Ex Parte Jung et al

Patent Trial and Appeal Board

Jul 3, 2018

13459390 (P.T.A.B. Jul. 3, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/459,390 04/30/2012
98665 7590 07/05/2018
Otterstedt, Ellenbogen & Kammer, LLP
P.O. Box 381
Cos Cob, CT 06807
FIRST NAMED INVENTOR
Peter Jung
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
P00785-US-UTIL 1251
EXAMINER
CHANNA V AJJALA, SRIRAMA T
ART UNIT PAPER NUMBER
2157
MAILDATE DELIVERY MODE
07/05/2018 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 PETER JUNG, DEBORAH SERIANNI, CHRIS COLBORN,
WILLIAM TURNAGE, SETH SOLOMON, MICHAEL C. PICCUIRRO,
and TYE RATTENBURY
Appeal2017-006938
Application 13/459,390
Technology Center 2100
Before ERIC S. FRAHM, DENISE M. POTHIER, and SCOTT E. BAIN,
Administrative Patent Judges.
POTHIER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants 1' 2 appeal under 35 U.S.C. § 134(a) from the Examiner's
non-final rejection of claims 2-10, 12-27, and 29-32. App. Br. 1. Claims 1,
11 and 28 have been canceled. App. Br. 16-17, 20 (Claims App.). We have
jurisdiction under 35 U.S.C. § 6(b). We reverse.
1 Throughout this Opinion, we refer to the Non-Final Office Action
(Non-Final Act.) mailed April 19, 2016, the Appeal Brief (App. Br.) filed
December 19, 2016, the Examiner's Answer (Ans.) mailed February 3,
2017, and the Reply Brief (Reply Br.) filed March 29, 2017.
2 The real party in interest is listed as MasterCard International Incorporated.
App. Br. 3.
Appeal2017-006938
Application 13/459,390
Invention
Appellants' invention relates to "digital music players" and
"techniques for characterizing an individual based on his or her musical
preferences." See Spec. 1 :5-6, 1 :29-30. The technique includes visualizing
musical preferences and user's listening habits, such as by using graphics
(e.g., petal-like or pick-like elements 602), and analyzing data from various
sources (e.g., digital music player's operating system, Internet-based
video-sharing web site, Internet-based social-networking service, and
Internet-based music streaming service). Spec. 3:3-10, Fig. 8.
Claim 2 is reproduced below with emphases:
2. A method comprising:
receiving metadata associated with a plurality of media
clips stored on a non-transistory [sic] computer-readable
recordable storage medium and accessed by a user via at least
one digital media player;
scoring each of said media clips accessed by said user,
based at least on a respective play count read from said
metadata, each of said media clips having a corresponding one
of a plurality of genres read from said metadata;
scoring each of said plurality of genres based at least on
said play count for those of said media clips contained therein;
selecting from said media clips stored on said non-
transistory [sic] computer-readable recordable storage medium
a representative subset of said media clips having a distribution
of said genres proportionate to a distribution of said genres
determined for said media clips from which said representative
subset of said media clips are selected, said distributions of
said genres determined using scores from said step of scoring
each of said plurality of genres; and
displaying, by said at least one digital media player, a
graphic visual representation of a media identity of said user by
conveying individualized information for each said media clips
in said representative subset of said media clips.
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Application 13/459,390
The Examiner relies on the following as evidence of unpatentability:
Dunning
Torrens
Purdy
US 2002/0082901 Al
US 2007 /0233726 Al
US 2009/0138505 Al
The Rejections
June 27, 2002
Oct. 4, 2007
May 28, 2009
Claims 2-10, 12-16, 18-27, and 29-32 are rejected under 35 U.S.C.
§ 103(a) (pre-AIA) as unpatentable over Purdy and Torrens. Non-Final Act.
11-19.
Claim 17 is rejected under 35 U.S.C. § 103(a) (pre-AIA) as
unpatentable over Purdy, Torrens, and Dunning. Non-Final Act. 19-20.
THE REJECTION OVER PURDY AND TORRENS
Regarding independent claims 2, 20, 31, and 32, Appellants argue the
Examiner has not presented a prima facie case of obviousness for the recited
"selecting" step. App. Br. 11; see App. Br. 10-12; see also Reply Br.
11-12. Appellants assert Purdy's "scoring criteria and selection" does not
teach the recited "selecting" step because Purdy's technique returns all the
media content and not "a representative subset of said media clips having a
distribution of said genres proportionate to a distribution of said genres
determined for said media clips from which ... [the] representative subset of
said media clips are selected" as recited. App. Br. 10-12 (citing Purdy
i-fi-f 17, 22); Reply Br. 10-11, 13-14. Appellants argue the recited
representative subset "is not merely a visual abstraction, but a specific subset
of media selected to accurately reflect a distribution of genres determined for
a larger set of media clips." App. Br. 12; Reply Br. 12-13. Appellants
further contend combining Torrens with Purdy does not perform the
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Application 13/459,390
"claimed selection of a representative subset." App. Br. 12; Reply Br.
13-14.
ISSUE
Given the record, has the Examiner erred in rejecting claim 2 by
finding that Purdy and Torrens under§ 103(a) collectively would have
taught or suggested
selecting from said media clips stored on said non-
transistory [sic] computer-readable recordable storage medium
a representative subset of said media clips having a distribution
of said genres proportionate to a distribution of said genres
determined for said media clips from which said representative
subset of said media clips are selected, said distributions of said
genres determined using scores from said step of scoring each
of said plurality of genres ...
("the 'selecting' step")?
ANALYSIS
Based on the record before us, we are persuaded of error.
The Examiner finds Purdy and Torrens teach the disputed "selecting"
step. Non-Final Act. 12-14. Specifically, the Examiner states Purdy teaches
selecting a representative subset of the media having a distribution of genres
proportionate to genres distribution, the genres distributions determined
using scores from the step of "scoring each of said plurality of genres."
Non-Final Act. 12 (citing Purdy i-fi-f 17, 20, 22, 35, 36). The Examiner turns
to Torrens to teach or suggest the remaining recitation in the "selecting step"
- "determined for said media clips from which said representative subset of
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Application 13/459,390
said media clips are selected." Non-Final Act. 13 (citing Torrens i-fi-15, 29);
Ans. 3. The Examiner further provides reasons to combine the teachings.
Non-Final Act. 14; Ans. 4--5.
Regarding the disputed "representative subset"3 (App. Br. 10-12), the
Examiner discusses Purdy teaches a subset of media collection (element
166) and recommending media content in a social recommendation
environment. Non-Final Act. 12 (citing Purdy i-fi-135-36). In the Answer,
the Examiner states Purdy teaches each music genre is associated with a
subset of a collection and supports a user selecting a playlist of media
content items associated with a subset of the media collection. Ans. 2-3
(citing Purdy i120, Fig. 6 (element 166)); see also Non-Final Act. 4.
Purdy teaches analyzing "a group of media content items ... with
respect to the scoring criteria (step 102)." Purdy i-f 17 (bolding omitted),
Fig. 1. Although pointing to the entire media collection (Non-Final Act. 12
(discussing 166 in Figure 6) ), Purdy explains
[ t ]he group of media content items analyzed may be, for
example a media collection of the user, media content items
identified by one or more playlists created, owned, or acquired
by the user, or a group of media content items otherwise
associated with the user, such as a subset of the user's media
collection.
Purdy i-f 17; Purdy i-fi-f 16, 35-36. As such, the scoring of a group of media
content items may be on less than the user's entire media collection (e.g., a
subset of the user's collection or a user's playlist).
3 The Specification does not define or limit the term "representative subset"
or "subset." See generally Spec. The disclosure provides an example where
the subset can be the top twelve (Spec. 19:22-20:9) or a fraction of a total
number of songs (e.g., 12 of 425) (Spec. 26: 15-20).
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Once the media content group is chosen, scoring function 164
operates to score the media content items in the selected group. Purdy
i-fi-f 17, 35-36, Figs. 1 (step 102), 6. "For example, ifthe scoring criteria
includes the Rock music genre, the Country music genre, and the Alternative
music genre, the group of media content items may be analyzed to
determine" the percentage of the media content items from each music
genre. Purdy i-f 17; Purdy i120 (e.g., Alternative 40%, Country/Folk 5%,
Rock 5% ); see also Ans. 5 (citing Purdy i-f 17).
As such, Purdy teaches selecting from media clips "a representative
subset" (e.g., a playlist or a subset of the user's media collection) and the
subset has "a distribution of genres" as recited (e.g., Alternative 40%,
Country/Folk 5%, Rock 5%). Purdy i-fi-f 17, 20. Nonetheless, although each
music genre is associated with a subset of a collection (e.g., a subset or a
playlist) as noted (Ans. 2-3), each playlist or subset in Purdy does not
represent "an overall distribution of genres" (see Non-Final Act. 4) or have
"a distribution of said genres" as recited (App. Br. 16 (Claims App.)). In
particular and as argued by Appellants (see App. Br. 11-12), this teaching in
Purdy does not further teach or suggest the selected subset's distribution of
genres (e.g., the playlist's or subset's) is "proportionate to a distribution of
said genres determined for said media clips from which said representative
subset of said media clips are selected" (emphasis added) (e.g., the user's
entire media collection) as recited. See Purdy i-fi-f 17, 20.
The Examiner further discusses Purdy supports a user selecting a
play list of media content items associated with a subset of the media
collection. Ans. 2-3. To elaborate, Purdy teaches taking action based on the
scores of the media content items. Purdy i-fi-14, 28, Fig. 2 (step 202). For
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example, Purdy teaches generating a playlist based on the scores. Purdy
i-f 28. Purdy also explains the scoring process may be used for social
recommendations. Purdy i-f 29. As such, in the situation when scoring an
entire user's collection, Purdy may suggests the subsequent playlist
generated or social recommendations (e.g., a selected "subset") are based on
"a distribution of said genres determined for said media clips from which
said representative subset of said media clips are selected." See Purdy i-f 17.
However, whether any of these actions includes selecting "a representative
subset of said media clips having a distribution of said genres proportionate
to a distribution of said genres determined for said media clips from which
said representative subset of said media clips are selected" as recited in
claim 2 (emphasis added) has not been established on the record. Nor will
we speculate on the first instance on appeal.
Accordingly, the Examiner has not explained sufficiently how Purdy's
analysis and scoring, playlist generation, or social recommendations teach or
suggest the entire, recited "selecting" step in claim 2.
The cited passages in Torrens do not cure what is missing from Purdy.
Non-Final Act. 13 (citing Torrens i-fi-15, 29); Ans. 3--4. 4 At best, Torrens
teaches that a playlist is a subset of a library. Torrens i-f 5. However, as
4 As proposed, the rejection treats claim 2 in a rather, piecemeal fashion.
For example, the Examiner turns to Torrens to teach the limitation
"determined for said media clips from which said representative subset of
said media clips are selected" within the recited "a distribution of said
genres determined for said media clips from which said representative subset
of said media clips are selected" in claim 2. App. Br. 16 (Claims App.).
Notably, "[s]ection 103, by its own terms, requires that a determination of
obviousness be made by considering 'the subject matter as a whole."'
Parkerv. Flook, 437 U.S. 584, 594 n.16 (1978).
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discussed above, Purdy also teaches selecting a music playlist, which is a
representative subset of media clips. Torrens further teaches coloring music
genres differently, each genre corresponding to a sector (e.g., 50, Fig. 3), and
the sectors represent different amounts of play count. Torrens i-f 29, Figs.
2-7 (element 134), cited in Ans. 3. But, these passages do not teach or
suggest a subset having "a distribution of said genres determined for a said
media clips from which said representative subset of said media clips are
selected" in claim 2. Thus, even when combining Torrens' teachings with
Purdy (Non-Final Act. 13-14; Ans. 4--5), the proposed combination fails to
teach or suggest "a representative subset of said media clips having a
distribution of said genres proportionate to a distribution of said genres
determined for said media clips from which said representative subset of
said media clips are selected" as recited in claim 2.
Accordingly, the Examiner has not explained sufficiently how Purdy
and Torrens, alone or collectively, teach or suggest "selecting from said
media clips ... a representative subset of said media clips having a
distribution of said genres proportionate to a distribution of said genres
determined for said media clips from which said representative subset of
said media clips are selected" in claim 2.
For the foregoing reasons, Appellants have persuaded us of error in
the rejection of (1) independent claim 2, (2) independent claims 20, 31, and
32, which recite commensurate limitations, and (3) the dependent claims for
similar reasons.
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THE REMAINING REJECTION
Claim 1 7 depends indirectly from claim 1. The Examiner finds Purdy
and Torrens do not teach the features in claim 17, turning to Dunning.
Non-Final Act. 19--20 (citing Dunning i-fi-f 108, 127, 130, 280, Fig. 19). The
Examiner has not relied upon Dunning to cure the above-noted deficiencies
in Purdy and Torrens. Non-Final Act. 19--20; see also App. Br. 14--15. As
such, this proposed rejection does not address the previous-noted
shortcomings identified with the rejection based on Purdy and Torrens.
Given the record, Appellants have persuaded us of error.
DECISION
We reverse the Examiner's rejections of claims 2-10, 12-27, and
29--32 under§ 103(a).
REVERSED
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