We have considered all of Appellants' arguments and any evidence
presented. Except for rejection A of dependent claim 5 (reversed below) we
disagree with Appellants' arguments with respect to the remaining contested
claims on appeal; and we adopt as our own: (1) the findings and reasons set
forth by the Examiner in the Action from which this appeal is taken, and
(2) the reasons and rebuttals set forth in the Examiner's Answer in response
to Appellants' arguments. We incorporate such findings, reasons, and
rebuttals herein by reference unless otherwise noted.
Rejection A of Representative Claim 1
Issue: Under§ 103(a) Did the Examiner err in finding the cited prior
art combination teaches or suggests the contested limitation of "the ranking
based, at least in part, upon input from a viewer indicating an object of
interest that is part of the event," as recited in claim 1 (emphasis added)?
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Appellants contend, inter alia:
[i]n the ranking of Diaz Perez, there is no considering of a user-
indicated object that is part of the event. Diaz Perez orders
buttons based on past selections. Current wishes or input are not
factored in when ordering the buttons. . . . Diaz Perez ranks
categories, not the actual content based on its ability to depict an
object of interest.
(App. Br. 13).
The Examiner finds Diaz Perez teaches ranking video content, based,
at least in part, upon input from a viewer indicating an object of interest.
(Final Act. 4, citing Diaz Perez, i-fi-1 7 6, 89, Figs. 5-7). The Examiner
interprets the contested claim term "object of interest" as content of interest
to a user. (Ans. 5).
This appeal turns upon claim construction. We give the contested
claim limitations the broadest reasonable interpretation consistent with the
Specification. See In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). For
patent application claims before the USPTO, "[g]iving claims their broadest
reasonable construction 'serves the public interest by reducing the possibility
that claims, finally allowed, will be given broader scope than is justified."'
In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004)
(quoting In re Yamamoto, 740 F.2d 1569, 1571 (Fed. Cir. 1984)).
Applying this guidance here, we tum to the Specification for context.
We find the various descriptions of exemplary embodiments of an "object of
interest" in the Specification are non-limiting. (See Spec. e.g., "object of
interest" i-fi-f 17, 19, 28, 31, 35, 36). 2 Because we find no express definition
2 See also e.g., Spec. i135: Referring to an exemplary embodiment
describing a car race event in which multiple cameras provide different
views (i.e., camera video feeds) which track a race car proceeding around a
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in the Specification, 3 we conclude a broad but reasonable interpretation of
the contested claim term "object of interest" covers any content of interest to
a user or viewer, within the scope of claim 1. 4 Therefore, we conclude the
Examiner's reading is not overly broad or unreasonable. 5 Moreover, we find
the Examiner's construction is not inconsistent with the unbounded breadth
of the corresponding supporting descriptions of the exemplary embodiments
found in the Specification. 6
race track: "Accordingly, a viewer who has selected that car as an object of
interest in effect selects a 'channel' dedicated to that car and the algorithm
switches the presented feed based upon the changing conditions of which
feed currently provides the best view thereof' (emphasis added).
3 See Spec. i-f 39: "The above detailed description and the examples
described therein have been presented for the purposes of illustration and
description only and not for limitation" (emphasis added).
LL r1 n ..,- ,..... .r LLn, •11 ,.. ."1 1 1• , • • 1 1
~ 0ee e.g., ~pee. 11 jO: --~uu runner, emoomments are env1s10nea wnere
viewers can enter information regarding their objects of interest, and such
information can be available via the application."
5 Because "applicants may amend claims to narrow their scope, a broad
construction during prosecution creates no unfairness to the applicant or
patentee." In re ICON Health and Fitness, Inc., 496 F.3d 1374, 1379 (Fed.
Cir. 2007) (citation omitted).
6 In the event of further prosecution, we leave it to the Examiner to consider
a rejection under 35 U.S.C. § 112, second paragraph, regarding whether the
claim 1 limitation "top ranked video feed's ability to depict the object of
interest identified by the viewer" is indefinite, because the claim term "video
feed's ability" appears to be subjective. (Emphases added). The scope of
claim language cannot depend solely on the unrestrained, subjective opinion
of a particular individual purpmiedly practicing the invention, without
sufficient guidance in the specification to provide objective direction to one
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Contested Rationale to Combine the References
Appellants additionally contend the references have been improperly
combined by the Examiner. (App. Br. 15). Appellants urge: "[T]he system
of Diaz Perez is ill suited to be combined with the system ofNurminen
where the available stream sources are highly variable and unlikely to be
repeated." (Id).
The Supreme Court guides: "Under the correct analysis, any need or
problem known in the field of endeavor at the time of invention and
addressed by the patent can provide a reason for combining the elements in
the manner claimed." KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 420
(2007).
This reasoning is applicable here. The Examiner finds the
modification ofNurminen with the teachings of Diaz Perez "would enable
the reordering of content in accordance to relevance to the viewer's interests,
thereby improving the convenience for users." (Final Act. 5). We find the
Examiner's proffered motivation provides a sufficient rational underpinning,
because we agree with the Examiner that content reordering according to the
viewer's interests would have provided a convenience to the user. (Ans. 5).
Thus, we find the Examiner set forth sufficient "articulated reasoning with
some rational underpinning to support the legal conclusion of obviousness."
In re Kahn, 441F.3d977, 988 (Fed. Cir. 2006). See also 35 U.S.C. § 132.
For these reasons, on this record, we are not persuaded the Examiner
erred in rejecting claim 1. Therefore, we sustain the Examiner's rejection A
of skill in the art. See DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d
1245, 1260 (Fed. Cir. 2014) ); see also Manual of Patent Examining
Procedure (MPEP) § 2173.05(b)(IV) (9th Ed., Rev. 07.2015, Nov. 2015).
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of representative claim 1, and the grouped claims which fall therewith. See
Grouping of Claims, supra.
Rejection A of Dependent Claim 5
Appellants contend: "Claim 5 recites 'further including comparing the
one or more video feeds to each other.' The cited disclosure of Diaz Perez
discusses feeds being compared to a search request. Clearly, the comparison
of a feed to search criteria is not a comparison of one feed to another."
(App. Br. 17).
The Examiner responds: "the process of reordering based on the
frequency of selection or other content criteria (see Diaz Perez, [0089])
inherently requires a comparison of content attributes. More specifically, a
ranking or reordering of elements of a list inherently requires a comparison
of those elements." (Ans. 12, emphasis added).
We are persuaded by Appellants' arguments regarding claim 5,
because we do not find a teaching of comparing video feeds in the portions
of Diaz Perez cited by the Examiner (i1i176, 80, 81, 89, Figs. 7-9). (Final
Act. 9).
Although the Examiner finds Diaz Perez inherently requires a
comparison of content attributes (Ans. 12), we note claim 5 requires a
comparison of "one or more video feeds to each other" (emphasis added), as
argued by Appellants. (App. Br. 17). Therefore, we find the evidence cited
by the Examiner (Ans. 12) is insufficient to show "the natural result flowing
from the operation as taught would result in the performance of the
questioned function." PAR Pharm., Inc. v TWI Pharms., Inc., 773 F.3d
1186, 1194--95 (Fed. Cir. 2014) ("inherency may supply a missing claim
limitation in an obviousness analysis") (internal citation omitted).
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In considering the evidence, we find it is possible to reorder electronic
program guide (EPG) titles, categories, and subcategories (as described in
Diaz Perez i-f 89) in a manner independent of any comparison of the
underlying TV programs to each other in Diaz Perez (i.e., "video feeds" -
claim 5). For example, as cited by the Examiner (Ans. 12), Diaz Perez (i-f
89) describes "determin[ing] a likely reordering of the category names and
titles based on more sophisticated criteria, such as time-of-day, weekday or
weekend, or even preferences based on past selections of TV program titles"
(emphasis added). Such reordering (i-f 89) is not performed based on
comparing the TV programs in Diaz Perez to each other, i.e., "comparing
the one or more video feeds to each other," as required by the language of
claim 5 (emphasis added).
Therefore, for essentially the same reasons argued by Appellants
(App. Br. 17), we reverse the Examiner's rejection A of dependent claim 5.
Rejection C of Dependent Claim 6
Claim 6 recites "[t]he method of claim 1, wherein the input is one
where the viewer has selected an item from within one of the video feeds."
Appellants contend:
there is no disclosure or suggestion of choosing another
data stream based on the identification provided by Allard. Stated
differently, selection of an item from the still image of Allard
does not then cause the selection or providing of another video
feed. Selection of an item does not provide for such item to be
considered by an algorithm that attempts to provide other content
using that selection as an indicator of the interest of the user and
driver of the providing of other content.
(App. Br. 17).
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We agree with the Examiner's finding Allard provides a teaching
enabling a viewer to select an item from within a video feed (Ans. 12, citing
Allard i-f 43), because we find Allard's user selection of an object displayed
in content 114(n) by circling a still image teaches, or at least suggests the
claim 6 contested limitation, "the input is one where the viewer has selected
an item from within one of the video feeds." We additionally agree with the
Examiner that Appellants' arguments are not commensurate with the scope
of the claim. (Ans. 13, citing App. Br. 17). For these reasons, we are not
persuaded the Examiner erred regarding rejection C of dependent claim 6.
Accordingly, we sustain rejection C of claim 6 (which depends directly from
independent claim 1, and not from claim 5).
Re} ection F of Dependent Claim 12
Claim 12 recites:
The system of claim 9, wherein the viewer input receiver
is further operable to receive information about the capabilities
of a panel on which the viewer views feeds, and the panel
capability information is used by the feed ranker to rank feeds.
Appellants contend:
Dey is cited as providing a teaching of detecting capabilities of a
display. There is no teaching or suggestion in the cited references
to such use of panel capability information as an input to a feed
ranker or otherwise. The Office Action has stated that the
teaching of Dey makes it obvious to modify Nurminen and Diaz
Perez such that the capabilities of the viewer panel are considered
to modify sent content according to those capabilities. This stated
motivation is derived from whole cloth. There is no cited
discussion of such a use.
(App. Br. 18.)
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We agree with the Examiner's finding that Dey provides a teaching
for detecting capabilities of a display, because we find device 116 in Dey
detects capabilities of a display. (Ans. 15, citing Dey i-f 19, e.g., "[i]n one
embodiment, the device 116 can detect or otherwise determine the
communication and/or display capabilities of the TV 108 and can adjust the
format of the media content accordingly.")
We find the Examiner's proffered motivation (improving performance
and convenience for users -Ans. 15) provides a sufficient rational
underpinning for the combination, because: (1) Dey's detection of the
display capabilities of the TV, and (2) Yasrebi's teaching (i-f 52) of selecting
content based on the capabilities of user devices, both provide benefits and
convenience to users. Thus, we find the Examiner has set forth sufficient
"articulated reasoning with some rational underpinning to support the legal
conclusion of obviousness." Kahn, 441 F.3d at 988.
Regarding the contested use of panel capability information to rank
feeds (claim 12), we particularly note Yasrebi (i-f 52) expressly describes:
"the content pusher 206 selects the content to be pushed from the list of
media content ranked by aggregated scores generated by the content
matcher 206 based on the capabilities of the user's device(s)." (Emphasis
added).
The Supreme Court guides: "if a technique has been used to improve
one device, and a person of ordinary skill in the art would recognize that it
would improve similar devices in the same way, using the technique is
obvious unless its actual application is beyond his or her skill." KSR, 550
U.S. at 417 (citations omitted).
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This reasoning is applicable here. On this record, Appellants have not
persuasively shown that combining the respective familiar elements of the
cited references in the manner proffered by the Examiner would have been
"uniquely challenging or difficult for one of ordinary skill in the art" at the
time of Appellants' invention, or would have realized anything more than
predictable results. Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d
1157, 1162 (Fed. Cir. 2007) (citing KSR, 550 U.S. at 418).
For these reasons, we sustain the Examiner's rejection F of dependent
claim 12.
Re} ections B, D, E, and G
Appellants do not provide separate, substantive arguments regarding
the claims rejected under rejections B, D, E, and G. Arguments not made
are considered waived. See 37 C.F.R. § 41.37(c)(l)(iv). Therefore, we
sustain the Examiner's rejections B, D, E, and Gunder 35 U.S.C. § 103(a).
Conclusions
For the aforementioned reasons, and on this record, we find a
preponderance of the evidence supports the Examiner's underlying factual
findings and ultimate legal conclusion of obviousness for all claims on
appeal, except rejection A of dependent claim 5 (reversed supra).
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DECISION
We reverse the Examiner's decision rejecting claim 5 under§ 103(a).
We affirm the Examiner's decision rejecting claims 1--4, 6-12, and
17-21 under§ 103(a).
No time for taking any action connected with this appeal may be
extended under 37 C.F.R. § 1.136(a)(l). See 37 C.F.R. § 41.50(f).
AFFIRMED-IN-PART
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