10980135 (P.T.A.B. Dec. 3, 2013)

Ex Parte Haberman et al

Patent Trial and Appeal BoardDec 3, 2013

10980135 (P.T.A.B. Dec. 3, 2013)

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. 10/980,135 11/01/2004 William E. Haberman 1020.009 6079 36790 7590 12/04/2013 TILLMAN WRIGHT, PLLC PO BOX 49309 CHARLOTTE, NC 28277-0076 EXAMINER AJAYI, JOEL ART UNIT PAPER NUMBER 2646 MAIL DATE DELIVERY MODE 12/04/2013 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte WILLIAM E. HABERMAN, JOHN V. IVSAN, CHAD D. TILLMAN, and BRIAN D. MACDONALD ____________ Appeal 2011-005386 Application 10/980,135 Technology Center 2600 ____________ Before JOSEPH L. DIXON, JAMES R. HUGHES, and ERIC S. FRAHM, Administrative Patent Judges. DIXON, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-005386 Application 10/980,135 2 STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134(a) from a rejection of claims 1-3 and 21-36. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. INVENTION The invention is directed to broadcasting informational content to a mobile device (See generally Spec. 2:20-3:18). Claim 2, reproduced below, is representative of the claimed subject matter: 2. A method of receiving and storing within a mobile device certain broadcasts to the exclusion of other broadcasts, the method comprising the steps of: (a) storing a preferences profile at the mobile device, the preferences profile representing the types of informational content with which a person using the mobile device desires to be presented; (b) listening for and receiving at the mobile device blind transmissions each including an unsolicited broadcast, wherein (i) each blind transmission is transmitted by a transmitter without regard to (A) whether any mobile communications device is within the transmission range of the transmitter, (B) whether any mobile communications device has been detected within the transmission range of the transmitter, and (C) whether any communication has been received from any mobile communications device, and (ii) each unsolicited broadcast comprises both Appeal 2011-005386 Application 10/980,135 3 (A) informational content for presentation to a person, and (B) broadcast-identifying information; and (c) for each respective unsolicited broadcast that is received at the mobile device, (i) determining at the mobile device whether the informational content of the unsolicited broadcast is an update for informational content currently stored within the mobile device by comparing the broadcast-identifying information of the unsolicited broadcast with broadcast-identifying information of previously received broadcasts for which informational content is currently being stored within the mobile device, (ii) determining at the mobile device whether the informational content of the unsolicited broadcast is of a type of informational content with which a person using the mobile device desires to be presented by screening the broadcast against said stored preferences profile, and (iii) storing within the mobile device the informational content of the received unsolicited broadcast in replacement of informational content currently stored within the mobile device, (A) if it is determined that the informational content of the unsolicited broadcast is an update for informational content currently being stored within the mobile device, and (B) if it is determined that the informational content of the unsolicited broadcast is of a type of informational content with which a person using the mobile device desires to be presented. Appeal 2011-005386 Application 10/980,135 4 REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Ghirnikar Aaltonen Shteyn Phillips Dennis US 6,381,241 B1 US 2002/0138560 A1 US 2002/0144007 US 2004/0152493 A1 US 2004/0180683 A1 Apr. 30, 2002 Sept. 26, 2002 Oct. 3, 2002 Aug. 5, 2004 Sept. 16, 2004 REJECTIONS Claims 1-3, 21-23, 30, and 31 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Aaltonen and Ghirnikar. Claims 24 and 27-29 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Aaltonen, Ghirnikar, and Phillips. Claims 25 and 26 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Aaltonen, Ghirnikar, Phillips, and Dennis. Claims 32-36 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Aaltonen, Ghirnikar, and Shteyn. ANALYSIS Claims 1-3 Appellants, taking independent claim 2 as representative, contend that Aaltonen fails to disclose receiving blind transmissions, wherein (i) each blind transmission is transmitted by a transmitter without regard to (A) whether any mobile communications device is within the transmission range of the Appeal 2011-005386 Application 10/980,135 5 transmitter, (B) whether any mobile communications device has been detected within the transmission range of the transmitter, and (C) whether any communication has been received from any mobile communications device, as recited in claim 2 (Br. 15-16). We disagree with Appellants. Aaltonen discloses: “The broadcast of the Internet data is preferably unsolicited and may be directed towards all mobile terminals. . . . By being unsolicited data, the user does not have to actively do anything to receive the data, as any unsolicited data is received automatically.” (Aaltonen, ¶¶ [0028]-[0029]). Appellants have not shown, and we have not found that Aaltonen’s Internet data broadcaster determines whether any mobile devices are in range of the transmitter, have been detected by the transmitter, or have received any communications at the transmitter from any mobile devices when broadcasting unsolicited data. Appellants argue that Aaltonen’s transmissions “directed towards all mobile terminals” cannot be considered blind transmissions as claimed (Br.16). However, the fact a transmission is directed at all mobile terminals does not necessarily mean that any mobile terminal is in range or detected to be in range. As stated above, Aaltonen is silent on performing any detection of mobile terminals before broadcasting data. Thus, in the context of Aaltonen’s disclosure, a broadcast “directed towards all mobile terminals” (Aaltonen, ¶ [0028]) means a broadcast intended for receipt by all mobile terminals, but without any assurance that any mobile terminal will actually receive the communication. Further, Aaltonen explicitly states that the broadcasts are “unsolicited,” which shows that the transmitter need not receive a communication from any mobile Appeal 2011-005386 Application 10/980,135 6 terminal prior to transmission. Accordingly, we agree with the Examiner (Ans. 19) that Aaltonen discloses blind transmissions as recited in claim 2. We are therefore not persuaded that the Examiner erred in rejecting claim 2, and claims 1, 3, 22, and 24-36 not specifically argued separately. Claims 21 and 23 Appellants contend that Aaltonen fails to disclose “the broadcast- identifying information of an unsolicited broadcast comprises a broadcaster identification, and wherein the preferences profile includes a broadcaster identification by which the unsolicited broadcasts is screened,” as recited in claim 21 (Br. 17-18). We disagree with Appellants. We find that the recitation of “a broadcaster identification, and wherein the preferences profile includes a broadcaster identification by which the unsolicited broadcasts is screened,” is non-functional descriptive material. See Ex parte Nehls, 88 USPQ2d 1883, 1888 (BPAI 2008) (“Precedential”) (“The specific SEQ ID NOs recited in the claims do not affect how the method of the prior art is performed—the method is carried out the same way regardless of which specific sequences are included in the database.”). Claim 21 does not recite performing the screening function any differently depending on whether the broadcast information is screened based on content type or broadcaster identification, and is therefore not due patentable weight. Even if we were to give patentable weight to the “broadcaster identification” limitation in claim 21, we agree with the Examiner (Ans. 14, 19) and find that Aaltonen discloses that the unsolicited information includes “a broadcaster identification” because Aaltonen discloses “[t]he Internet data Appeal 2011-005386 Application 10/980,135 7 broadcast may be a summary of the Internet site, or even a site map of the Internet site with links allowing each section of the Internet site to [be] accessed directly” (Aaltonen, ¶ [0027]). In other words, by broadcasting an Internet site link the broadcast information includes the identity of the broadcaster. Further, Aaltonen generally discloses “the mobile terminal will therefore filter out any unsolicited information which does not conform to the user preferences.” For example, Aaltonen discloses that a user can filter out broadcast information based on subject matter (Aaltonen, ¶ [0030]). Given Aaltonen’s disclosure that the user may know the identity of the Internet site—i.e., the “broadcaster”—and Aaltonen’s general disclosure of filtering broadcast information based of “any unsolicited information which does not conform to the user preferences,” it would have been obvious to one of ordinary skill in the art to also filter broadcast information based on broadcaster identification as part of the user preferences. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007) (“[When a patent claims a structure already known in the prior art that is altered by the mere substitution of one element for another known in the field, the combination must do more than yield a predictable result.”). Claim 23 recites a similar limitation to claim 21, namely, “a transmitting party identification that represents the party of a transmitter by which the unsolicited broadcast is transmitted, and wherein the preferences profile includes a transmitting party identification by which the unsolicited broadcast is screened.” For similar reasons to those stated above regarding claim 21, we find that claim 23 also recites non-functional descriptive material that is not due patentable weight. And, similar to claim 21, even if we were to give the limitations of claim 23 patentable weight, it would have Appeal 2011-005386 Application 10/980,135 8 been obvious, based on the principles elaborated upon in KSR, 550 U.S. at 416, to filter Aaltonen’s broadcast information based upon a transmitting party identification in the user preferences. We are therefore not persuaded that the Examiner erred in rejecting claims 21 and 23. CONCLUSION The Examiner did not err in rejecting claims 1-3 and 21-36 under 35 U.S.C. § 103(a). DECISION The Examiner’s decision rejecting claims 1-3 and 21-26 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)(iv). See 37 C.F.R. § 41.50(f). AFFIRMED ELD