Ex Parte Berezowski et al

Board of Patent Appeals and Interferences

Aug 7, 2012

09823705 (B.P.A.I. Aug. 7, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte DAVID M. BEREZOWSKI and MICHAEL D. ELLIS
____________________

Appeal 2010-007838
Application 09/823,705
Technology Center 2400
____________________

Before LANCE LEONARD BARRY, THU A. DANG,
and JAMES R. HUGHES, Administrative Patent Judges.

DANG, Administrative Patent Judge.

DECISION ON APPEAL

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I. STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from a Final Rejection of
claims 1-6, 8-11, 13-46, 50-56, 58, 60-85, 87-90, 92-125, 129-135, 137,
139-164, 166-169, 171-204, 208-214, 216, and 218-237 (App. Br. 3).
Claims 7, 12, 47-49, 57, 59, 86, 91, 126-128, 136, 138, 165, 170, 205-207,
215, and 217 have been canceled (id.). We have jurisdiction under 35
U.S.C. § 6(b).
We affirm-in-part.

A. INVENTION
Appellants’ invention is directed to a system and method for
providing audience information to users of an interactive television
application; wherein, the audience information may include ratings,
audience size, market share, or any other suitable information for a particular
program (Abstract; Spec. ¶ [0008]).

B. ILLUSTRATIVE CLAIM
Claim 1 is exemplary:
1. A method for measuring audience size information
based on playbacks of a recorded program comprising:

receiving indications of playbacks of the recorded
program from a plurality of audience members;

updating audience size information for the recorded
program in response to receiving the indications from the
plurality of audience members; and

providing the updated audience size information to at
least one user within an interactive television application.
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C. REJECTION
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Maissel US 6,637,029 B1 Oct. 21, 2003
(effectively filed Jun. 10, 1999)
Hendricks US 6,539,548 B1 Mar. 25, 2003
(filed Aug. 15, 1997)

Claims 1-6, 9-11, 13-46, 50-56, 60-85, 88-90, 92-125, 129-135, 139-
164, 167-169, 171-204, 208-214, and 218-237 stand rejected under 35
U.S.C. § 102(e) as being anticipated by Maissel.
Claims 8, 58, 87, 137, 166, and 216 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Maissel in view of Hendricks.

II. ISSUES
The dispositive issues before us are whether the Examiner has erred in
finding that:
1. finding that Maissel discloses “receiving indications of playbacks
of the recorded program from a plurality of audience members” and
“updating audience size information for the recorded program in response to
receiving the indications from the plurality of audience members” (claim 1,
emphasis added);
2. finding that Maissel discloses “calculating audience size
information for a program corresponding to at least one of the one or more
program listings, wherein the calculating is based on a graded approach of
assigning a predetermined quantity of points to each of a plurality of actions
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of performed by a plurality of audience members” (claim 29, emphasis
added);
3. finding that Maissel discloses “receiving indications from a
plurality of audience members to perform actions related to the upcoming
program” (claim 51, emphasis added); and
4. concluding that the combination of Maissel and Hendricks teaches
or would have suggested “wherein updating audience size information
comprises updating a market share of the recorded program” (claim 8,
emphasis added).

III. FINDINGS OF FACT
The following Findings of Fact (FF) are shown by a preponderance of
the evidence.
Maissel
1. Maissel discloses a television system having an intelligent
agent that customizes an electronic program guide based upon a viewer’s
viewing behavior (col. 2, l. 65-col. 3, l. 5). In particular, the intelligent agent
monitors viewing behavior of one viewer or a plurality of viewers, creates a
preference profile based on the monitored viewing behavior, and generates a
customized electronic program guide based on the preference profile (id.).
2. The system sends to the viewer an unsolicited alert including a
portion of the customized program schedule information and audience
viewing information having an indication of a proportion of an audience
currently viewing a program related to the viewer’s preference (col. 5, ll. 55-
61).
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3. The customizing includes displaying an indication of a
proportion of an audience viewing a program currently being viewed by a
viewer and may also display the proportion of an audience viewing a
program not currently being viewed by a viewer (col. 6, ll. 1-19).
4. A method for providing audience information to a viewer of a
television system, the method including collecting viewing data from a
multiplicity of viewers of a television system, computing audience
information from the collected viewing data, and transmitting the computed
audience information to a viewer of the television system (col. 8, ll. 30-38).
5. A profile determination apparatus within the intelligent agent
gathers information regarding the user’s viewing pattern, including the
length that the viewer views a portion of one television program, and
compares it with a predetermined viewing threshold length; wherein, when
the viewing length is less than the threshold, the apparatus determines that
the viewer is engaged in channel surfing behavior and generates the viewer
preference profile information based, at least in part, on the channel surfing
behavior and length of the portion viewed (col. 4, ll.30-51).
Hendricks
6. Hendricks discloses a center for controlling the operations of a
digital television program delivery system that allows for the organizing and
packaging of television programs for transmission in a television delivery
system (col. 3, ll. 11-16); wherein, the operations center 202 packages the
programs into the groups and categories which provide the optimal
marketing of the programs to subscribers based upon demographic data and
ratings (col. 8, ll. 11-14 and ll. 29-31).
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IV. ANALYSIS
Claims 1-6, 9-11, 13-28, 80-85, 87-90, 92-107,
159-164, 167-169, and 171-186

Appellants contend that “Maissel does not show computing
information about recorded programs” since “Maissel captures a real-time
measure of the total audience viewing a particular program at a particular
time” and “[s]uch a measure does not take into account recorded programs,
which are programs that have been stored and played back after their
broadcast” (App. Br. 15-16). Appellants argue that “Maissel also does not
show updating audience size information for a recorded program in response
to receiving indications of playbacks of the recorded program from audience
members” (App. Br. 16).
However, the Examiner finds that “[t]he Pay program, non-pay or free
programs, popular programs …, movies and NVOD … are all recorded
programs and the monitoring agent monitors user(s) behavior, actions or
indications as to playbacks of these recorded programs at the headend,
generates these analysis for presentation to at least one viewer” (Ans. 16).
We give the claim its broadest reasonable interpretation consistent
with the Specification. See In re Morris, 127 F.3d 1048, 1054 (Fed. Cir.
1997). However, we will not read limitations from the Specification into the
claims. In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993).
Claim 1 does not place any limitation on what “playback” and
“recorded program” mean, include, or represent. The Specification is silent
as to any definition of either term. We give “playback” its ordinary meaning
as the reproduction of sound or pictures after recording of the same and
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“record” its ordinary meaning as to cause sound, visual images, or data to be
registered on a tangible medium in a reproducible form. Thus, we give
“playbacks of a recorded program” its broadest reasonable interpretation as
the reproduction of audio or visual data that is registered on a tangible
medium, as consistent with the Specification and as specifically defined in
claim 1.
Maissel discloses a television system having an intelligent agent that
customizes an electronic program guide based upon a viewer’s viewing
behavior (FF 1). The system sends to the viewer an unsolicited alert
including a portion of the customized program schedule information and
audience viewing information related to the viewer’s preference (FF 2). In
addition, the system sends the viewer information concerning the audience
viewing information for a program currently being viewed by the viewer or
for one that is not currently being viewed (FF 3). The method of generating
the audience information includes collecting viewing data from the viewers,
computing audience information and transmitting this information to the
viewers (FF 4). We find that the programs presented to the viewer by the
television system are a reproduction of audio and visual data that is
registered on a tangible medium. That is, unless the system feeds the
programs to the viewer’s monitor using a live stream, the programs typically
are previously recorded programs. In particular, when the viewer watches a
program, the program is being reproduced after being registered in a tangible
medium, such as a disc or magnetic tape. Thus, we find that “playbacks of
the recorded program” (claim1) reads on Maissel’s viewing of the systems’
programing.
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We also find that the audience information collected regarding the
number of viewers viewing a currently watched program and the number of
viewers viewing a program that is not currently being watched comprises
receiving indications of the playbacks of the recorded programing.
Particularly, we find that “receiving indications of playbacks of the recorded
program from a plurality of audience members” and “updating audience size
information for the recorded program in response to receiving the
indications from the plurality of audience members” (claim 1) read on
Maissel’s audience information collection method.
Accordingly, we find that Appellants have not shown that the
Examiner erred in rejecting claim 1 under 35 U.S.C. § 102(e) over Maissel.
Further, independent claims 80 and 159 which have similar claim limitations
and claims 2-6, 11, 13-28, 81-85, 87, 90, 92-107, 160-164, 169, and 171-186
(depending from claims 1, 80, and 159), which have not been argued
separately, fall with claim 1. Further, Appellants provide a similar argument
with respect to claims 9, 10, 88, 89, 167, and 168 (App. Br. 24-25). Thus,
these claims also fall with claim 1.
Claims 29-46, 50, 108-121,123-125,129,
187-204, and 208
Appellants contend that “Maissel does not show or suggest calculating
audience size information based on a graded approach of ‘assigning a
predetermined quantity of points to each of a plurality of actions performed
by a plurality of audience members’” (App. Br. 18). Appellants assert that
“Maissel’s intelligent agent is merely used to alert users of programs based
on the information in their preference profiles” (App. Br. 19). Appellants
finally contend that “the Examiner has failed to provide any evidence that
Maissel necessarily performs this function” (App. Br. 21).
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However, the Examiner finds that Maissel teaches that “the viewing
behavior data includes various viewer actions, such as, length of portions of
viewed programs, preference strength …, percentage of all occurrences of
the programs that were viewed, channel surfing behavior (actions of the
viewers), where the viewer behavior data is determined based on these
actions, compared to a predetermined threshold” (Ans. 18). The Examiner
notes that Maissel also discloses a “rule-base abstracted method to generate
various on-screen alerts to display behavior data or audience data of current
programs being watched and programs not being watched” (id.).
In the Reply Brief, Appellants contend that “Maissel’s monitoring of
the length of the portion of a television program viewed is not related to the
calculation of audience size information” (Reply Br. 7).
Since claim 29 does not place any limitation on “graded approach”
and “points,” we give “the calculating is based on a graded approach of
assigning a predetermined quantity of points to each of a plurality of actions
of performed by a plurality of audience members” its broadest reasonable
interpretation as designating a quantifiable count to any viewer action, as
consistent with the Specification and as specifically defined in claim 29.
As noted supra, Maissel discloses an intelligent agent that generates
the customized program schedule information and audience viewing
information is based on viewing patterns of the viewers (FF 2 and 3). In
addition, Maissel discloses that a profile determination apparatus within the
intelligent agent gathers information regarding the length that a user views a
program and compares it with a predetermined viewing threshold length;
wherein, when the viewing length is less than the threshold, the apparatus
determines that the viewer is engaged in channel surfing behavior and
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generates the viewer preference profile information based the user’s
behavior and length of the portion viewed (FF 5).
We find that the predetermined viewing threshold length and the
length of time that the viewer views the program both comprise quantifiable
counts of the viewer’s action. That is we find that “calculating audience size
information for a program corresponding to at least one of the one or more
program listings, wherein the calculating is based on a graded approach of
assigning a predetermined quantity of points to each of a plurality of actions
of performed by a plurality of audience members” (claim 29) reads on
Maissel’s intelligent agent that transmits audience information to the viewer.
Accordingly, we find that Appellants have not shown that the
Examiner erred in rejecting claim 29 under 35 U.S.C. § 102(e) over Maissel.
Further, independent claims 108 and 187 have similar claim limitations and
claims 30-46, 50, 109-121,123-125,129, 188-204, and 208 (depending from
claims 1, 108, and 187), which have not been argued separately, fall with
claim 29.
Claims 51-56, 60-79, 130-135,137,139-158,
209-214, and 218-237

Appellants contend that “Maissel updates audience information based
only on programs currently being broadcast” and “makes no reference to
providing such information for an upcoming program” (App. Br. 22).
However, the Examiner finds that Maissel “generates [a] customize[d]
schedule for user(s) and provides audiences information to user(s) with
respect to programs currently being watch or not watched” (Ans. 19).
After reviewing the record on appeal, we agree with Appellants.
Although the Examiner finds that Maissel discloses the display of “audience
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viewing … includ[ing] a program not currently being viewed by a viewer
(upcoming programs)” (Ans. 20), we cannot find any disclosure of
“receiving indications from a plurality of audience members to perform
actions related to the upcoming program” as required by claim 51 (emphasis,
added) in the recited portions of Maissel referenced by the Examiner. That
is, the audience viewing pattern of the program schedule information
(including upcoming programs) is not disclosed in Maissel, only audience
information based upon programs being currently broadcasted.
Accordingly, we find that Appellants have shown that the Examiner
erred in rejecting claim 51 under 35 U.S.C. § 102(e) over Maissel. Further,
independent claims 130 and 209 which have similar claim limitations and
claims 52-56, 60-79, 131-135, 139-158, 210-214, and 218-237 (depending
from claims 51, 130, and 209), which have not been argued separately, stand
with claim 51. Further, Appellants provide a similar argument with respect
to claims 71, 150, and 229 (App. Br. 26). Thus, these claims also stand with
claim 51.
Claims 8, 58, 87, 137, 166, and 216
As to dependent claim 8, Appellants contend that “Hendricks does not
show or suggest updating a market share of a recorded program” but
“[i]nstead, Hendricks discusses a system that may be used to increase market
share by optimally packaging video programs” (App. Br. 27).
However, the Examiner finds that “Hendricks teaches analyzing rating
for television shows to determine the appropriate schedule or program lineup
to gain market share and revenue from advertising” (Ans. 15, emphasis
removed).
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After reviewing the record on appeal, we agree with Appellants.
Though we agree with the Examiner that Maissel discloses the displaying of
audience information within customized program schedules (FF 1-3) and
Hendricks does prepackage programs based upon demographics of the
viewing audience for marketing purposes (FF 6), we cannot find any
suggestion that the combination of Maissel and Hendricks teaches that
“updating audience size information comprises updating a market share of
the recorded program,” as required by claim 8, in the recited portions of
Maissel and Hendricks referenced by the Examiner.
Accordingly, we find that Appellants have shown that the Examiner
erred in rejecting claim 8 under 35 U.S.C. § 103(a) over Maissel in view of
Hendricks, and claims 87 and 166 (depending from claims 80 and 159), not
argued separately, stand with claim 8. Further, Appellants provide a similar
argument with respect to claims 58, 137, and 216 (App. Br. 26). Thus, these
claims also stand with claim 8.

V. CONCLUSION AND DECISION
The Examiner’s rejection of claims 1-6, 9-11, 13-46, 50, 80-85, 87-90,
92-121,123-125,129, 159-164, 167-169, and 171-204, and 208 under
35 U.S.C. § 102(e) is affirmed, while the Examiner’s rejection of claims 51-
56, 60-79, 130-135, 139-158, 209-214, and 218-237 under 35 U.S.C.
§ 102(e) and of claims 8, 58, 87, 137, 166, and 216 under 35 U.S.C. § 103(a)
is reversed.

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).
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AFFIRMED-IN-PART

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