Ex Parte Levy et al

Patent Trial and Appeal Board

Jun 20, 2016

13248881 (P.T.A.B. Jun. 20, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/248,881 09/29/2011 Joanne Levy
30636 7590 06/20/2016
FAY KAPLUN & MARCIN, LLP
150 BROADWAY, SUITE 702
NEW YORK, NY 10038
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.
40205/03701 1867
EXAMINER
PIERORAZIO, MICHAEL
ART UNIT PAPER NUMBER
2426
MAILDATE DELIVERY MODE
06/20/2016 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 JOANNE LEVY, ADAM SOLOMON, JEN TRACY, CHRISTINE
WARNER, ROY FIRESTONE, TIM BAGWELL, JONATHAN TABAK,
RYNAN ONDRIEZEK, PATRICIA CLARKE and THONG DUY VU
Appeal2014-007942
Application 13/248,881
Technology Center 2400
Before MELISSA A. RAAP ALA, KAMRAN JIV ANI, and JOYCE CRAIG,
Administrative Patent Judges.
RAAP ALA, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) from a final
rejection of claims 1-24. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Appeal2014-007942
Application 13/248,881
INVENTION
Appellants' invention is directed to integration of an interactive
virtual toy box advertising unit and digital media content. Spec. i-f 1. Claim
1 is exemplary of the subject matter on appeal:
1. A method for dynamic integration and presentation of
interactive advertising content and media content, the method
compnsmg:
providing, by a server computing device, an advertising
unit comprising:
a first content layer including the media content and
a media player;
a second content layer including the interactive
advertising content, wherein the advertising content
includes a virtual toy box generated as a function of the
media content; and
an integration module configured to:
display the media content in the media
player; and
after determining that playback of the media
content is complete, display the advertising content;
and
transmitting, by the server computing device, the
advertising nit for presentation on the remote computing device.
REJECTIONS ON APPEAL 1
Claims 1, 5, 6, 9, 10, 14, 16, and 21-24 stand rejected under 35 U.S.C.
§ 103(a) as being obvious over the combination of Wurster (US
1 The Examiner withdrew the nonstatutory obviousness type double
patenting rejections. Ans. 2.
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Appeal2014-007942
Application 13/248,881
2009/0063280 Al; Mar. 5, 2009) and Ganz (US 2009/0063282 Al; Mar. 5,
2009). Final Act. 7-21.
Claims 2--4, 7, 8, 11-13, 15, and 17-20 stand rejected as being
unpatentable under 35 U.S.C. § 103(a) over the combination of Wurster,
Ganz, and various additional references. Final Act. 21-36.
ISSUE
Appellants' contentions present us with the following issue: Did the
Examiner err in finding the combination of Wurster and Ganz teaches or
suggests the advertising content includes a virtual toy box generated as a
function of the media content ("advertising content" limitation), as recited in
independent claim 1?
ANALYSIS
Appellants contend the combination of Wurster and Ganz does not
teach or suggest advertising content generated as a function of media content
and a virtual toy box. App. Br. 5-7, 13; Reply Br. 2-6. In particular,
Appellants argue Wurster describes advertisements based on a request for
content and does not teach or suggest advertising content generated as a
function of the media content itself. App. Br. 4. Appellants further argue
Ganz describes the capability of interacting with one or more virtual toys,
but does not teach or suggest a virtual toy box, which Appellants define as a
virtual container containing multiple virtual toys that may be unlocked or
used. App. Br. 7 (citing Spec. i-f 44); see also Reply Br. 5. We are not
persuaded by Appellants' arguments.
The Examiner finds Wurster teaches or suggests adverting content
generated as a function of media content. Final Act. 8 (citing Wurster i-fi-1 6,
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Appeal2014-007942
Application 13/248,881
28, 29); see also Ans. 5---6. Wurster describes that in response to a request to
initiate delivery of content, content and one or more advertisements
associated with the request are obtained. Wurster i-f 28. We agree with
Appellants that claim 1 recites advertising content is generated as a function
of media content (Reply Br. 3); however, we disagree that that the cited
section fails to suggest this limitation. An obviousness analysis "need not
seek out precise teachings directed to the specific subject matter of the
challenged claim, for a court can take account of the inferences and creative
steps that a person of ordinary skill in the art would employ." KSR Int'! Co.
v. Teleflex, Inc., 550 U.S. 398, 418 (2007). We agree with the Examiner that
one of ordinary skill in the art would infer from Wurster that advertising
content associated with a request can be generated based on the content of
the requested media itself. See Ans. 5---6.
We also agree with the Examiner that neither Appellants'
Specification, nor claim 1, provides a narrowing definition of virtual toy box
that limits it to the proffered definition. See Ans. 8. But even if we accept
Appellants' claim construction, Appellants do not address or explain why
the Examiner's findings that Ganz' s dock teaches or suggests a virtual toy
box (Ans. 11-12) are in error under the proposed construction. The cited
sections describe a dock (virtual container) that contains multiple virtual
toys that the user may move into a room for interactive play (use). Ganz
i-fi-1141, 143. Appellants do not convince us that the dock described in Ganz
does not teach or suggest a virtual toy box.
For the reasons discussed above, Appellants fail to persuade us the
Examiner errs in finding the combination of Wurster and Ganz teaches or
suggests the "advertising content" limitation of claim 1. Accordingly, we
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Appeal2014-007942
Application 13/248,881
sustain the 35 U.S.C. § 103(a) rejection of claim 1, and claims 5, 6, 9, 10,
14, 16, and 21-24, which Appellants do not argue separately.
With respect to claims 2--4, 7, 8, 11-13, 15, and 17-20, Appellants
merely contend the additional references used in the rejections of these
claims do not make up for the purported deficiencies present in Wurster and
Ganz. See App. Br. 13-17. As Appellants do not otherwise separately
argue these claims with particularity, we sustain the 35 U.S.C. § 103(a)
rejections of claims 2--4, 7, 8, 11-13, 15, and 17-20 for the reasons
discussed supra.
DECISION
We affirm the Examiner's decision to reject claims 1-24.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 41.50(f).
AFFIRMED
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