Ex Parte Faihe

Patent Trial and Appeal Board

Mar 26, 2013

10262383 (P.T.A.B. Mar. 26, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte YASSINE FAIHE
____________

Appeal 2010-008540
Application 10/262,383
Technology Center 2400
____________

Before DENISE M. POTHIER, JEREMY J. CURCURI,
and DAVID C. McKONE, Administrative Patent Judges.

McKONE, Administrative Patent Judge.

DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from a Final Rejection of
claims 1-3, 5, 7-10, 12, and 13, which constitute all the claims pending in
this application. See App. Br. 4.1 Claims 4, 6, and 11 are cancelled. We
have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

1 Throughout this opinion, we refer to the Appeal Brief filed December 28,
2009 (“App. Br.”), the Examiner’s Answer mailed March 25, 2010 (“Ans.”),
and the Reply Brief filed May 25, 2010 (“Reply Br.”).
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THE INVENTION
Appellant’s invention relates to suggesting television programming
based on a viewer’s usage of an electronic program guide (“EPG”). See
Spec. 1:2-4. Claim 1, which is illustrative of the invention, reads as follows:
1. A method of television program suggestion
comprising the acts of:
activating a context-based program suggestion
function;
in response to the activating act, accessing a
profile of a viewer and an electronic program guide
(EPG) by a suggestion engine, outputting by the
suggestion engine a signal containing program
suggestions, and displaying the program suggestions on a
display, the program suggestions being for television
programs included in the EPG based on the profile and a
current location of the viewer in the EPG, and
updating the program suggestions and displaying
the updated program suggestions on the display
whenever the current location in the EPG changes.

THE REJECTIONS
Claims 1-3, 5, 7, and 12 stand rejected under 35 U.S.C. § 102(b) as
being anticipated by Alexander (US 6,177,931 B1; issued Jan. 23, 2001).
See Ans. 3-6.
Claims 8-10 and 13 stand rejected under 35 U.S.C. § 102(e) as being
anticipated by Knowles (US 2003/0079227 A1; published Apr. 24, 2003;
filed July 29, 1999) with Alexander incorporated by reference. See Ans.
7-9.

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ANALYSIS
REJECTION OF CLAIMS 1-3, 5, 7, AND 12 UNDER 35 U.S.C. § 102(b)
Claims 1-3, 5, and 7
Like Appellant’s Specification, Alexander describes an improved
EPG for navigating cable television programming. See Alexander, Abstract.
One of the features of Alexander is the ability to present “on-screen
notifications” such as advertisements to the viewer in a picture-in-picture
(“PIP”) display. Alexander, col. 14, l. 48–col. 15, l. 22; col. 20, ll. 39-49.
These advertisements can include “show information” associated with an
advertised show, which the viewer then use a remote control to tune to.
Alexander, col. 21, ll. 16-25, 39-44; Fig. 10B. Alexander also discloses
keeping a “viewer profile” that tracks information about the viewer,
including information about the user’s interaction with the EPG, the Internet,
and other sources of information, which can be analyzed by the EPG. See
Alexander, col. 29, ll. 14-30. The information in the viewer profile can be
used in conjunction with an identification of the content the viewer currently
highlights in the EPG to generate and display advertisements. See
Alexander, col. 33, l. 66–col. 34, l. 9. In this mode of operation, “the EPG
displays different advertisements depending upon, e.g., which show the
viewer has currently highlighted in the Grid Guide, what sport is highlighted
in a sports data service, or what type of news is highlighted in a news service
(international, local, etc.).” Alexander, col. 34, ll. 4-9. The Examiner finds
in these teachings a disclosure of claim 1. See Ans. 3-4.
Appellant assigns several instances of error to the Examiner’s
findings, none of which we consider persuasive. First, Appellant argues that
Alexander discloses that its viewer profile information includes an
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identification of the content the viewer has currently highlighted; thus,
Alexander’s suggestion engine accesses only the viewer profile and not the
EPG. See App. Br. 12-14. According to Alexander, however, the “viewer
profile information” can be “sent to a computer at the head end of television
distribution for analysis, or in the alternative, can be analyzed by the EPG.”
Alexander, col. 29, ll. 14-21 (emphasis added). Indeed, Alexander explains
that it is the EPG that collects viewer profile information. See Alexander,
col. 28, ll. 11-67. Thus, the viewer profile information can be part of the
EPG. In this case, when Alexander’s suggestion engine2 accesses the viewer
profile, it is accessing the EPG. We agree with the Examiner’s finding (Ans.
3-4) that Alexander discloses “accessing a profile of a viewer and an
electronic program guide (EPG) by a suggestion engine” (emphasis added).
In reply, Appellant also argues that Alexander does not disclose using
the EPG and viewer profile to provide suggestions based on the “current
location of the viewer in the EPG.” Reply Br. 2-3. This argument is also
unpersuasive, as Alexander clearly discloses displaying advertisements
based on the content currently selected by the viewer, i.e., the current
location of the viewer in the EPG. See Alexander, col. 34, ll. 2-9.
Appellant further contends that Alexander does not disclose
“accessing the viewer profile and the EPG by a suggestion engine, in
response to activating a context-based program suggestion function.” App.

2 Although we do not understand Appellant to be challenging the Examiner’s
finding that Alexander discloses a “suggestion engine,” see App. Br. 13-14,
we nevertheless agree with the Examiner’s finding (Ans. 10) that Alexander
inherently discloses an engine to “determine, analyze, and/or tailor based on
the EPG and viewer’s profile to provide the program suggestions for future
broadcasting,” i.e., a suggestion engine.
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Br. 15. However, Appellant does not provide any argument explaining this
contention. Thus, Appellant’s contention is insufficient to raise separate
grounds of error. See In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011)
(The Federal Circuit has held that “the Board reasonably interpreted [37
C.F.R. § 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.”).
Appellant belatedly expands on this contention in the Reply Brief,
arguing that the “accessing a profile,” “outputting . . . a signal,” and
“displaying the program suggestions,” recited in claim 1, do not occur “in
response to the activating act” in Alexander. See Reply Br. 3-4. These
arguments have been waived. See, e.g., Ex parte Borden, 93 USPQ2d 1473,
1474 (BPAI 2010) (informative) (“[T]he reply brief [is not] an opportunity
to make arguments that could have been made in the principal brief on
appeal to rebut the Examiner’s rejections, but were not.”). Nevertheless,
these arguments are unpersuasive. As the Examiner explains, Alexander’s
on-screen notification function must be activated in order for it to work. See
Ans. 11. Thus, Alexander’s suggestion engine would not “access,” “output,”
or “display” unless the suggestion function was not first activated.
Finally, Appellant contends that Alexander does not disclose
“updating the program suggestions and displaying the updated program
suggestions on the display whenever the current location in the EPG
changes,” as recited in claim 1. App. Br. 15 (emphasis Appellant’s).
Instead, Appellant argues, Alexander only discloses updating the viewer
profile when the current location in the EPG changes. See id. However,
Alexander explicitly discloses that “the EPG displays different
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advertisements depending upon, e.g., which show the viewer has currently
highlighted in the Grid Guide . . . .” Alexander, col. 34, ll. 4-6. The most
logical reading of this disclosure is that it is a dynamic process, where the
advertisements change as the show highlighted changes. Thus, we are not
persuaded by Appellant’s argument.
In sum, Appellant has not shown error in the Examiner’s rejection of
claim 1. Appellant only nominally argues claims 2, 3, 5, and 7 separately.
Accordingly, we sustain the rejection of claim 1 and claims 2, 3, 5, and 7,
which depend on claim 1.

Claim 12
Claim 12 depends on claim 1 and further recites that information from
the EPG is displayed in a first PIP window, information about the program
suggestions is displayed in a second PIP window, and that “the first picture-
in-picture window does not contact the second picture-in-picture window.”
The Examiner identifies Alexander’s grid guide 22 (shown in Figure 1) as
the “first picture-in-picture window” and advertisement window 16 as the
“second picture-in-picture window.” See Ans. 6.
Appellant first argues that Alexander’s “large detailed information
area” labeled 24 contacts the advertisement windows 14 and 16. See App.
Br. 17-18. This is inapposite, since the Examiner finds that grid guide 22,
not information area 24, is the first PIP window. See Ans. 6. Appellant then
argues that grid guide 22 and advertisement window 16 do contact each
other. See App. Br. 18. The Examiner responds that Figure 1 of Alexander
shows a gap between grid guide 22 and advertisement window 16. See Ans.
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12-13. Appellant has not persuaded us that the Examiner erred in this
finding.
In reply, Appellant belatedly argues that neither grid guide 22 nor
advertisement window displays “information about the program
suggestions,” as recited in claim 12. See Reply Br. 5-6. First, because this
argument was not raised until the Reply Brief, it is waived. See Borden, 93
USPQ2d at 1474. Second, it is unpersuasive. As the Examiner finds,
Alexander discloses that the advertisement window 16 can be used to
suggest programs. See Ans. 12. Indeed, Alexander explains that “if a Panel
ad is highlighted, has show information associated with it, and the advertised
show is currently on, the user may tune directly to the related program . . . .”
Alexander, col. 21, ll. 39-44. In this example, a “Panel ad,” i.e., ad window
14 or 16 (see Alexander, Fig. 1), includes “show information,” i.e.,
information about a program suggestion. Thus, we agree with the
Examiner’s finding that Alexander discloses the additional limitations of
claim 12. See Ans. 6.
Accordingly, we sustain the rejection of claim 12.

REJECTION OF CLAIMS 8-10 AND 13 UNDER 35 U.S.C. § 102(e)
While the rejection of independent claim 8 is based on Knowles with
Alexander incorporated by reference, Appellant’s challenge to the rejection
is directed to alleged deficiencies in Alexander’s disclosure. See App. Br.
18-23. Specifically, Appellant presents substantially the same arguments for
claim 8 as presented for claim 1. See id. Likewise, Appellant presents
substantially the same arguments for claim 13 as presented for claim 12. See
App. Br. 23-26. Appellant only nominally argues claims 9 and 10
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separately. See App. Br. 23. Accordingly, we sustain the rejection of claims
8-10 and 13 for the same reasons as given above for claims 1 and 12.

ORDER
The decision of the Examiner to reject claims 1-3, 5, 7-10, 12, and 13
is affirmed.
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). See 37 C.F.R.
§ 1.136(a)(1)(iv) (2010).

AFFIRMED

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