Ex Parte Curd et alDownload PDFPatent Trial and Appeal BoardFeb 9, 201612417632 (P.T.A.B. Feb. 9, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 12/417,632 0410312009 86548 7590 Garlick & Markison (IH) P.O. Box 160727 Austin, TX 78716-0727 02/11/2016 FIRST NAMED INVENTOR Ian Curd 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. 121-RCS-02-2009 6855 EXAMINER KWONG, CHO YIU ART UNIT PAPER NUMBER 3693 NOTIFICATION DATE DELIVERY MODE 02/11/2016 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): MMurdock@TEXASPATENTS.COM ghmptocor@texaspatents.com bpierotti@texaspatents.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte IAN CURD, IAN KILDAY, and RICHARD ATKIN Appeal2013-005749 1 Application 12/417 ,6322 Technology Center 3600 Before ANTON W. PETTING, NINA L. MEDLOCK, and TARA L. HUTCHINGS, Administrative Patent Judges. MEDLOCK, Administrative Patent Judge. DECISION ON APPEAL 1 Our decision references Appellants' Appeal Brief ("Br.," filed September 4, 2012) and the Examiner's Answer ("Ans.," mailed December 19, 2012), Advisory Action ("Adv. Act.," mailed June 26, 2012), and Final Office Action ("Final Act.," mailed April 6, 2012). 2 Appellants identify Clear Channel Management Services, Inc. as the real party in interest. Br. 3. Appeal2013-005749 Application 12/417,632 STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's final rejection of claims 1--4, 11-14, and 16-19. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. CLAIMED INVENTION Appellants' claimed invention "relates generally to multimedia, and more particularly to providing content related to commercial media programs" (Spec. i-f 2). Claim 1, reproduced below, is illustrative of the subject matter on appeal: 1. A method for use in a device configured to implement an automated media content scheduling system, the device including a memory and a processor programmed to implement the method, the method comprising: obtaining a plurality of filtering criteria related to a consumer survey; storing, in memory, a plurality of historic data regarding historical listener data for a first set of parameters relating to an advertisement; filtering, using processing circuitry, the plurality of historic data based on the plurality of filtering criteria to generate a filtered set of historic data; generating, using the processing circuitry, a predicted gross rating point value for the advertisement for the first set of parameters based on filtered set of historic data; updating the plurality of historic data stored in the memory; generating, using the processor, an updated predicted gross rating point value in response to updating the plurality of historic data; and 2 Appeal2013-005749 Application 12/417,632 continually adjusting, using the processor, an advertising schedule to maintain the predicted gross rating point value between upper and lower boundary values. REJECTIONS Claims 1--4, 11-14, 16, 18, and 19 are rejected under 35 U.S.C. § 103(a) as unpatentable over Lewis (US 2006/0293974 Al, pub. Dec. 28, 2006) and Altberg (US 8,140,389 B2, iss. Mar. 20, 2012). Claim 17 is rejected under 35 U.S.C. § 103(a) as unpatentable over Lewis, Altberg, and Bollapragada (US 2007/0239536 Al, pub. Oct. 11, 2007). ANALYSIS Independent claims 1, 11, and 16 and dependent claims 2--4, 12-14, 16, 18, and 19 As an initial matter, we do not agree with the Examiner that the phrase "to maintain the predicted gross rating point value between upper and lower boundary values," as recited in claim 1, and similarly recited in independent claims 11 and 16 is not entitled to patentable weight because it is "considered to be an intended result of 'adjusting an advertising schedule'" and also "considered as language that suggests or makes optional but does not require steps to be performed or does not limit a claim to a particular structure [or] does not limit the scope of a claim or claim limitation" (Adv. Act. 2, see also Final Act. 5, 8, 11; Ans. 3--4). Instead, we find that the phrase defines the functionality and, therefore, the meaning of the "adjusting" step, i.e., the advertising schedule is adjusted so that the predicted gross rating point value is maintained between upper and lower boundary values as opposed to being adjusted in a different way, for a 3 Appeal2013-005749 Application 12/417,632 different reason, or to achieve a different result. The phrase, thus, effectively limits the scope of the claims; otherwise, "continually adjusting an advertising schedule" would have much broader scope, and would ostensibly encompass "continually adjusting ... an advertising schedule" for any and all reasons. Turning to the prior art rejection, the Examiner relies on Lewis as disclosing substantially all of the limitations of independent claims 1, 11, and 16 except the Examiner acknowledges that Lewis does not disclose "continually adjusting ... an advertising schedule to maintain the predicted gross rating point value between upper and lower boundary values," as recited in claim 1, and similarly recited in claims 11 and 16 (Final Act. 5; see also id. at 8, 11 ). The Examiner cites column 48, lines 1 7-28 of Altberg to cure the deficiency of Lewis, and the Examiner concludes that it would have been obvious to a person of ordinary skill at the time of Appellants' invention "to modify the advertising method taught by Lewis with [the] teaching from Altberg to adjust advertising effort to generate an advertising exposure within a specific range of anticipated performance" (see, e.g., id. at 5). The Examiner asserts, "[ o ]ne of ordinary skill in the art would have been motivated [to modify Lewis in this way] as generating exposure above a lower limit fulfills offered commitment; generating exposure below an upper limit reduces over-delivery" (id. at 5---6). Altberg is directed to a method for allowing advertisers to participate in a pay per call advertising program without requiring that the advertisers maintain a web presence (Altberg, col. 5, 11. 41--44). In accordance with the method, an advertisement, including a unique telephone number or a reference to a unique telephone number, is published or provisioned on a 4 Appeal2013-005749 Application 12/417,632 publication or media channel on the advertiser's behalf; the advertiser is then charged based on the phone call activity through the assigned telephone number (id. at col. 6, 11. 1-13). Altberg discloses at column 48, lines 17-28, cited by the Examiner, that the subscription price is based on a range of anticipated performance of the advertisement, and that the system may offer to deliver at least 100 calls, 200 calls, 300 calls, etc. for a subscription period, e.g., a week or a month. Thus, if an advertiser selects the 100 call level, the system attempts to present advertisements in one or more media channels to generate at least 100 calls for the subscriber during the subscription period. We agree with Appellants that although Altberg discloses setting an advertising schedule to obtain a minimum number of calls, e.g., 100 calls, we find nothing in the cited portion of Altberg that discloses or suggests "continually adjusting" the advertising schedule, as recited in independent claim 1, and similarly recited in independent claims 11 and 16 (Br. 7-8). Therefore, we do not sustain the Examiner's rejection of independent claims 1, 11, and 16 under 35 U.S.C. § 103(a). For the same reasons, we also do not sustain the Examiner's rejection under 35 U.S.C. § 103(a) of dependent claims 2--4, 12-14, 16, 18, and 19. Cf In re Fritch, 972 F .2d 1260, 1266 (Fed. Cir. 1992) ("dependent claims are nonobvious if the independent claims from which they depend are nonobvious"). Dependent claim 17 Claim 17 depends from independent claim 16. The Examiner's rejection of claim 17 based on Bollapragada, in combination with Lewis and Altberg, does not cure the deficiency in the Examiner's rejection of independent claim 16. Therefore, we do not sustain the Examiner's rejection 5 Appeal2013-005749 Application 12/417,632 of claim 17 under 35 U.S.C. § 103(a) for the same reasons set forth above with respect to independent claim 16. DECISION The Examiner's rejections of claims 1--4, 11-14, and 16-19 under 35 U.S.C. § 103(a) are reversed. REVERSED 6 Copy with citationCopy as parenthetical citation