Ex Parte Gravino et al

Patent Trial and Appeal Board

Feb 28, 2017

12941385 (P.T.A.B. Feb. 28, 2017)

United States Patent and Trademark Office
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
12/941,385 11/08/2010 Douglas David Gravino 33020-RA51 9621
124538 7590 03/02/2017
Cox Communications, Inc.
c/o Next IP Law Group LLP
Two Ravinia
Suite 500
Atlanta, GA 30346
EXAMINER
SYED, NABIL H
ART UNIT PAPER NUMBER
2683
NOTIFICATION DATE DELIVERY MODE
03/02/2017 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):
bgunter @ nextiplaw. com
bbalser @ nextiplaw. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DOUGLAS DAVID GRAVINO, GOPINATH
RADHAKRISHNAN, and MICHAEL L. POFFENBERGER
Appeal 2016-005170
Application 12/941,385
Technology Center 2600
Before JOHN A. JEFFERY, THU A. DANG, and ALEX S. YAP,
Administrative Patent Judges.
DANG, Administrative Patent Judge.
DECISION ON APPEAL
I. STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 1—20, which constitute all the claims pending in
this application. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part.
A. INVENTION
According to Appellants, in the claimed invention, “when a specific
user of one or more electronic devices or systems moved into the physical
Appeal 2016-005170
Application 12/941,385
presence of the one or more devices or systems, automatic detection or
determination of the user's presence may be used to apply setup or settings
changes to the one or more devices or systems” (Spec. 1 5).
REPRESENTATIVE CLAIM
Claim 1 is exemplary:
1. A method of automating setup changes to a set-top box based
on user presences information, comprising:
receiving presence information, for a specific user, from the set-top
box in a facility, the presence information indicating the user is in a
physical proximity of the facility;
passing the presence information for the user of the set-top box
through a presence server to a cable television services provider to
indicate the user is in a physical proximity of the facility;
in response to receiving the presence information for the user of the
set-top box at the cable television services provider, providing only
television channels of interest from the cable television services
provider through the set-top box to the user;
communicating the presence information to a second device or system
without passing the presence information through the presence server;
and
updating operational settings or setup data on the second device or
system.
C. REJECTIONS
Claims 1—8, 11, 12, 15, and 18—20 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over the teachings of Takahashi et al. (US
7,564,346 B2; iss. July 21, 2009), Colsey et al. (US 2010/0103316 Al; pub.
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Application 12/941,385
Apr. 29, 2010), Chai et al. (US 2012/0060176 Al; pub. Mar. 08, 2012), and
Belz et al. (US 2009/0125971 Al; pub. May 14, 2009).
Claims 9 and 10 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over the teachings of Takahashi, Colsey, Chai, Belz and
Jameson (US 2012/0182145 Al; pub. July 19, 2012).
Claims 13, 14, 16 and 17 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over the teachings of Takahashi, Colsey, Chai, Belz, and Bae et
al. (US 2010/0156608 Al; pub. June 24, 2010).
II. ISSUES
The principal issues before us are whether the Examiner erred in
finding that the combination of Chai and Belz teaches or suggests “passing
the presence information for the user of the set-top box through a presence
server to a cable television services provider to indicate the user is in a
physical proximity of the facility;” and “communicating the presence
information to a second device or system without passing the presence
information through the presence server” (claim 1).
III. FINDINGS OF FACT
The following Findings of Fact (FF) are shown by a preponderance of
the evidence.
Chai
1. Chai discloses smart media selection (Abst.), wherein Figure 2 is
reproduced below:
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Appeal 2016-005170
Application 12/941,385
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FIG. 2
Figure 2 shows a headend system 202 which includes backend servers 208
coupled to application servers 206 and input/output device 210, wherein the
backend servers 208 provide the data, received from the receiver system
108, to the application servers 206 (125). The headend system 202 is
coupled to content sources 212 and application sources 214 via a network
216, wherein the content source may be a provider of entertainment content
(| 26). The user identity module 220 receives presence information (via
communication module 218) from the receiver system 108, and then
performs analysis on the presence information to identify the user triggering
the presence change (131).
Belz
2. Belz discloses controlling access to media content (Abst.), wherein
Figure 1 is reproduced below:
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Application 12/941,385
FIG, I
Figure 1 shows a particular set-top box device 104 at the user premises 102
which can act as a master set-top box device, and can determine relative
proximities of one or more wireless devices 112 to itself and to slave set set­
top box devices, such as the second set-top box device 108 (124). The
master set-top box device can communicate instructions to fulfill or deny
viewing requests to slave set-top box devices based on its determinations of
presence and relative proximity of wireless devices. Id.
IV. ANALYSIS
Appellants contend that the cited references “taken individually and in
combination, fail to disclose communicating the presence information to a
second device or system without passing the presence information through
the presence server” (App. Br. 6). In particular, Appellants contend “the
system of Belz does not pass the presence information to a second device in
Belz without passing the presence information through the presence server
(set-top box) of Belz” (id.).
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Application 12/941,385
We have considered all of Appellants’ arguments and evidence
presented. However, we disagree with Appellants’ contentions regarding the
Examiner’s rejections of the claims. We agree with the Examiner’s findings,
and find no error with the Examiner’s conclusion that the claims would have
been obvious over the combined teachings.
The test for obviousness is what the combined teachings would have
suggested to one of ordinary skill in the art. See In re Merck & Co., Inc.,
800 F.2d 1091, 1097 (Fed. Cir. 1986). Based on the record before us, we are
unpersuaded the Examiner erred in finding the combination of Chai and Belz
teaches or at least suggests the contested limitation.
We agree with the Examiner’s finding that Chai discloses “via source
system 102 receiving presence information from receiver system 108
through backend servers 208 (presence server)” wherein “in response to
receiving the presence information the source system (cable services
provider) checks the profile of the identified user and provides the channels
based on user’s profile” (Final Act. 5; FF 1). Thus, we find no error with the
Examiner’s reliance on Chai for teaching and suggesting “passing the
presence information for the user of the set-top box through a presence
server to a cable television services provider to indicate the user is in a
physical proximity of the facility” as recited in claim 1.
We also agree with the Examiner’s finding that Belz discloses
“communicating presence information to a second device or system (slave
set-top box devices) without passing the presence information through the
presence server” because “the set-top box does not transmit signal to a
source system through backend server as disclosed in Chai to provide only
television channels of interest from the cable providers” (Final Act. 6; FF 2).
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Accordingly, we agree with the Examiner, and find that combining
Chai’s teaching of passing presence information from a set-top box through
a back server to a cable television service provider (FF 1) with Belz’s
teaching of communicating presence information to a second device without
passing the presence information through a backend server (FF 2), to an
ordinarily skilled artisan, is simply a combination of familiar prior art
practices or acts (as taught or suggested by the cited combination of
references) that would have realized a predictable result. The skilled artisan
is “a person of ordinary creativity, not an automaton.” KSR Int’l Co. v.
Teleflex, Inc., 550 U.S. 398, 420-21 (2007).
Although Appellants contend “the system of Belz does not pass the
presence information to a second device in Belz without passing the
presence information through the presence server (set-top box) of Belz”
(App. Br. 6), as the Examiner points out, “[t]he set-top box in the reference
of Belz functions as a set-top box” as in Chai, and not as a “backend server
(presence server).” Ans. 5. That is, Belz’s “set-top box is not used as the
presence server as argued by the appellant..., because presence server is
used to relay the presence information from set-top box to the cable
television service provider” in Chai. Id.
Thus, we are unpersuaded by Appellants’ argument that “in the
system of Belz the set-top box acts as the presence server . . . that controls
all of the presence information.” Reply Br. 3. Instead, we find no error with
the Examiner’s reliance on the combination of Chai and Belz for teaching
and suggesting passing the presence information through a presence server
(backend server) to a cable television services provider (Chai), and then
communicating the presence information to a second device or system
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Application 12/941,385
without passing the presence information through the presence/backend
server (Belz), as required by claim 1. Ans. 5.
Based on this record, we find no error in the Examiner’s rejection of
independent claim 1, and claims 2—8, 11, and 12, depending therefrom but
not separately argued (App. Br. 6), over Takahashi, Colsey, Chai, and Belz.
As for claims 13 and 14, Appellants merely contend Bae does not
“make up for the deficiencies of Takahashi, Colsey, Chai, and Belz. Id. For
the reasons set forth above, we also affirm the rejection of claims 13 and 14
over Takahashi, Colsey, Chai, and Belz, in further view of Bae.
As for independent claims 15 and 19, Appellants merely repeat the
argument that “Belz does not pass the presence information to a second
device without passing the presence information through the presence server
(set-top box) of Belz” (App. Br. 7—11). However, as discussed above, we
find no error with the Examiner’s finding that the combined references teach
and suggest the contested limitations. On this record, we also affirm the
rejection of claims 15 and 19, and claims 18 and 20 depending therefrom
over Takahashi, Colsey, Chai, and Belz; and the rejection of depending
claims 16 and 17 over Takahashi, Colsey, Chai, and Belz, in further view of
Bae.
Although the Examiner rejects claims 9 and 10 over Takahashi,
Colsey, Chai, Belz, and Jameson, we note that Jameson’s filing date is
January 18, 2011, which is after the November 8, 2010 of the present
application. Accordingly, Jameson is not prior art. On this record, we are
constrained to reverse the rejection of claims 9 and 10 over Takahashi,
Colsey, Chai, and Belz, in further view of Jameson.
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V. CONCLUSION AND DECISION
We affirm the Examiner’s rejections of claims 1—8, and 11—20 under
35 U.S.C. § 103(a), but reverse the Examiner’s rejection of claims 9 and 10
under 35 U.S.C. § 103(a).
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).
AFFIRMED-IN-PART
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