Ex Parte Badros et al

Patent Trial and Appeal Board

Mar 23, 2018

13689355 (P.T.A.B. Mar. 23, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/689,355 11129/2012 Gregory Joseph Badros
91230 7590 03/27/2018
Baker Botts L.L.P./Facebook Inc.
2001 ROSS A VENUE
SUITE 700
Dallas, TX 75201
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.
079894.0820 9328
EXAMINER
HANCE, ROBERT J
ART UNIT PAPER NUMBER
2423
NOTIFICATION DATE DELIVERY MODE
03/27/2018 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):
ptomaill@bakerbotts.com
ptomail2@bakerbotts.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GREGORY JOSEPH BADROS, DAVID HARRY GARCIA,
MARK HEYNEN, BRIAN KRAUSZ, CAMERON ALEXANDER
MARLOW, JUSTIN ALEXANDER SHAFFER, MICHAEL JOHN
MCKENZIE TOKSVIG, ERICK TSENG, and YOON KEAN WONG
Appeal 2016-004743
Application 13/689,355 1
Technology Center 2400
Before DEBRA K. STEPHENS, DANIEL J. GALLIGAN, and
SHARON PENICK, Administrative Patent Judges.
GALLIGAN, Administrative Patent Judge.
DECISION ON APPEAL
Appellants seek our review under 35 U.S.C. § 134(a) of the
Examiner's final rejection of claims 1-20. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM. 2
1 The Appeal Brief identifies Face book, Inc. as the real party in interest.
App. Br. 2. This appeal relates to Appeal No. 2016-004751 (Application
Serial No. 13/690,769).
2 Our Decision refers to Appellants' Appeal Brief, filed October 19, 2015
("App. Br."); Appellants' Reply Brief, filed April 4, 2016 ("Reply Br."); the
Examiner's Answer, mailed February 2, 2016 ("Ans."); the Final Office
Appeal 2016-004743
Application 13/689,355
STATEMENT OF THE CASE
Claims on Appeal
Claims 1, 12, and 16 are independent claims. Claim 1 is reproduced
below:
1. A method comprising:
by one or more computer systems of a social-networking
system, receiving information associated with one or more users
in proximity to a display device;
by the one or more computer systems of the social-
networking system, accessing user data of the social-networking
system;
by the one or more computer systems of the social-
networking system, determining, by comparing the user data
with the received information associated with the one or more
users, an identity of at least one of the users in proximity to the
display device;
by the one or more computer systems of the social-
networking system, analyzing a social graph of the social-
networking system, the social graph comprising a plurality of
nodes and edges connecting the nodes, the nodes comprising:
user nodes that are each associated with a particular
user of the social-networking system, and
concept nodes that are each associated with
particular media content;
by the one or more computer systems of the social-
networking system, determining one or more instructions about
a video program, the one or more instructions determined at least
in part based on an analysis of:
one or more of the user nodes of the social graph;
Action, mailed April 8, 2015 ("Final Act."); and Appellants' Specification,
filed November 29, 2012 ("Spec.").
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Application 13/689,355
one or more of the concept nodes of the social
graph; and
one or more of the edges of the social graph; and
by the one or more computer systems of the social-
networking system, sending the determined one or more
instructions about the video program, the one or more
instructions further based on the determined identities.
Kusaka et al.
Martins
Lam et al.
Ullah
Gossweiler et al.
Rooks et al.
References
US 2004/0109063 Al
US 2005/0071865 Al
US 2005/0256756 Al
US 2008/0109843 Al
US 2008/0271078 Al
US 2011/0173668 Al
Examiner's Rejections
June 10, 2004
Mar. 31, 2005
Nov. 17, 2005
May 8, 2008
Oct. 30, 2008
July 14, 2011
Claims 1, 3-5, 7, 9, 12, and 14--18 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Ullah and Lam. Final Act. 2-8.
Claims 2 and 13 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Ullah, Lam, and Rooks. Final Act. 8-9.
Claims 6 and 19 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Ullah, Lam, and Kusaka. Final Act. 9-10.
Claims 8 and 11 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Ullah, Lam, and Martins. Final Act. 10-11.
Claim 10 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Ullah, Lam, and Gossweiler. Final Act. 11-12.
Claim 20 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Ullah, Lam, and Son. Final Act. 12-13.
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ANALYSIS
Rejection of Claims 1, 3-5, 7, 9, 12, and 14-18
under 35 USC§ 103(a)
Appellants contend the combination of Ullah and Lam fails to teach or
suggest "analyzing a social graph of the social-networking system, the social
graph comprising ... concept nodes that are each associated with particular
media content," as recited in claim 1 and similarly recited in independent
claims 12 and 16. App. Br. 9-11; Reply Br. 2-5. In particular, Appellants
argue Lam does not disclose "analyzing a network graph" (App. Br. 11
(citing Lam i-f 3 7)) and further argue Lam does not disclose that the items
that are rated by users are "concept nodes" in a social graph "that are each
associated with particular media content" (Reply Br. 4 (emphasis omitted)).
We are not persuaded. The Examiner finds that the analysis of ratings
by users in the social network is an analysis of a network graph. Final Act. 4
(citing Lam i-fi-f 31, 35--40); Ans. 2 (citing Lam, Abstract, i-fi-15, 35--40, 44).
In particular, the Examiner finds:
Lam discloses a system for generating recommendations based
on a user's social graph, or social network (see Abstract and
[0005]). These recommendations are based on an analysis of the
user's friends and the content rated by those friends (see [0035]-
[0040] and [0044]). This is an analysis of the user's social graph,
and includes analysis of user nodes (the user's friends, or non-
active users) and concept nodes (the media items rated by those
friends).
Ans. 2. We are not persuaded of error in these findings. Lam discloses that
a "[s]ocial network is a network graph of relationships between people."
Lam i-f 31. As the Examiner correctly finds, Lam further discloses analyzing
user ratings of items in a social network. Lam i-fi-135--40; Final Act. 4;
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Ans. 2. Therefore, analyzing user ratings in a social network teaches
analyzing the network graph that is the social network.
Furthermore, the Examiner finds Lam's disclosure of rated media
items teaches "concept nodes that are each associated with particular media
content." Final Act. 4 (citing Lam i-f 37); Ans. 2 (citing Lam i-fi-156, 59). We
are not persuaded of error in this finding. Lam discloses social networks
include shared media items, i.e., "concept nodes," such as "documents" from
the "Wall Street Journal Online [and] New York Times online." Lam i-f 31.
Further, Lam discloses various applications for its item rating system,
including that "a retailer can recommend products, such as music CDs,
DVDs, movies, wines, restaurants, and books, to a user based on that user's
social network" (Lam i-f 5 6) and that "a digital video recorder can record
shows for a user based on that user's social network" (Lam i-f 59). We agree
with the Examiner that items such as music CDs, DVDs, movies, and
recorded shows are concept nodes associated with "particular media
content," i.e., the content of those disclosed media, which have been rated by
the users of the social network. See Ans. 2. 3
We are also not persuaded the Examiner erred in finding these media
items in Lam are "concept nodes" that are part of the "social graph."
Ans. 2-3. Appellants' Specification states "a concept node 304 may
3 We further note that the recitation "particular media content" is directed to
the content of information. It is well settled that an invention cannot
distinguish the prior art based on the informational content of a claim
element unless "the claimed informational content has a functional or
structural relation to the substrate." In re DiStefano, 808 F.3d. 845, 850
(Fed. Cir. 2015); see also Ex parte Curry, 84 USPQ2d 1272, 1274 (BPAI
2005) (informative), aff'd, No. 06-1003 (Fed. Cir. June 12, 2006) (Rule 36).
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correspond to a concept" and lists a number of examples of a "concept,"
including "a resource (such as, for example, an audio file, video file, digital
photo, text file, structured document, or application)" and "real or
intellectual property (such as, for example, a sculpture, painting, movie,
game, song, idea, photograph, or written work)." Spec. i-f 79. Appellants'
Specification further states:
[A]n edge 306 between a user node 302 and a concept node 304
may represent a particular action or activity performed by a user
associated with user node 302 toward a concept associated with
a concept node 304. As an example and not by way oflimitation,
as illustrated in FIG 3 a user may "like " "attended" "played" . ' ' ' '
"listened " "cooked " "worked at " or "watched" a concept each
' ' ' '
of which may correspond to a edge type or subtype.
Spec. i-f 83. Similarly, Lam discloses that users in its social network rate
items, such as music. Lam i-fi-134--35. Rating music (an item) is "a particular
action or activity performed by a user ... toward a concept associated with a
concept node" (i.e., the music or item that is rated), as described in
Appellants' Specification, and, therefore, the rated music or items ("concept
nodes") are part of the social graph as a result of the users of the social
network acting on (rating) them.
Appellants further contend the combination of Ullah and Lam fails to
teach or suggest
determining one or more instructions about a video program ...
at least in part based on an analysis of: one or more of the user
nodes of the social graph; one or more of the concept nodes of
the social graph; and one or more of the edges of the social graph,
as recited in claim 1 and similarly recited in independent claims 12 and 16.
App. Br. 11-13; Reply Br. 5-6. In particular, Appellants argue that Lam's
disclosure of recording shows does not teach "determining one or more
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instructions about a video program" based on the user nodes, concept nodes,
and edges of the social graph. App. Br. 11-13 (emphasis omitted); Reply
Br. 5---6.
We are not persuaded. Rather, we agree with the Examiner's finding
that Lam's disclosure of recording a program teaches that an instruction is
determined because the digital video recorder is instructed to record the
program. Ans. 3 (citing Lam i-f 59); see Final Act. 4. Furthermore, we agree
with the Examiner's finding that, in Lam, the instruction to record a program
is based on an analysis of user nodes, concept nodes, and edges in the social
graph. Ans. 2-3; see Final Act. 4. As discussed above, Lam teaches
analyzing ratings by users (i.e., "user nodes") of particular items (i.e.,
"content nodes"). Lam i-fi-135--40. We agree with the Examiner that "the
broadest reasonable interpretation of ['edges'] includes 'relationships', or
connections, in a social network environment" (Ans. 3) because this
interpretation is consistent with Appellants' Specification, which states that
"[a]n edge 306 connecting a pair of nodes may represent a relationship
between the pair of nodes" (Spec. i-f 82). Furthermore, the Examiner's
finding that "[r]ating content further provides an 'edge' from the rating user
to the item rated" (Ans. 3) is consistent with the description in Appellants'
Specification that "an edge 306 between a user node 302 and a concept node
304 may represent a particular action or activity performed by a user
associated with user node 3 02 toward a concept associated with a concept
node 304" (Spec. i-f 83).
Appellants still further contend the combination of Ullah and Lam
fails to teach or suggest "sending the determined one or more instructions
about the video program, the one or more instructions further based on the
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determined identities," as recited in claim 1 and similarly recited in
independent claims 12 and 16. App. Br. 13-14; Reply Br. 6-7. In
particular, Appellants argue Lam "may disclose recording shows for a user
based on the user's social network" but does not disclose the instructions are
"based on the determined identities [of at least one of the proximity to the
display device]." App. Br. 13-14 (emphasis omitted; alteration in original).
Those arguments are unpersuasive because they attack the teachings of the
references individually when the rejection is based on the combined
teachings of the references. "Non-obviousness cannot be established by
attacking references individually where the rejection is based upon the
teachings of a combination of references." In re Merck & Co., 800 F.2d
1091, 1097 (Fed. Cir. 1986) (citation omitted). In particular, the Examiner
finds Ullah's disclosure of sending targeted advertising to a user watching a
television set teaches determining and sending instructions to display video
(e.g., an advertisement) based on a determined identity of a user in proximity
to the display device. Final Act. 3 (citing Ullah i-f 58); see also Ans. 3. The
Examiner finds that this teaching in combination with Lam's disclosure of
determining and sending video instructions based on analyzing a social
network (Lam i-f 59, discussed above) teaches the recited limitation (Ans. 3-
4).
We further disagree with Appellants' argument that "[i]t is unclear
how the proposed combination could possibly disclose the above-discussed
limitations of Claim 1 when the supposed identities are allegedly determined
by a completely different reference from the reference that purportedly
discloses sending one or more instructions about the video program" (Reply
Br. 7) because both references teach sending instructions about videos. Lam
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teaches instructing a digital video recorder to record a show "for a user
based on that user's social network and her recording profile," which
includes the user's identity. Lam i-f 59; see Lam i-f 42 ("provide
recommendations to users 106 via interface 108"). Further, Ullah teaches
"find[ing] the most appropriate advertisement 218 and distribut[ing] the
advertisement back to the set-top box 204 for display on the television 208"
based on the user who is watching the television (i.e., a "user[] in proximity
to the display device"). Ullah i-f 58. Therefore, we are unpersuaded by
Appellants' argument that "[ t ]here simply is no concept of instructions about
a video program based on determined identities in either Ullah or Lam."
Reply Br. 7.
Appellants also contend the Examiner has not provided sufficient
articulated reasoning to support the conclusion of obviousness. App.
Br. 14--16; Reply Br. 7-8. In particular, Appellants argue the Examiner's
reasoning that it would have been obvious to combine the teachings of Ullah
and Lam "to increase user convenience by automatically finding and
recording content the user will likely enjoy" (Final Act. 5) is insufficient
because "[a]utomatically finding and recording 'content the user will likely
enjoy' is not the claimed invention" and, thus, "could not serve as a
motivation to combine the prior art to achieve the claimed invention" (App.
Br. 15 (emphasis removed)). Appellants also argue the Examiner's
reasoning "amounts to nothing more than the Examiner resorting to
hindsight based on the Appellant's disclosure, which is entirely
impermissible." App. Br. 15; Reply Br. 8.
We are not persuaded. Obviousness does not require that the
Examiner's motivation for the combination is itself the claimed invention;
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rather, the Examiner must set forth "articulated reasoning" for combining
Ullah and Lam having "some rational underpinning to support the legal
conclusion of obviousness." KSR Int'! v. Teleflex, Inc., 550 U.S. 398, 417-
18 (2007). We find the Examiner's rationale to combine the teachings of
Ullah and Lam to be articulated reasoning with rational underpinning
supported by evidence in the record. Lam discloses that its "improved
collaborative filtering system ... incorporates social network information
about users, in addition to users' ratings on items, to improve
recommendation of items." Lam i-f 26 (emphasis added). As discussed
above, such recommended "items" in Lam include shows for recording. See
Lam i-f 59. As also discussed above, Lam's disclosure of analyzing user
ratings in a social network to determine which shows to record teaches
"determining one or more instructions about a video program" based on an
analysis of user nodes, concept nodes, and edges of the social graph, as
recited in claim 1. See Lam i-fi-135--40, 59. Therefore, the Examiner's
finding that a person of ordinary skill in the art would have had reason to
combine the teachings of Ullah and Lam "to increase user convenience by
automatically finding and recording content the user will likely enjoy" (Final
Act. 5) is supported by Lam's own disclosure that its system "improve[s]
recommendation of items." As such, we are not persuaded that the
Examiner's rationale to combine is insufficient or represents improper
hindsight reasoning. Rather, the prior art of record supports the Examiner
findings and conclusion of obviousness.
Therefore, we sustain the rejection of claim 1 and claims 3-5, 7, 9, 12,
and 14--18, for which Appellants present no additional arguments for
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patentability, under 35 U.S.C. § 103(a) over the combination of Ullah and
Lam.
Remaining Rejections
Appellants do not present separate arguments with respect to the
remaining rejections. As such, we sustain the rejections of claims 2, 6, 8,
10, 11, 13, 19, and 20 under 35 U.S.C. § 103(a).
DECISION
We affirm the Examiner's decision to reject claims 1-20 under 35
U.S.C. § 103(a).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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