Ex Parte Hayes

Patent Trial and Appeal Board

Dec 31, 2014

12566343 (P.T.A.B. Dec. 31, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte THOMAS J. HAYES
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Appeal 2012-008068
Application 12/566,3431
Technology Center 2100
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Before CARLA M. KRIVAK, JEFFREY S. SMITH, and
KEVIN C. TROCK, Administrative Patent Judges.

TROCK, Administrative Patent Judge.

DECISION ON APPEAL
Introduction
Appellant appeals under 35 U.S.C. § 134(a) from the Final Rejection
of claims 2–8, 10, 12–15, 17–19, and 21–27. Claims 1, 9, 11, 16, and 20 are
cancelled. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 Appellant indicates the real parties in interest are Codentity LLC and
Marybeth Zindrick. App. Br. 2.

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Invention
The claimed invention is directed to a system and method for creating
and storing a user’s hit-music preference list. Abstract.

Exemplary Claim
Claim 23, illustrative of the claims on appeal, is reproduced below
with key limitations emphasized.
23. A method for creating a music preference list for a
user comprising the steps of:
receiving a date of birth from the user;
calculating with a processor a primary exposure window
based on the date of birth and a predetermined stored time
frame of the user's life when the user was likely exposed to and
developed an affinity for popular music, the primary exposure
window having a beginning year and an end year;
storing the primary exposure window as a first
customized query type on a computer memory;
applying the primary exposure window as part of a
customized query against at least one music database having a
plurality of records, each record being associated with a
respective piece of music and including a year of release; and
retrieving a plurality of music records having years of
release which fall within the primary exposure window.

Applied Prior Art
The Examiner relies on the following prior art in rejecting the claims.
Suzuki US 7,247,786 B2 July 24, 2007

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Rejections
Claims 2–8, 10, 12–15, 17–19, and 21–27 stand rejected under
35 U.S.C. § 103(a) as being unpatentable over Suzuki.

ISSUE
Appellant’s contentions present us with the following issue:
Did the Examiner err in rejecting the claims because Suzuki does not
teach or suggest “a primary exposure window based on the date of birth and
a predetermined stored time frame of the user's life when the user was likely
exposed to and developed an affinity for popular music, the primary
exposure window having a beginning year and an end year” as recited in
claim 23?
ANALYSIS
The Examiner finds Suzuki teaches or suggests the claimed method
for creating a music preference list as recited in independent claim 23. Ans.
4–5. The Examiner cites to various portions of Suzuki, including Fig. 5, as
support for the finding. Id.
Appellant contends the Examiner erred in rejecting the claims as
being obvious over Suzuki because Suzuki does not teach or make obvious
the “Primary Exposure Window” recited in independent claims 23, 24, and
26. App. Br. 9. In particular, Appellant argues Suzuki teaches a method of
classifying music according to “sensibility words” and does not show or
suggest comparing a song release date against a date range or even describe
when musical tastes are formed. App. Br. 9–11. Moreover, Appellant
argues, the tables shown in Fig. 5 of Suzuki are not tables of songs that
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Application 12/566,343

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appeal to a particular age group but are tables of song characteristics. App.
Br. 10.
We have considered these and all other Appellant’s arguments but
they are not persuasive of Examiner error. The Examiner finds, and we
agree, Suzuki teaches or suggests using age groups, having beginning and
ending years, along with song characteristics to select and present to a user,
appropriate songs. Ans. 4–5, 9. In particular, Suzuki teaches or suggests a
song selection apparatus using age, gender, song characteristics (e.g., song
construction, mood or style) and song data such as song name, singer name
and other song information (e.g., song release date) to select songs for a
user’s consideration. Suzuki, col. 1, ll. 29–63; col 2, ll. 52–53; col. 3, ll. 1–
31 (emphasis added). Suzuki explains, “ages are divided into the five
groups of teenagers, 20's, 30's, 40's, and 50 and older; but other way of
grouping the ages is also acceptable.” Suzuki, col. 8, ll. 1–3 (emphasis
added). Suzuki further explains, “songs are selected from all of the songs
stored in the data storage device 3, but the songs from which song selection
is performed may differ according to the user's age.” Suzuki, col. 8, ll. 30–
33 (emphasis added); see also Ans. 9.
Appellant also argues, with regard to dependent claims 2 and 10,
Suzuki does not teach anything about music genres, but instead relates to
“sensibility words.” App. Br. 11. However, Appellant’s own Specification
explains music genres are style categories and searching music databases by
musical genres, styles, and types was already well known in the art. See
Spec. paras. 4–5, 11, 16, and 21.
Appellant similarly argues with regard to dependent claims 7 and 21,
Suzuki Fig. 4 cited by the Examiner does not show removable memory or
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transportable media as recited in those claims. App. Br. 12–13. Appellant’s
Specification, however, discusses available removable memory and portable
media devices such as a “hardware-based digital media player (like the
Apple iPod®) or some type of compact portable media (such as SD Card,
SmartCard, Memory Stick, CompactFlash® or USB Flash "thumb" media).”
Spec. para. 72. Accordingly, these and other similar arguments made by
Appellant are not persuasive of Examiner error.

CONCLUSION
For the reasons stated above, we conclude the Examiner did not err in
finding Suzuki teaches or suggests the limitations of claim 23 discussed
above. Accordingly, we sustain the rejection under 35 U.S.C. § 103(a) of
independent claim 23, along with independent claims 24 and 26 which have
similar limitations, and their dependent claims 2–8, 10, 12–15, 1719, 21,
22, 25, and 27.

DECISION
We AFFIRM the Examiner’s rejection of claims 2–8, 10, 12–15, 17–
19, and 21–27.
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).

AFFIRMED

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