Ex Parte Carney Landow et al

Patent Trial and Appeal Board

Jul 26, 2018

14675889 (P.T.A.B. Jul. 26, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/675,889
113273 7590
Bejin Bieneman PLC
2000 Town Center
Suite 800
Southfield, MI 48075
04/01/2015
07/30/2018
FIRST NAMED INVENTOR
Kate Megan Carney Landow
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.
P2015-03-01(01258-0052) 7334
EXAMINER
ALATA, YASSIN
ART UNIT PAPER NUMBER
2426
NOTIFICATION DATE DELIVERY MODE
07/30/2018 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):
docket@b2iplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KATE MEGAN CARNEY LANDOW and
JOHN ANTHONY CARD II
Appeal2018-001770
Application 14/675,889 1
Technology Center 2400
Before ERIC S. FRAHM, BETH Z. SHAW, and
JAMES W. DEJMEK, Administrative Patent Judges.
DEJMEK, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from a Non-Final
Rejection of claims 1, 3-10, 12-14, 16-20, and 22. Appellants have
cancelled claims 2, 11, 15, and 21. See Non-Final Act. 3. We have
jurisdiction over the remaining pending claims under 35 U.S.C. § 6(b). See
Ex parte Lemoine, 46 USPQ2d 1420, 1423 (BP AI 1994) (precedential).
We affirm.
1 Appellants identify EchoStar Technologies L.L.C. as the real party in
interest. App. Br. 2.
Appeal2018-001770
Application 14/675,889
STATEMENT OF THE CASE
Introduction
Appellants' disclosed and claimed invention is directed to aggregating
(i.e., assembling) a plurality of media segments, consistent with the
preferences of a consumer, to generate a media content item. Spec. ,r 13. In
a disclosed embodiment, the preferences may identify characteristics of the
media segment that are not desired by the consumer for inclusion in the
generated media content item. See Spec. ,r,r 57---60, 70-72.
Claim 1 is representative of the subject matter on appeal and is
reproduced below with the disputed limitations emphasized in italics:
1. A computing device comprising processor and a memory,
the memory storing instructions such that the processor is
programmed to:
receive a media content item that includes two or more
segments;
receive at least one parameter providing at least one media
data characteristic;
determine the at least one characteristic is included in one
or more segments of the media content item by analyzing at least
one of image data and audio data in the media content item;
select one or more segments to be included in a second set
of data based on the determination that the respective segment
includes the characteristic;
exclude the segments including the characteristic from the
second set of data;
assemble the second set of data from the selected one or
more segments in a sequence based on indexes respectively
associated with the segments; and
provide the second set of data to a user device.
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Appeal2018-001770
Application 14/675,889
The Examiner's Rejection
Claims 1, 3-10, 12-14, 16-20, and 22 stand rejected under 35 U.S.C.
§ 103 as being unpatentable over Holtz et al. (US 2002/0053078 Al; May 2,
2002) ("Holtz") and Hartley et al. (US 2013/0188923 Al; July 25, 2013)
("Hartley"). Non-Final Act. 4--9.
ANALYSIS 2
Appellants assert the Examiner's proposed combination of Holtz and
Hartley is improper because the proposed combination would render the
modified Holtz system unsatisfactory for its intended purpose. App. Br. 6;
Reply Br. 2-3. In particular, Appellants argue the proposed modification of
Holtz's system would use the "fingerprint" techniques of Hartley to allow a
user to edit a live broadcast (i.e., media content). App. Br. 6. Appellants
assert that all segments comprising the broadcast would contain the
fingerprint taught by Hartley and that, therefore, using the fingerprint to
exclude segments would result in all segments being excluded. App. Br. 6.
Thus, Appellants contend such an outcome would render the modified Holtz
system unsatisfactory for its intended purpose. App. Br. 6.
Appellants' arguments are not persuasive of Examiner error because
they are not responsive to the rejection as articulated by the Examiner. The
Examiner finds Holtz teaches all the limitations of, inter alia, independent
claim 1 except that determining the at least one characteristic is included in
2 Throughout this Decision, we have considered the Appeal Brief, filed
May 30, 2017 ("App. Br."); the Reply Brief, filed December 4, 2017
("Reply Br."); the Examiner's Answer, mailed October 5, 2017 ("Ans.");
and the Non-Final Office Action, mailed December 30, 2016 ("Non-Final
Act."), from which this Appeal is taken.
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Appeal2018-001770
Application 14/675,889
one or more segments of the media content by analyzing at least one of
image data and audio data in the media content item is performed manually
by an operator rather than by a device. Non-Final Act. 5; Ans. 5---6. The
Examiner finds Hartley teaches using a device to analyze a video segment
and determine a fingerprint-i.e., a characteristic----of the segment. Non-
Final Act. 5 ( citing Hartley ,r 50); Ans. 5---6 ( citing Hartley ,r 32). Thus, as
the Examiner explains, "Hartley is relied upon only to show that the above
step [(i.e., determining at least one characteristic is included in the media
content stream by analyzing at least one of the image data or audio data)] is
done using a device [and] not manually by an operator." Ans. 6.
The test for obviousness is not whether the features of one reference
may be bodily incorporated into another reference. In re Bozek, 416 F .2d
1385, 1390 (CCPA 1969). The relevant inquiry is whether the claimed
subject matter would have been obvious to those of ordinary skill in the art
in light of the combined teachings of those references. See In re Keller, 642
F.2d 413,425 (CCPA 1981). "Combining the teachings of references does
not involve an ability to combine their specific structures." In re Nievelt,
482 F.2d 965, 968 (CCP A 1973).
The Examiner's proposed modification of Holtz is merely to use a
device to perform the analysis of the media content (as taught by Hartley) to
determine whether a particular characteristic is included in the media content
segment. Thus, contrary to Appellants' arguments (see, e.g., App. Br. 6;
Reply Br. 2-3), the proposed modification would not render Holtz's system
unsatisfactory for its intended purpose.
Additionally, Appellants assert the Examiner erred in equating
Hartley's "fingerprint" to the claimed "characteristic." App. Br. 6-7; Reply
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Appeal2018-001770
Application 14/675,889
Br. 2-3. In particular, Appellants argue such a construction exceeds the
broadest reasonable interpretation of the term "characteristic" and is
inconsistent with the Specification. App. Br. 6-7; Reply Br. 2-3.
Appellants contend: "The term 'characteristic' is defined in the
Specification by various examples. Specifically, the broadest reasonable
interpretation of the claim term 'characteristic' is an attribute defining
whether the content is appropriate given the context in which the content is
presented." App. Br. 7 (citing Spec. ,r,r 59, 101). In contrast, Appellants
argue, Hartley teaches hash tokens of an audio signal define the
"fingerprint" of a video segment and that the hash tokens "do not represent
whether the content is appropriate for the context in which the content is
presented." App. Br. 7.
We disagree. The Examiner does not equate Hartley's fingerprint to
the claimed "characteristic," as asserted by Appellants. See App. Br. 6.
Instead, as the Examiner explains, Hartley's function of fingerprinting
results in characterizing a video segment. Ans. 6. In other words, as
discussed above, the Examiner relies on Hartley to teach using a device to
analyze a segment to determine the presence of a characteristic. The
Examiner finds, and we agree, Holtz teaches an operator analyzing a
segment to determine if a characteristic is included in the segment. See
Ans. 5 (citing Holtz ,r,r 173, 267).
Further, we disagree with Appellants' proposed construction of a
"characteristic" as "an attribute defining whether the content is appropriate
given the context in which the content is presented." See App. Br. 7 (citing
Spec. ,r,r 59, 101).
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Appeal2018-001770
Application 14/675,889
"In the patentability context, claims are to be given their broadest
reasonable interpretations ... limitations are not to be read into the claims
from the specification." In re Van Geuns, 988 F.2d 1181, 1184 (Fed.
Cir. 1993) ( citations omitted). Any special meaning assigned to a term
"must be sufficiently clear in the specification that any departure from
common usage would be so understood by a person of experience in the
field of the invention." Multiform Desiccants, Inc. v. Medzam, Ltd., 133
F.3d 1473, 1477 (Fed. Cir. 1998); see also Helmsdeifer v. Bobrick
Washroom Equip., Inc., 527 F.3d 1379, 1381 (Fed. Cir. 2008) ("A patentee
may act as its own lexicographer and assign to a term a unique definition
that is different from its ordinary and customary meaning; however, a
patentee must clearly express that intent in the written
description."). Absent an express intent to impart a novel meaning to a
claim term, the words take on the ordinary and customary meanings
attributed to them by those of ordinary skill in the art. Brookhill-Wilk 1,
LLC v. Intuitive Surgical, Inc., 334 F.3d 1294, 1298 (Fed. Cir. 2003)
( citation omitted).
In the Specification, Appellants state that unless an explicit indication
to the contrary is made, claim terms are to be given their plain and ordinary
meaning. Spec. ,r 111. Paragraphs 59 and 101, identified by Appellants, do
not provide an explicit definition of a "characteristic," but rather provide a
non-limiting and non-exhaustive set of examples of what may be indicated
by a characteristic. See Spec. ,r 59, 101. Appellants' discussion of a
characteristic in the Specification falls well short of providing a unique
definition for the term "characteristic."
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Appeal2018-001770
Application 14/675,889
Holts teaches, inter alia, a segment type classification comprising a
major and minor classification of a segment. Holtz ,r 173. Holtz provides
exemplary classification of a major classification being sports and a minor
classification of baseball. Holtz ,r 173. Such classifications are specified by
an operator. Holtz ,r 1 73. We agree with the Examiner that the specification
of a segment type classification (as taught by Holtz) teaches or reasonably
suggests determining whether a characteristic (i.e., are baseball games
present or referenced) is included in a segment by analyzing the segment.
See Ans. 5---6.
For the reasons discussed supra, we are unpersuaded of Examiner
error. Accordingly, we sustain the Examiner's rejection of independent
claim 1. For similar reasons, we sustain the Examiner's rejection of
independent claim 16, which recites similar limitations and was not argued
separately. App. Br. 7; see also 37 C.F.R. § 4I.37(c)(l)(iv) (2016).
Additionally, we sustain the Examiner's rejection of claims 3-10, 12-14,
17-20, and 22, which depend directly or indirectly therefrom and were not
argued separately. App. Br. 7.
DECISION
We affirm the Examiner's decision rejecting claims 1, 3-10, 12-14,
16-20, and 22 under 35 U.S.C. § 103.
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). See
37 C.F.R. § 41.50(±).
AFFIRMED
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