Ex Parte Candelore

Patent Trial and Appeal Board

Oct 25, 2016

13281626 (P.T.A.B. Oct. 25, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/281,626 10/26/2011 Brant L. Candelore
36738 7590 10/27/2016
ROGITZ & AS SOCIA TES
750B STREET
SUITE 3120
SAN DIEGO, CA 92101
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.
201003889.02 1096
EXAMINER
ALCON, FERNANDO
ART UNIT PAPER NUMBER
2425
NOTIFICATION DATE DELIVERY MODE
10/27/2016 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):
Noelle@rogitz.com
eofficeaction@appcoll.com
J ohn@rogitz.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BRANT L. CANDELORE
Appeal2015-006578
Application 13/281,626
Technology Center 2400
Before ST. JOHN COURTENAY III, JAMES R. HUGHES, and
MATTHEW J. McNEILL, Administrative Patent Judges.
COURTENAY, 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 1-22. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Invention
The disclosed and claimed invention on appeal relates to a television
receiver device wherein viewers can select a version of program content
(e.g., censored versus non-censored) based upon their own preferences and
values. (Spec. 2, 11. 12-13).
Appeal2015-006578
Application 13/281,626
Representative Claim
1. A television receiver device, comprising:
an interface configured to receive audio video (A/V)
program content and tuning information;
a processor programmed to:
tune to a designated television program;
[L 1] receiving and executing an Enhanced Binary
Interchange Format (EBIF) app that is received as data
forming a part of the designated television program;
[L2] under control of the EBIF app, present an option to
tune to the designated television program with either a
censored or uncensored version of audio;
upon receipt of an instruction to tune to the designated
television program with uncensored audio, tune to a substitute
audio stream identified with a secondary packet identifier;
where the substitute audio stream substitutes uncensored
segments of audio for censored segments of audio.
(Contested limitations L 1 and L2 are emphasized).
Rejection
Claims 1-22 are rejected under 35 U.S.C. § 103(a) as being obvious
over the combined teachings and suggestions of Candelore et al. (US
2006/0130119 Al; June 15, 2006), Ryal (US 2005/0066357 Al; Mar. 24,
2005), Slothouber et al. (US 2010/0299715 Al; Nov. 25, 2010), and Urdang
et al. (US 2003/0208768 Al; Nov. 26, 2003).
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Grouping of Claims
Based on Appellant's arguments in the principal Brief, we decide the
appeal on the basis of separately argued independent claims 1, 9, and 16, and
separately argued dependent claims 4, 7, and 8. See 37 C.F.R.
§ 41.37(c)(l)(iv).
ANALYSIS
We have considered all of Appellant's arguments and any evidence
presented. We disagree with Appellant's arguments, and we adopt as our
own: ( 1) the findings and legal conclusions set forth by the Examiner in the
action from which this appeal is taken, and (2) the findings, legal
conclusions, and explanations set forth in the Answer in response to
Appellant's arguments. (Ans. 8-13). However, we highlight and address
specific findings and arguments for emphasis in our analysis below.
Rejection of Independent Claim 1under35 U.S.C. § 103(a)
Comb inability under § 103
At the outset, we find unpersuasive Appellant's general contentions
the Examiner has improperly combined the cited references under § 103.
(e.g., "When considering the general nature of Candelore's disclosure, it is a
completely different approach to associate an EBIF app with a television
program that presents options to a user, when compared to a generalized
filtering application that has no specific association with an individual
television program." -App. Br. 12). 1
1 See Nat'! Steel Car, Ltd. v. Canadian Pac. Ry., Ltd., 357 F.3d 1319, 1339
(Fed. Cir. 2004) ("A finding that two inventions were designed to resolve
different problems ... is insufficient to demonstrate that one invention
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Rather, we find Appellant's invention is simply a combination of
familiar elements performing known functions (as taught by the cited
Candelore, Ryal, Slothouber, and Urdang references) that would have
realized a predictable result. The Supreme Court guides the conclusion of
obviousness can be based on the interrelated teachings of multiple patents,
the effects of demands known to the design community or present in the
marketplace, and the background knowledge possessed by a person having
ordinary skill in the art. KSR Int'! Co. v. Teleflex, Inc., 550 U.S. 398, 418
(2007). The skilled artisan is "a person of ordinary creativity, not an
automaton." Id. at 4 21.
Here, we find the Examiner's proffered combination (Final Act. 3---6)
is reasonable because "[ c ]ommon sense teaches ... that familiar items may
have obvious uses beyond their primary purposes, and in many cases a
person of ordinary skill will be able to fit the teachings of multiple patents
together like pieces of a puzzle." KSR 550 U.S. at 420. Moreover, "the
analysis need not seek out precise teachings directed to the specific subject
matter of the challenged claim, for a court can take account of the inferences
and creative steps that a person of ordinary skill in the art would employ."
KSR 550 U.S. at 418. Given this reasoning, we agree with the Examiner that
teaches away from another."). It is sufficient that the references suggest
doing what Appellant did, although the Appellant's particular purpose was
different from that of the references. In re Heck, 699 F.2d 1331, 1333 (Fed.
Cir. 1983) (citing In re Gershon, 372 F.2d 535, 538-39 (CCPA 1967)).
"Obviousness is not to be determined on the basis of purpose alone." In re
Graf, 343 F .2d 77 4, 777 (CCP A 1965).
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the proffered combination of references would produce predictable results.
(Final Act. 3---6).
Nor do we find persuasive Appellant's mere allegation of
impermissible hindsight reconstruction. (App. Br. 17). The Supreme Court
guides: "[r]igid preventative rules that deny factfinders recourse to common
sense ... are neither necessary under our case law nor consistent with it."
KSR 550 U.S. at 421. On this record, we find the Examiner provided
sufficient articulated reasoning with some rational underpinning to support
the legal conclusion of obviousness (Final Act. 3---6). Appellant does not
point to any evidence of record that shows combining the references in the
manner proffered by the Examiner (id.) would have been "uniquely
challenging or difficult for one of ordinary skill in the art" or would have
"represented an unobvious step over the prior art." Leapfrog Enters., Inc. v.
Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007) (citing KSR, 550
U.S. at 418). Nor has Appellant provided objective evidence of secondary
considerations which our reviewing court guides "operates as a beneficial
check on hindsight." Cheese Systems, Inc. v. Tetra Pak Cheese and Powder
Systems, Inc., 725 F.3d 1341, 1352 (Fed. Cir. 2013).
Therefore, on this record, and by a preponderance of the evidence, we
are not persuaded the Examiner erred by improperly combining the
references under § 103.
5
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comestea Lzmztatzons unaer s 1 U5 ~
Issue: Under 35 U.S.C. § 103(a), did the Examiner err in finding the
cited combination of Candelore, Ryal, Slothouber, and Urdang would have
taught or suggested contested limitations L 1 and L2:
[L 1] receiving and executing an Enhanced Binary
Interchange Format (EBIF) app that is received as data
forming a part of the designated television program [,]
[L2] under control of the EBIF app, present an option to
tune to the designated television program with either a
censored or uncensored version of audio;
within the meaning of claim 1? 3 (Emphasis added).
Regarding limitation LI, Appellant refers principally to Slothouber,
and contends, inter alia:
There is no teaching or suggestion that the EBIF app is received
as data forming a part of the designated program as originally
claimed. The term "transport stream" cannot simply be
interpreted as meaning "program stream". The two terms have
clearly different meanings to one skilled in the art. In essence, a
transport stream usually carries one or more program streams as
well as various system information as payloads thereto. The
program stream is a data structure of one or more elementary
streams (audio, video, other coded bit streams).
2 Regarding all contested limitations, we only consider Appellant's
arguments to the extent such arguments are directed to subject matter
actually claimed.
3 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); see also, e.g., Spec. (18-19).
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In support of Appellant's position, Appellant submitted
as EVIDENCE excerpts from "PSIP: Program and System
Information Protocol", by Mark Eyer, The McGraw Hill
Companies, Inc., 2003. It is noted that Mr. Eyer is an employee
of the assignee of the present application, but this text is
considered the "bible" of PSIP by many. It is clear from review
of these excerpts, that a program stream cannot be properly
interpreted as a transport stream. Page 22 provides definitions
of the two terms while figure 3 .15 graphically illustrates the
relationship between the transport stream and programs 1 and 2.
(App. Br. 10, emphasis added).
We have fully considered the rebuttal evidence 4 cited by Appellant.
(Id.). However, we broadly but reasonably interpret the claims - not the
reference. 5 We find the cited definitions for "program stream" and
"transport stream" (Chapter 3,. p. 22) are not relevant to our claim
construction, because claims 1, 9, and 16 are silent regarding both argued
terms. See n.2, supra.
Regardless of the general contentions and imputed intended meanings
articulated by Appellant in the Briefs, "[i]t is the claims that measure the
invention." See SRI Int'! v. Matsushita Elec. Corp. of Am., 775 F.2d 1107,
1121 (Fed. Cir. 1985) (en bane) (citations omitted); In re Hiniker Co., 150
4 "'PSIP: Program and System Information Protocol', by Mark Eyer, The
McGraw Hill Companies, Inc., 2003." (See App. Br. 10).
5 Claim construction always comes first. Only when the contested claim
terms are properly construed under BRI, can they then be read on the
corresponding features found in the reference(s). See e.g., Atlas Powder Co.
v. IRECO, Inc., 190 F.3d 1342, 1346 (Fed Cir. 1999) (citations omitted)
("Anticipation of a patent claim requires a finding that the claim at issue
'reads on' a prior art reference.").
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F.3d 1362, 1369 (Fed. Cir. 1998) (citations omitted) ("[T]he name of the
game is the claim.").
This reasoning is applicable here. We conclude the scope of the claim
term "data" broadly but reasonably encompasses the transport stream
program data and application data, as described Slothouber (i-f32) and
Urdang (i-f3 l ). 6 Moreover, Appellant acknowledges: "a transport stream
usually carries one or more program streams as well as various system
information as payloads thereto." (App. Br. 10). As described in Slothouber
(i-f32):
An EBIF User Agent on the Set-top box 135 detects an EBIF
trigger which may cause the User Agent to load and execute the
EBIF stream-switching application contained in the transport
stream. The EBIF application retrieves the appropriate targeting
information from the CPE device or User Agent data, and may
map it to the appropriate PID(s) according to its built-in table.
At the appropriate time, this EBIF application may switch the
CPE to display to the chosen alternate program PID content(s)
for the specified duration; and then may switch the CPE to
display the original program's PID.).
As also described in Urdang (i-f3 l ): "An MPEG-2 transport stream
contains multiple program streams with different video and audio feeds
multiplexed for transmission through the same transmission channel. The
program streams representing individual programs are identified by
6 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).
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respective program identifications (IDs) within a transport stream."
(Emphasis added).
We note the Examiner's rejection is based on the combined teachings
and suggestions of Candelore, Ryal, Slothouber, and Urdang. We find
unpersuasive Appellant's pattern of attacking each reference considered in
isolation. 7 Thus, we find the combination of references cited by the
Examiner (Final Act. 3---6) teaches or suggests receiving and executing an
Enhanced Binary Interchange Format (EBIF) app that is received as
[transport stream] data forming a part of the designated television program,
where the television program data, and the EBIF app data contained in the
transport stream, are merely types of data.
Regarding limitation L2, Appellant contends, inter alia:
The Examiner has erred by deconstructing and reconstructing
the claim language and then alleging that Candelore discloses
"presenting an option and based on the option tuning to either
of a censored or uncensored version of audio" at the bottom of
page 3. The Examiner fails to consider that the option being
presented that is alleged to be disclosed in Candelore is "under
control of the EBIF app".
(App. Br. 11, emphasis added).
The Examiner finds Candelore (i-fi-f 30, 59) teaches or suggests the
preceding tuning limitation, as recited in claim 1: "tune to a designated
television program;" (See Final Act. 3). However, the Examiner relies on
Slothouber for teaching the claimed EBIF app limitation:
At the time the invention was made it would have been obvious
to one of ordinary skill in the art to modify the systems of
7 One cannot show nonobviousness by attacking references individually
where the rejections are based on combinations of references. In re Merck
& Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
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Candelore [and] Ryal with the teaching of Slothouber; namely
transmitting an application for enabling the switching to
alternative content PIDs. The modification would predictably
result in receiving and executing EBIF applications for
channels with alternative content (such as multiple audio
versions based on rating) and further tuning/presenting an
option to tune the alternative uncensored segments of audio
through the use of the EBIF application's handling of PID
switching.
(Final. Act. 5).
Because Appellant has not addressed the Examiner's specific findings
regarding the combined teachings and suggestions of Candelore, Ryal,
Slothouber, and Urdang (id.), on this record, we are not persuaded the
Examiner erred regarding contested limitation L2.
Therefore, on this record, we find a preponderance of the evidence
supports the Examiner's underlying factual findings and ultimate legal
conclusion of obviousness regarding representative claim 1.
Accordingly, we sustain the rejection of independent claim 1.
Rejection of Independent Claim 9 under 35 U.S.C. § 103(a)
Appellant contends claim 9 is allowable for the same reasons we have
found unpersuasive regarding claim 1, supra. Appellant further contends:
"by way of separate argument for claim 9, claim 9 calls for the processor to
'determine that the television receiver device has been designated as opted in
for purposes of viewing adult rated programs'. The Examiner is totally
silent with respect to this claim feature in rejecting claim 9." (App. Br. 18).
However, Appellant fails to address the Examiner's findings
regarding the teachings and suggestions of Ryal:
Ryal discloses a separate audio stream for differently rated
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versions of content (See [0018]) and the device is programmed
to determine the television receiver device has been designated
as opted in for purposes of viewing adult rated content (See
Ryal [0022-0023] user can set a rating limit, i.e., R rating
reading on adult content. The device will determine if the rating
limit is exceeded, i.e., for a rating limit to be exceeded it must
be determined that a rating limit was set.).
At the time the invention was made it would have been
obvious to one of ordinary skill in the art to modify they system
taught by Candelore with the teaching of Ryal predictably
resulting in different versions of an audio stream and their
corresponding PIDs being selected based on a content version
desired by the user in order to provide alternative audio content
versions which comply with the MPEG standard which would
ease implementation.
(Final. Act. 4--5).
Because Appellant has not addressed the Examiner's specific findings
regarding the combined teachings and suggestions of Candelore, Ryal,
Slothouber, and Urdang (id.), on this record, we are not persuaded the
Examiner erred regarding the contested limitation of independent claim 9.
Rejection of Independent Claim 16 under 35 U.S.C. § 103(a)
Appellant recites the language of claim 16, and notes the claim:
contains multiple differences from that of claim 1. The specific
language used in this claim has not been addressed by the
Examiner in making the rejection. Instead, the Examiner
erroneously relies on the language of claim 1 without
consideration of any of the differences in the claim language.
(App. Br. 18).
The Examiner responds: "Despite Appellant[']s claims that the
language contains multiple differences, Appellant[] do[ es] not offer any
specific examples of features of claim 16 which are not addressed by the
analysis of the claims." (Ans. 12).
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We note claim 16 recites features similar to the features of claim 1
and claim 9, which Appellant has not persuasively traversed, for the reasons
discussed above. Appellant does not present separate, substantive arguments
and/or evidence regarding the argued general "multiple differences" recited
in claim 16. 8 Therefore, on this record, and by a preponderance of the
evidence, we are not persuaded the Examiner erred regarding the ultimate
legal conclusion of obviousness for independent claim 16.
Rejection of Dependent Claims 4, 12, and 19 under 35 U.S.C. § 103(a)
Claim 4 recites: "The television receiver device according to claim 1,
the processor is further programmed to determine that the television receiver
device has been designated as opted in for purposes of viewing adult rated
programs."
Appellant contends (App. Br. 20):
By way of separate additional argument, these claims call
for the processor to "determine that the television receiver
device has been designated as opted in for purposes of viewing
adult rated programs". The Examiner alleges this to be found in
Ryal at [0022]-[0023]. However, Appellant finds no such
disclosure at the cited locations. The cited disclosure permits
the user to set filtering parameters in advance that constrain
how the content filtering is to be carried out. Accordingly, the
Examiner has erred in failure to identify each and every claim
feature of claims 4, 12 and 19 in the cited art.
Further, the features of claims 1, 9 and 16 of use of the
claimed EBIF app must be considered in connection with the
8 See In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) ("[W]e hold that the
Board reasonably interpreted Rule 41.37 to require more substantive
arguments in an appeal brief than a mere recitation of the claim elements and
a naked assertion that the corresponding elements were not found in the
prior art.").
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further feature of an opt in function. This interplay has not
[been] addressed by the Examiner. (Emphasis added).
The Examiner disagrees (Ans. 11-12):
the features of opting in are met by paragraphs [0022-002[3]] of
Ryal (see analysis of claims 1, 3, 9, and 16,) where a user
can set a rating limit and Candelore [O 110-0111] where a
setting for upcoming programming designated up-rating or
down-rating the content. First "adult rated" content is a
subjective limitation, [9] however, Ryal discloses R rating
content is for mature audiences. Furthermore, a setting of these
options, by a user, prior to the content being displayed reads on
opting in "forming a part of the television receiver device
setup".
This claim language is broad and encompasses any selection of
an option which causes the television receiver device to
perform the corresponding selected option/function. Finally,
Appellant[] fail[ s] to address how an option to constrain how
the content filtering is to be carried out is different from the
claimed "option to tune to an uncensored version of audio is
made in advance of tuning". In the cited portions of Ryal
for example a user rating limit is retrieved from memory, i.e.,
the rating limit is preset, which reads on the claimed "option to
tune to an uncensored version of the audio in advance of tuning
... [.]" (Emphasis added).
In the Reply Brief (3), Appellant further responds:
With respect to the opting in feature of these claims, the
[Examiner] rel[ies] on ratings-setting teachings from Ryal and
Candelore. Setting the rating the viewer wants is not what is
claimed and does not implicate opting in or out as claimed ---
9 Claim scope cannot depend solely on the unrestrained, subjective opinion
of a particular individual purported to be practicing the invention. Datamize
LLC v. Plumtree Software, Inc., 417 F.3d 1342, 1350 (Fed. Cir. 2005).
However, a rejection under 35 U.S.C. 112, second paragraph, was not made
by the Examiner, and is therefore not before us on appeal.
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the viewers in Ryal and Candelore have already opted in and
are simply establishing ratings.
We note Appellant acknowledges the cited portion of Ryan (i-fi-122-23)
enables "[t]he user to set filtering parameters in advance that constrain how
the content filtering is to be carried out." (App. Br. 20, emphasis added).
We emphasize the Examiner's rejection is based on the combined teachings
and suggestions of Candelore, Ryal, Slothouber, and Urdang.
Regarding claim 1 (from which claim 4 depends), the Examiner found
(Final Act. 4): "Candelore discloses swapping [the] PID [(packet identifier
i-f33)] of default content with [the] PID of alternative content to 'up-rate'
content for more mature audiences" (citing to Candelore at Fig. 13, i-fi-158,
100-104). Moreover, we observe there is only a finite set of two
possibilities: "opt-in" or "opt-out." Therefore, we conclude selecting either
option from such a restricted set of options would have been obvious for an
artisan to try. 10 Given Appellant's admission regarding Ryan (App. Br.
20), and given the combined teachings of the cited references (e.g., Ryan,
Candelore ), on this record, we are not persuaded the Examiner erred.
Therefore, based on a preponderance of the evidence, we find the
cited combination at least suggests "the television receiver device has been
designated as opted in for purposes of viewing adult rated programs," within
10 Where "the problem is known, the possible approaches to solving the
problem are known and finite, and the solution is predictable through use of
a known option," a solution that is obvious to try may indeed be obvious.
Abbott Labs. v. Sandoz, Inc., 544 F.3d 1341, 1351 (Fed. Cir. 2008), citing
KSR, 550 U.S. at 398. See also Ortho-McNeil Pharm., Inc. v. Mylan Labs.,
Inc., 520 F.3d 1358, 1364 (stating the number of options must be "small or
easily traversed").
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, .. • £' , , • .. .. , .. • A 1 1 .l .. • .. , • me meamng or representauve aepenaem cia1m 4.'' Accoramg1y, we sustam
the rejection of representative dependent claim 4, and associated grouped
dependent claims 12 and 19, which fall with claim 4. See 37 C.F.R.
§ 41.37(c)(l)(iv).
Rejection of Dependent Claims 7, 15, and 21under35 U.S.C. § 103(a)
Claim 7 recites: "The television receiver device according to claim 1,
where the EBIF app programs tuning of the television receiver to a packet
identifier designated within system information."
Appellant focuses on the claim term "system information" and urges:
"The term 'system information' has a specific well understood meaning
within this area of technology. The term is sometimes also referred to as
'service information' in the art. This is noted and in fact the term 'system
information' is defined on page 16 of the specification." (App. Br. 21).
\Ve turn to the Specification (16, first full paragraph) for context:
It will be appreciated by those skilled in the art that the
present system can be implemented as a television device of
any sort, including a television set or television set including set
top box like functionality. It is also noted that one skilled in the
art will recognize upon consideration of the present teachings
that the use of the PSIP term "system information" or "SI" is
intended to be equivalent to "service information" or
information having similar functions with whatever
environment is utilized for conveying the content from a source
to a user device.
11 "[T]he question under 35 U.S.C. § 103 is not merely what the references
expressly teach but what they would have suggested to one of ordinary skill
in the art at the time the invention was made." Merck & Co., Inc. v. Biocraft
Laboratories, Inc., 874 F. 2d 804, 807-808 (Fed. Cir. 1989).
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(Emphasis added).
To the extent the aforementioned description might be considered a
definition by our reviewing court, we note the unbounded breadth of
"service information" as "information having similar functions with
whatever environment is utilized for conveying the content from a source to
a user device." (Id., emphasis added). Given the breadth of the recited
"service information," on this record we are not persuaded the Examiner's
claim interpretation is overly broad, unreasonable, or inconsistent with the
Specification ( 16). Therefore, we find a preponderance of the evidence
supports the Examiner's findings (Ans. 12):
Slothouber discloses in paragraph [0002] "MPEG transport
streams contain one or more packetized elementary streams
(PES) containing distinct (elementary) streams of video, audio,
and data. Each such elementary stream is associated with a
packet identifier (PID). The PIDs for the streams making up a
particular program are defined in a program map table (PMT)."
The PIDs are used by the system of Slothouber to map the
program streams. PIDs as noted by Appellant[] and by
Slothouber [0002] are necessarily "designated within system
information" by PATs and PMT, as required by the claim
limitation and thus met by Slothouber's use of PIDs.
Accordingly, we sustain the rejection of representative dependent
claim 7, and the associated grouped claims 15 and 21, which fall with claim
7. See 37 C.F.R. § 41.37(c)(l)(iv).
Rejection of Dependent Claim 8 under 35 U.S.C. § 103(a)
Claim 8 recites: "The television receiver device according to claim 1,
where the option to tune to an uncensored version of the audio is made in
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advance of tuning by use of an opt-in selection forming a part of the
television receiver device setup."
Appellant contends: "The Examiner alleges this to be found in
Candelore at [0100]-[0111] and Figs. 16A-16-D. However, the cited
disclosure sets parameters in advance that constrain how the content filtering
is to be carried out and fails to meet the claim features." (App. Br. 19).
We find Appellant's statement "the cited disclosure sets parameters in
advance that constrain how the content filtering is to be carried out" is at
least a partial admission that the cited portions of Candelore teach or at least
suggest claim 8. (App. Br. 19, emphasis added). Although Appellant
additionally asserts the "opt-in selection" feature was not addressed by the
Examiner in the rejection of claim 8 (id.), this feature was addressed by the
Examiner with respect to Ryal (Final Act. 4), as discussed above. We again
note there is only a finite set of two possibilities ("opt-in" or "opt-out"). We
conclude selecting either option from such a restricted set of options would
have been obvious. See n.10, supra.
Therefore, on this record, we find a preponderance of the evidence
supports the Examiner's underlying factual findings and ultimate legal
conclusion of obviousness regarding dependent claim 8. Accordingly, we
sustain the rejection of claim 8.
Remaining Claims Rejected under§ 103 (a)
Appellant advances no separate, substantive arguments regarding the
remaining rejected claims. Arguments not made are considered waived. See
37 C.F.R. § 41.37(c)(l)(iv). Therefore, we sustain the Examiner's rejection
of the remaining claims on appeal.
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Reply Brief
To the extent Appellant advances new arguments in the Reply Brief
not in response to a shift in the Examiner's position in the Answer, we note
arguments raised in a Reply Brief that were not raised in the Appeal Brief or
are not responsive to arguments raised in the Examiner's Answer will not be
considered except for good cause. See 37 C.F.R. § 41.41(b)(2).
DECISION
We affirm the Examiner's rejection of claims 1-22 under 35 U.S.C.
§ 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(±).
AFFIRMED
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