Ex Parte Evans

Patent Trial and Appeal Board

Nov 13, 2014

11762366 (P.T.A.B. Nov. 13, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
___________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
___________

Ex parte GREGORY MORGAN EVANS
___________

Appeal 2012-001973
Application 11/762,366
Technology Center 3600
___________

Before ANTON W. FETTING, BIBHU R. MOHANTY, and
NINA L. MEDLOCK, Administrative Patent Judges.
FETTING, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE1
Gregory Morgan Evans (Appellant) seeks review under 35 U.S.C. § 134
of a final rejection of claims 1–25, the only claims pending in the application
on appeal. We have jurisdiction over the appeal pursuant to
35 U.S.C. § 6(b).
The Appellant invented a push-caching scheme for a late-binding
advertisement architecture (Specification para. 0001).

1 Our decision will make reference to the Appellant’s Appeal Brief (“Appeal
Br.,” filed May 2, 2011) and Reply Brief (“Reply Br.,” filed September 19,
2011), and the Examiner’s Answer (“Ans.,” mailed July 19, 2011).
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An understanding of the invention can be derived from a reading of
exemplary claim 1, which is reproduced below [bracketed matter and some
paragraphing added].
1. A system comprising:
a) an ad content server
storing an advertisement
for each of a plurality of advertisement categories;
b) an advertisement cache
communicatively coupled to the ad content server
via a network,
the advertisement cache associated with at least one late-
binding system
adapted to perform late-binding
of advertisements to video content;
and
c) a cache assignment agent
associated with the ad content server
and
adapted to:
i) assign
at least one of the plurality of advertisement
categories
to
the advertisement cache;
and
ii) push
the advertisement
for the at least one of the plurality of
advertisement categories
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from the ad content server
to
the advertisement cache,
wherein the at least one late-binding system
subsequently obtains
the advertisement
from the advertisement cache
for use in a late-binding operation.
The Examiner relies upon the following prior art:
Gildea US 2006/0075057 A1 Apr. 6, 2006
Eldering US 7,039,932 B2 May 2, 2006
Garcia-Luna-Aceves US 7,565,450 B2 Jul. 21, 2009
Claims 1, 11, and 16 stand rejected under the judicially created doctrine
of obviousness double patenting as claiming an obvious variant to the same
subject matter as another U.S. Patent.
Claims 1, 3–7, 10, 11, l3–l6, 18–22, and 25 stand rejected under
35 U.S.C. § 103(a) as unpatentable over Eldering and Garcia-Luna-Aceves.
Claims 2, 8, 9, 12, 17, 23, and 24 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Eldering, Garcia-Luna-Aceves, and Gildea.
ISSUES
The issues of obviousness turn on whether the art describes a push
system that pushes advertisements from an ad content server to an
advertisement cache. The provisional rejection under obviousness type
double patenting is uncontested.
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FACTS PERTINENT TO THE ISSUES
The following enumerated Findings of Fact (FF) are believed to be
supported by a preponderance of the evidence.
Facts Related to Appellants’ Disclosure
01. The cache assignment agent 34 receives the signatures from the
local agents 40 and 50. Based on the signatures, the cache
assignment agent 34 determines whether advertisements for any of
the advertisement categories should be pushed from the RAM disk
26 of the ad content server 20 to the advertisement caches 38 and
48 at the remote headends 14 and 16, respectively. Any algorithm
for identifying which advertisement categories are to be pushed to
the advertisement caches 38 and 48 may be used. For example, if
an advertisement category is expected to be selected by more than
one of the late-binding systems 36-1 through 36-N1 over a defined
period of time such as an hour or a day, the cache assignment
agent 34 may identify the advertisement category as one for which
advertisements are to be pushed to the advertisement cache 38.
As another example, if an advertisement category has historically
been used frequently by the late-binding systems 36- 1 through
36-N1, then the cache assignment agent 34 may identify the
advertisement category as one for which advertisements are to be
pushed to the advertisement cache 38. Spec. para. 0022.
02. In operation, the late-binding ad insertion function 60 inserts
advertisements into advertisement slots in video content as the
video content is streamed to the client devices 42-1 through 42-N2.
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The video content may be movies, television programs, or the like
provided in a Video on Demand (VoD) fashion or broadcast
television content. More specifically, under the direct or indirect
control of the client device 42-1, for example, the late-binding ad
insertion function 60 obtains video content selected by the user or
viewer at the client device 42-1 and begins streaming the video
content to the client device 42-1. Upon detecting an upcoming ad
slot in the video content, the late-binding ad insertion function 60
selects one of the advertisement categories for the ad slot.
Spec. para. 0027.
Facts Related to the Prior Art
Eldering
03. Eldering is directed to targeted advertising in television
programming or other media delivery systems. Eldering 1:15-17.
04. Eldering describes how, for each channel containing different
television programming, a television service provider transmits
multiple versions of that channel in which the programming is
identical but the advertisements are different. This allows
television service providers to offer advertisers more targeted
advertising other than simply based on channel, time of day, and
programming. For instance, a single programming channel can be
duplicated four times at the head end of a television service
network to create four presentation channels. Different
advertisements can be inserted into each of the four presentation
channels with the different presentation channels delivered to
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different groups of subscribers. The subscriber groups may be
grouped by nodes of a cable television network with the provider
delivering the different presentation channels to different nodes.
Eldering 3:15-30.
05. Eldering describes how the schedule for inserting advertisements
into each of the presentation channels is achieved by using a
queue stored in memory. In FIG. 2, the queue is a stacked list of
advertisement identifiers, termed advertisement resource locators
(ARLs). At a minimum, the ARLs indicate the location of a
particular advertisement, which may be a memory address in a
large volume memory local to the head end of the system.
Alternately, the ARLs may point to a remote server on a network
to which the head end computer is coupled. For instance, the
advertisement may be stored at a remote location on the
advertisers server, to which the television service provider is
coupled via a network. Eldering 6:53-67.
06. Eldering describes how the queue comprises a stack of ARLs in
the order in which they are to be inserted into the corresponding
presentation channel. The “order” of the ARLs need not
necessarily correspond to the numerical addresses of the ARLs in
the queue. Any ordering algorithm may be used to retrieve ARLs
from the queue. The ARLs may include a time tag indicating the
time that the corresponding advertisement is to be inserted into the
presentation channel. Eldering 7:13-29.
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Garcia-Luna-Aceves
07. Garcia-Luna-Aceves is directed to using a mapping between client
addresses and addresses of caches to support content delivery.
Garcia-Luna-Aceves 1:46-49.
08. Garcia-Luna-Aceves describes how a request for an information
object is received from a client; and it is subsequently determined,
according to an information object repository selection procedure,
which of a number of information object repositories should
service the request for the information object. Such determination
is made without regard as to whether the information object is
actually stored at the information object repository selected
according to the selection procedure. The information object
repository selection procedure involves mapping an address of the
client to an address of the selected information object repository.
The mapping is made according to specified performance metrics,
which may be one or more of: average delay from the information
object repository to the client, average processing delays at the
information object repository, reliability of a path from the
information object repository to the client, available bandwidth in
said path, and loads on the information object repository. Garcia-
Luna-Aceves 11:40-55.
09. Garcia-Luna-Aceves describes how the address of the information
object repository is selected from a number of addresses of
information object repositories. Because the selection of the
information object repository is made without regard as to whether
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or not that information object repository actually contains a copy
of the requested information object, sometimes the selected
information object repository will need to be instructed to obtain a
copy of the information object. Determining which of the number
of information object repositories should service the request for
the information object may involve using a direct cache selection
process, a redirect cache selection process, a remote DNS cache
selection process, or a local DNS cache selection process. Garcia-
Luna-Aceves 11:56 – 12:3.
10. In the direct cache selection procedure, a Web server which
received the request from the client, contacts a Web router to
obtain an address of a topologically close information object
repository to the requesting client. In response, the Web server
receives from the Web router, an address for the topologically
close information object repository. The Web server then returns
a URL which contains the address of the topologically close
information object repository to the client. Garcia-Luna-Aceves
12:4-11.
11. In the redirect cache selection process, the Web server that
received the request from the client contacts a Web router to
obtain an address of a redirecting Web router that will service the
request. After obtaining this address, the Web server returns a
URL which contains the address of the redirecting Web router to
the client. The client subsequently contacts the redirecting Web
router at the address contained in the URL with the request for the
information object. The redirecting Web router then redirects the
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client (e.g., via an http redirect) to a topologically close
information object repository which will service the request for
the information object. Garcia-Luna-Aceves 12:12-22.
12. In the remote DNS cache selection process the Web server which
received the request from the client returns a statically configured
domain name of a redirector DNS server. The redirector DNS
server resolves this domain name to produce a resolved domain
name, which is provided to a Web router. In response, the Web
router returns an address of a topologically close information
object repository for the client, and the redirector DNS server then
provides the address of the topologically close information object
repository to the client. Garcia-Luna-Aceves 12:23-31.
13. In the local DNS cache selection process the Web server which
received the request from the client provides a URL containing a
statically configured domain name, and a local DNS server then
gives the statically configured domain name to a Web router. In
turn, the Web router provides an address of a topologically close
information object repository, which the DNS server, then
provides to the client. Garcia-Luna-Aceves 12:32-38.
14. Different combination may be used depending on the type of
content being requested. The direct cache selection process may
be used for information objects that will be immediately loaded
without user action, while any of the redirect cache selection
process, the remote DNS cache selection process and/or the local
DNS cache selection process may be used for information objects
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that will be loaded only after some user action. Garcia-Luna-
Aceves 12:39-47.
ANALYSIS
Claims 1, 11, and 16 rejected under the judicially created doctrine of
obviousness double patenting as claiming an obvious variant to the same
subject matter as another U.S. Patent
This provisional rejection is summarily affirmed as Appellant does not
contest it.
Claims 1, 3-7, 10, 11, l3-l6, 18-22, and 25 rejected under 35 U.S.C.
§ 103(a) as unpatentable over Eldering and Garcia-Luna-Aceves
Claims 2, 8, 9, 12, 17, 23, and 24 rejected under 35 U.S.C. § 103(a) as
unpatentable over Eldering, Garcia-Luna-Aceves, and Gildea
We are persuaded by the Appellant’s argument that Eldering fails to
teach or suggest a push system that pushes advertisements from an ad
content server to an advertisement cache. Reply Br. 4; App. Br. 11. As
Appellant contends, Eldering’s equivalent to the recited cache is in the
server, not the client. Examiner replies that (1) “‘push’ is interpreted as a
basis for selecting advertisements to be given priority for inclusion in the
cache.” Ans. 16.
Appellant responds that
the Patent Office misconstrues the meaning of the term “push,”
which is a well-known and commonly used term to describe
sending data to another device without the other device first
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requesting the data, and is used in this context throughout the
subject application.
The referenced text states “the cache assignment agent 34 may
identify the advertisement category as one for which
advertisements are to be pushed to the advertisement cache 38 .
. .” (paragraph 0122 of the subject application). Thus, the
referenced passage clearly states that the “advertisement
category” is what is used to determine which advertisement is
provided to the advertisement cache, and nowhere suggests that
“pushing” is related to “targeting.” In fact, the term “pushed” is
used in its ordinary and conventional context: the advertisement
is sent to the advertisement cache without being requested by
the advertisement cache.
Reply Br. 4-5. We agree with the Appellant’s proffered definition of “push”
in this context. The Examiner conflates the basis for selection with the
action taken as a result of the selection by defining the “push” action to be
the basis for that action.
The Examiner appears to find that Eldering describes the ad content
server and assignment of ad category of claim 1 limitations (a) and (c)(i),
and that Garcia-Luna-Aceves shows it was known to rely on a local cache
for finding ads of claim 1 limitation (b). We agree with these findings.
The missing piece is limitation (c)(ii) that pushes an ad from the server
to the local cache. Garcia-Luna-Aceves shows it might be the case that the
ad would happen to be in a local cache, but does not describe how the ad
would have gotten there. Eldering offers no reason for pushing the ad to the
cache of Garcia-Luna-Aceves. Thus, the Examiner had not made a finding
as to claim 1 limitation (c)(ii) and, therefore, has not presented a prima facie
case.
Independent claims 11 and 16 have similar limitations.
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CONCLUSIONS OF LAW
The rejection of claims 1, 11, and 16 under the judicially created
doctrine of obviousness double patenting as claiming an obvious variant to
the same subject matter as another U.S. Patent is proper.
The rejection of claims 1, 3-7, 10, 11, l3–l6, 18–22, and 25 under
35 U.S.C. § 103(a) as unpatentable over Eldering and Garcia-Luna-Aceves
is improper.
The rejection of claims 2, 8, 9, 12, 17, 23, and 24 under 35 U.S.C.
§ 103(a) as unpatentable over Eldering, Garcia-Luna-Aceves, and Gildea is
improper.
DECISION
The provisional rejection of claims 1, 11, and 16 is affirmed.
The rejections of claims 1–25 are 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). See 37 C.F.R.
§ 1.136(a)(1)(iv) (2011).

AFFIRMED-IN-PART

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