Ex Parte Hindle

Patent Trial and Appeal Board

Jul 15, 2014

12035868 (P.T.A.B. Jul. 15, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte JAMES MATTHEW HINDLE
____________________

Appeal 2012-003332
Application 12/035,868
Technology Center 2400
____________________

Before FRED E. McKELVEY, HUNG H. BUI, and WILLIAM M. FINK
Administrative Patent Judges.

FINK, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 seeks our review under 35 U.S.C. § 134(a) of the
Examiner’s final rejection of claims 1-20. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM-IN-PART.2

1 The real party in interest is TVWORKS, LLC., which is a subsidiary of
Comcast Cable.
2 Our decision refers to Appellant’s Appeal Brief filed June 10, 2011 (“App.
Br.”); Reply Brief filed October 28, 2011 (“Reply Br.”); Examiner’s Answer
mailed September 14, 2011 (“Ans.”); Final Office Action mailed January 20,
2011 (“Final Rej.”); and the original Specification filed February 22, 2008
(“Spec.”).
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STATEMENT OF THE CASE
Appellant’s Invention
Appellant’s invention relates to a method and system displaying
information about a television program using an electronic program guide,
such as the electronic program guide provided by a cable or satellite
television provider. See Spec. ¶¶ 1-2. Specifically, Appellant’s application
claims a method and system whereby an electronic program guide’s default
metadata (e.g., default program descriptions) can be replaced with
customized metadata (e.g., modified program descriptions) input by a user.
See id. ¶ 13 and Abstract.
Claims on Appeal
Claims 1, 12, 17, and 18 are the independent claims on appeal. Claim
1 is illustrative of Appellant’s invention and is reproduced below with
disputed limitations emphasized:
1. A method comprising:
receiving a program and default metadata, wherein
information about the program is displayed in an electronic
program guide based on the default metadata;
replacing the default metadata with customized metadata
inputted by a user; and
displaying the electronic program guide with changed
program information based on said customized metadata.

Evidence Considered
Ellis US 2004/0175121 A1 September 9, 2004
Logan US 2008/0092168 A1 April 17, 2008
(priority date June 8, 2002)
Durden US 2008/0222673 A1 September 11, 2008
(priority date December 29, 2000)

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Examiner’s Rejections
(1) Claims 1-5 and 12-18 stand rejected under 35 U.S.C. § 102(b)
as being anticipated by Ellis. Ans. 4-6.
(2) Claims 6-9 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Ellis and Logan. Ans. 6-8.
(3) Claims 10, 11, 19, and 20 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Ellis and Durden. Ans. 8-9.

Issues on Appeal
Based on Appellant’s arguments, the dispositive issues on appeal are:
(1) Whether the Examiner erred in rejecting claims 1-5 and 12-18
under 35 U.S.C. § 102(b) as being anticipated by Ellis. In particular, the
result turns on: (a) whether Ellis discloses “[replacing / replace] the default
metadata with customized metadata inputted by a user,” as recited in
independent claims 1, 12, 17, and 18; and (b) whether Ellis discloses a
“digital video recorder (DVR)” as set forth in claims 13-16. App. Br. 7-12.
(2) Whether the Examiner erred in rejecting claims 6-9 under
35 U.S.C. § 103(a) as unpatentable over Ellis in view of Logan. In
particular, the result turns on: (a) whether Logan discloses that “said default
metadata is modified to clarify a description of said [television] program,” as
recited in claims 6; and (b) whether Official Notice taken by the Examiner
relative to features of claims 7 and 8 is proper. App. Br. 12-13.
(3) Whether the Examiner erred in rejecting claims 10, 11, 19, and
20 under 35 U.S.C. § 103(a) as unpatentable over Ellis in view of Durden.
In particular, the result turns on: (a) whether Durden discloses “receiving a
password before replacing the default metadata with said customized
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metadata,” as recited by claims 10 and 11; and (b) whether Durden discloses
“replacing of the default metadata with said customized data overrides a
parental control which is based on the default metadata,” as recited by
claims 19 and 20.

ANALYSIS
1.
(a) §102 Rejection of Claims 1-5 and 12-18 based on Ellis
With respect to Appellant’s independent claims 1, 12, 17, and 18, the
Examiner finds that Ellis discloses “replacing said default metadata with
customized metadata inputted by a user” by way providing a user the ability
“to select various options (inputted by a user) to replace the default metadata
of the program; such as replacing an objectionable title XXX-1 with a more
generic title adult program . . . .” Final Rej. 2-3, 7 (citing Ellis ¶¶ 57-59 and
Figs. 9-11).
Appellant disputes the Examiner’s factual finding regarding Ellis.
App. Br. 7-10; Reply Br. 3-6. In particular, Appellant contends that Ellis
does not disclose “[replacing / replace] said default metadata with
customized metadata inputted by a user” as recited in Appellant’s
independent claims 1, 12, 17, and 18. App. Br. 7. According to Appellant,
Ellis merely discloses “a user” replacing “potentially objectionable material”
in a program guide with “unobjectionable material such as a blank region, a
generic unobjectionable program listing, or an unobjectionable title” by
“pressing cursor buttons and an ‘OK’ button on a remote control.” Id. at 7-8
(citing Ellis ¶¶ 51-52, 56). As such, Appellant argues that the user does not
input the unobjectionable listing to replace the objectionable listing, because
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all of the data displayed in the programming listings “already exists on the
[user’s] set top box.” Id. at 9. The only inputting by a user is to “merely
move a highlight around on a display” to select one of several blocking
features, but these replacement program descriptions are not themselves
“inputted by the user.” Id. at 9-10.
We are not persuaded by Appellant’s argument. Ellis provides for
replacement descriptions, i.e., customized metadata, such as “Spice in the
Evening,” to replace objectionable program listings, i.e., default metadata,
such as “XXX-1.” Ellis ¶ 59 and Fig. 11. Other examples disclosed by Ellis
include providing the description “Playboy Programming” to replace listings
on the “Playboy Channel,” and providing the generic description “adult
programming” in place of any objectionable title. Id. ¶¶ 56-59 and Figs. 9-
11. Appellant has not shown that the Examiner’s finding that such
replacement descriptions are “customized metadata” is not supported by the
evidence. Ans. 9 (emphasis added) (citing Ellis ¶ 59 and Fig. 11); Reply Br.
4.
As Ellis explains, these replacement descriptions are input by a user
using a remote control as follows:
The user may make menu selections by positioning a highlight
region such as highlight region 72 on top of a desired option
using remote control cursor keys and by pressing an OK or
select remove control buttons. To invoke adult program listings
blocking the user may press the OK button after placing
highlight region 72 on top of “on button” 74.

Ellis ¶ 51 (emphasis added). Appellant acknowledges that this action of
moving the cursor keys and pressing “OK” is data “inputted by a user.”
App. Br. 9 (emphasis added). In fact, Ellis refers to the remote control as a
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“user input interface.” Ellis ¶ 38 (emphasis added). Evidently, the
Appellant attempts to draw a distinction between customized metadata typed
in by the user, and Ellis’s disclosure of customized metadata options that are
already “exist[ing] in the set-top box” when it is powered on for the user to
input as a replacement description. Id. However, the claim language
provides for no such distinction. Accordingly, we find that Ellis’s discloses
a user using the remote control to move the cursor and pressing “OK” to
select the replacement description discloses “replacing . . . with customized
metadata inputted by a user” as set forth in Appellant’s claims 1, 12, 17, and
18.
In addition to the above arguments, and solely with respect to claim
17, Appellant further argues that the “selection of blocking options” in Ellis
does not “replace ‘default metadata’ ‘provided by a signal provider’ as
recited in claim 17.” App. Br. 10.
We are unpersuaded by Appellant’s argument. As the Examiner
points out, Ellis’s disclosure is clear that the “selection of blocking options”
replaces the default metadata with customized metadata in the form of an
unobjectionable program description. Ans. 10 (citing Ellis ¶¶ 58-59 and
Fig. 10); see also Abstract, ¶¶ 8, 25-26, 48-50, 56, 60-61; Figs. 2-4 and 11.
To the extent that Appellant’s argument is that claim 17 requires default
metadata to be “provided by a signal provider” to one or more computers
before being replaced by customized metadata and that Ellis makes no such
disclosure, we disagree. In the same embodiment cited by the Examiner,
Ellis discloses exactly such a sequence:
If desired, the program listings that are related to adult
programming may be identified by the program guide after the
program listings data has been distributed to user television
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equipment 32. This is shown in FIG. 3. At step 54, the
program listings are distributed to user television equipment
32. . . . At step 58, the adult program listings identified at step
56 are replaced with inoffensive material by the program guide.

Ellis ¶ 49 (emphasis added). We find that Ellis discloses providing default
program listings to the user before it is replaced by custom metadata in the
form of replacement program descriptions. Accordingly, we are not
persuaded that the Examiner erred with regard to claim 17.
For these reasons and those stated above, we sustain the Examiner’s
anticipation rejections of claims 1, 12, 17, and 18. The Appellant provides
no independent patentability arguments with respect to claims 2-5 and,
accordingly, we sustain the anticipation rejections of claims 2-5 as well.

(b) §102 Rejection of Claims 13-16 based on Ellis
With respect to Appellant’s dependent claims 13-16, the Examiner
finds that Ellis discloses a “set-top box 34 integrated with a VCR 36,” which
the Examiner interprets as a DVR. Final Rej. 7-8 (citing Ellis ¶ 39 and
Fig. 1).
Appellant disputes the Examiner’s finding. App. Br. 10-12; Reply Br.
7-8. Specifically, Appellant contends that “set top box . . . only outputs data
to the VCR, and thus, the set top box could not retrieve the stored program
data from the VCR to generate the program guide as alleged by the Action.”
App. Br. 11. Thus, according to Appellant, Ellis fails to disclose “an
interface to a digital video recorder (DVR) having digital storage for storing
the program and the default metadata.” Id. In response, the Examiner found
that Ellis discloses that “program guide data may be stored locally at user
television equipment 32 (including a set top box 34, VCR 44 and television
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38)” and that Appellant’s contention that the program guide data cannot be
generated from the VCR is not a limitation of claims 13-16. Ans. 11
(emphasis added). Appellant argues in reply that the Examiner provides no
evidence that VCR 44 is “a digital video recorder (DVR) or that it has the
capability of storing the ‘default metadata’ as recited.” Reply Br. 7.
We are not persuaded by Appellant’s argument. We agree with the
Examiner’s finding that “set-top box 34 integrated with a VCR 36 provide a
digital recording function, thus the user equipment together is interpreted as
a DVR.” Final Rej. 7-8. As the Examiner points out, Ellis discloses that
VCR 36 can store program content in the form of an analog, digital, or both
analog and digital video signal, i.e., MPEG-2 digital video signal. Id. at 3
(citing Ellis ¶ 42 and Fig. 1). When a MPEG-2 digital video signal is
received, the VCR 36 as described by Ellis can function as Appellant’s
claimed “DVR.” Moreover, Ellis discloses that the user television
equipment 32, which includes both VCR 34 and set top box 36—i.e., the
DVR—can store the program guide data, in the event it is not continuously
streamed. Ellis ¶ 37. Although Appellant argues that VCR 36 itself does
not inherently store the default metadata, Appellant concedes that “the set
top box may store the data from which the program guide is generated
instead of the VCR.” Reply Br. 7 (emphasis added). In other words, either
the set-top box or the VCR can store the program guide data—the default
metadata of the claims.3 We agree that by combining the functionality of the

3 We disagree with Appellant’s contention that “set top box in the television
equipment 32 only outputs data to the VCR, and thus, [it] could not retrieve
the stored program [guide] data from the VCR.” App. Br. 11. As Ellis
makes clear, the set top box has two connections to the VCR, a video data
connection 42 and a control path 44. Ellis ¶ 42 and Fig. 1.
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set-top box and VCR in Ellis, the evidence supports the Examiner’s finding
that Ellis discloses a DVR for storing both the program and the default
metadata in claim 13. Accordingly, we are unpersuaded that the Examiner
erred in rejecting claim 13 over Ellis. Appellant makes no separate
patentability arguments with respect to claims 14 and 16, and we therefore
sustain the Examiner’s rejections of those claims as well.
In addition to the above arguments, and solely with respect to claim
15, Appellant further argues that there is nothing in Ellis to suggest that “set-
top box 34 and VCR 36 are integrated (i.e. in a common component).” App.
Br. 11-12. Thus, even if the Examiner is correct in finding that the DVR is
comprised of the set-top box and VCR in Ellis, the claim is not satisfied.
We disagree. As explained above, Ellis describes set-top box 32 and VCR
36 as having both video data connection 42 and control path 44. Ellis ¶ 42
and Fig. 1. The control path is designed to allow the set-top box 32 to
control the VCR 36:
Program recording and other features may be controlled by set-
top box 34 using control path 44. Control path 44 may be any
suitable control path such as a control path that uses an infrared
transmitter for transmitting infrared signals to videocassette
recorder 36.

Ellis ¶ 42. Thus, the set-top box 32 and VCR 36 are integrated to provide a
digital recording function because they are designed to work together using,
for example, an infrared command protocol that both are configured for
communicating with. Moreover, Ellis also discloses that functionality of the
set top box 32 is “integrated” into other user television equipment, such as
an advanced television receiver and personal computer television (PC/TV),
of which a digital video recorder (DVR) is included or integrated therein.
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Id. ¶ 39. As such, we are not persuaded that the Examiner erred in rejecting
claim 15 over Ellis.
For these reasons and those stated above, we sustain the Examiner’s
anticipation rejections of claims 13-16.
2.
(a) §103 Rejection of Claims 6-9 over Ellis and Logan
With respect to dependent claim 6, the Examiner finds Ellis discloses
modifying metadata such as title and description for objectionable programs.
Final Rej. 4-5 (citing Ellis, Fig. 10). The Examiner acknowledges Ellis is
silent about modifying the metadata to clarify the description of regular
programs, but relies on Logan for a disclosure of the metadata modification
or editing feature. Id. (citing Logan ¶ 131). Based on these factual findings,
the Examiner concludes that it would have been obvious to one of ordinary
skill to modify Ellis’s system to include Logan’s disclosure that “metadata
which takes the form of an EPG describing broadcast programming can be
edited at the user location to reflect the assessment of the programming.” Id.
Appellant disputes the Examiner’s factual finding regarding Logan.
App. Br. 12-13. In particular, Appellant contends that Logan discloses a
user “merely creating additional local metadata to add to the electronic
program guide” such as “her own review of a program.” Id.
We are not persuaded by Appellant’s argument. Claim terms are
given their broadest reasonable interpretation consistent with the
Specification. In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1369 (Fed.
Cir. 2004). Although the Specification does not specifically define “clarify a
description of said program,” it does provide several examples of clarifying:
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For example, a user may wish to entitle an episode of a series
by the subject matter of that particular episode, rather than by
the series name. . . . Likewise, often default metadata may not
include the title of a program, which is scheduled for broadcast
far into the future or on an obscure channel (e.g., “to be
announced”). In such a case, additional information with
respect to the title may be inputted.

Spec. ¶ 19. Thus, clarifying a description may include adding information to
an existing title, such as an episode name, adding a title where no title is
already listed, or other information such as renaming a block of programs.
In short, these modifications “display information that is more meaningful to
a particular user.” Spec. ¶ 13. We agree with the Examiner that Logan’s
example of modifying metadata to include a rating or written text review,
which is then indicated to other users’ in the default metadata, is clarifying a
description of a program’s content. Ans. 12-13.
For these reasons, we sustain the Examiner’s obviousness rejection of
claims 6. Appellant provides no independent patentability arguments with
respect to claim 9 and, accordingly, we sustain the obviousness rejection of
claim 9 as well.

(b) §103 Rejection of Claims 7-8 over Ellis, Logan and Official Notice
With respect to dependent claims 7 and 8, the Examiner observed that
editing default metadata to “change a name of a program . . . to an episode
[name]” (claim 7) and to “correct a mistake” (claim 8) were both “well
known in the art.” Final Rej. 5. We take the Examiner’s observation to be
an exercise of Official Notice. See MPEP § 2144.03(A).
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Appellant argues that the Examiner’s assertion that the above facts are
common knowledge was improper for lack of evidence and, on that basis,
the rejections of claims 7 and 8 should be reversed. App. Br. 13.
We are not persuaded that the Examiner erred. The Examiner may
take official notice of well-known facts without documentary evidence.
MPEP § 2144.03(A). We find that the noticed facts in question, such as his
finding that editing a description to correct a mistake was well-known, are a
proper use of notice without documentary evidence. To adequately traverse
this finding, Appellant must “stat[e] why the noticed fact is not considered to
be common knowledge or well-known in the art.” Id. § 2144.03(C). An
adequate rebuttal must contain sufficient information or argument to create
on its face a reasonable doubt regarding the circumstances justifying the
Examiner’s notice of what is well known to one of ordinary skill in the art.
See In re Boon, 439 F.2d 724, 728 (CCPA 1971).
Here, Appellant has done nothing other than allege the impropriety of
the Examiner’s use of notice. Appellant has not even disputed whether the
noticed facts are incorrect, much less specifically pointed out errors
sufficient to create reasonable doubt. As a result, we find that Appellant’s
attempted traverse of claims 7 and 8 is inadequate to overcome the
Examiner’s obviousness rejection based on noticed facts. We sustain the
Examiner’s obviousness rejections of claims 7 and 8.
In addition to the above reasons for sustaining the Examiner’s
rejections of claims 6-9, we further note that each of these dependent claims
is directed solely to specifying the content of the customized metadata.
However, the contents of the metadata do not appear to be related in any
way to the functioning of the invention. Instead, claims 6-9 are directed
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solely at non-functional descriptive material (e.g., changing a series name to
an episode or correcting a mistake). As such, the Examiner need not give
patentable weight to these claims absent a new and non-obvious functional
relationship between the descriptions and the invention. See In re Ngai, 367
F.3d 1336, 1338 (Fed. Cir. 2004); Ex parte Curry, 84 USPQ2d 1272 (BPAI
2005) (informative opinion). Thus, even if we agreed with the Appellant
that the teachings of the prior art differed from claims 6-9, such a difference
would not persuade us of error in the Examiner’s rejection of these claims.

3.
(a) §103 Rejection of Claims 10-11 over Ellis and Durden
With respect to dependent claims 10 and 11, the Examiner finds Ellis
discloses customized metadata comprising data for a field subject to parental
control and modifying said field with said customized metadata. Final Rej.
6 (citing Ellis ¶¶ 51-53 and Fig. 5). The Examiner found that Ellis is silent
about requesting a password before replacing a program rating, but relies on
Durden for the use of a personal identification number (PIN) or other
security protocols to allow a user to modify the program rating. Id. (citing
Durden ¶¶ 101-102). Based on these factual findings, the Examiner
concludes that it would have been obvious to one of ordinary skill to modify
Ellis’s system to “to request a password before changing program ratings, as
taught by Durden,” to satisfy claim 10. Id.
Appellant disputes the Examiner’s factual finding regarding Durden.
App. Br. 14-16. In particular, Appellant contends that Durden discloses the
“entry of a PIN to initiate, modify or disable the ‘controls’ . . . , which
determines how a program may be displayed or modified, and not the
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‘content data’ such as the program rating.” Id. at 15. In short, with Durden,
the password can be used to permit viewing of the program, but cannot
change the program rating itself (i.e., the default metadata) as claim 10
requires. Id. at 16. Therefore, according to Appellant, claim 10 (and claim
11, which depends from 10) is not obvious over Ellis and Durden.
The Examiner responds to Appellant by apparently agreeing
that:
Even though Durden only discloses using PIN entry or
other security protocols to allow valid users to modify the
controls for program rating; however, one of ordinary skill in
the art would understand that the well-known technique
disclosed by Durden would also have benefited Ellis to replace
adult program language (the default metadata) with general
description language (customized metadata) to take advantage
of additional secure measure for parental control.

Ans. 14 (emphasis added). Appellant, in reply, argues that the Examiner has
conceded that Durden does not teach the limitation in question. Reply Br. 6-
7.
We are persuaded by Appellant’s argument. In order to establish a
prima facie case of obviousness, the evidence must show that each and every
limitation of the claim is described or suggested by the prior art or would
have been obvious based on the knowledge of those of ordinary skill in the
art. In re Fine, 837 F.2d 1071, 1074 (Fed. Cir. 1988). However, “rejections
on obviousness cannot be sustained by mere conclusory statements; instead,
there must be some articulated reasoning with some rational underpinning to
support the legal conclusion of obviousness.” In re Kahn, 441 F.3d 977, 988
(Fed. Cir. 2006). The reasoning is important “because inventions in most, if
not all, instances rely upon building blocks long since uncovered, and
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claimed discoveries almost of necessity will be combinations of what, in
some sense, is already known.” Id. at 418-19.
Here, the Examiner found that Durden does not disclose a PIN or
password before replacing the default metadata with the customized
metadata as claim 10 requires. Instead, the Examiner concludes that it
would have been obvious to do so in view of Durden’s teaching, but does
not provide sufficient “articulated reasoning with some rational
underpinning” to support this conclusion. Kahn, 441 F.3d at 988.
Accordingly, we do not sustain the Examiner’s rejection of dependent claims
10 and 11 as obvious under 35 U.S.C. § 103(a).

(b) §103 Rejection of Claims 19-20 over Ellis and Durden
With respect to dependent claims 19 and 20, the Examiner finds that
“similar limitations have been analyzed and described as in Claims 10 and
11.” Final Rej. 6.
Appellant disputes the Examiner’s factual finding regarding claims 19
and 20. App. Br. 16-18. Specifically, Appellant argues that, in contrast to
Durden, claims 19 and 20 require that the replacing of the default metadata
itself overrides the parental control. Id. at 17-18.
The Examiner responds:
As one of ordinary skill in the art would understand that, by the
disclosure of Durden (e.g., see Para 102) that PIN entry or other
security protocols can be implemented by system 26 to allow
valid users to initiate, modify or disable the controls (parental
control) for original program rating (the default metadata), thus
the parental control can be overridden by a valid user.

Ans. 14.
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We are persuaded by Appellant’s argument. In Appellant’s invention,
parental control is accomplished by including a rating in the default
metadata that is used for parental control purposes. Spec. ¶ 3. If a parent
wishes to, the parent can “alter the rating or title such that it avoids the
parental control lock.” Id. ¶ 21. Thus, the default metadata can be replaced
by customized metadata to avoid the parental control as required by claims
19 and 20. App. Br. 17. Even accepting the Examiner’s finding that Durden
teaches using a PIN to override the parental controls, that is not the same as
replacing the default metadata to avoid the controls as required by claims 19
and 20. As such, the evidence does not establish a prima facie case of
obviousness. Accordingly, we do not sustain the rejection of dependent
claims 19 and 20 as unpatentable under 35 U.S.C. § 103(a).

CONCLUSION
On the record before us, we conclude that the Examiner has not erred
in rejecting claims 1-5 and 12-18 under 35 U.S.C. § 102(b) and claims 6-9
under 35 U.S.C. § 103(a). However, we do not sustain the rejection of
claims 10, 11, 19, and 20 under 35 U.S.C. § 103(a).

DECISION
As such, we AFFIRM the Examiner’s final rejection of claims 1-9 and
12-18. In addition, we REVERSE the Examiner’s final rejection of claims
10, 11, 19, and 20.
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).
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AFFIRMED-IN-PART

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