Ex Parte Myers et al

Patent Trial and Appeal Board

Feb 27, 2018

13600552 (P.T.A.B. Feb. 27, 2018)

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.
13/600,552 08/31/2012 Theodore A. Myers 266-DDG-07-2012 8821
86548 7590
Garlick & Markison (IH)
106 E. 6th Street, Suite 900
Austin, TX 78701
EXAMINER
HWA, SHYUE JIUNN
ART UNIT PAPER NUMBER
2156
NOTIFICATION DATE DELIVERY MODE
03/01/2018 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
MMurdock@ TEX ASPATENTS .COM
bpierotti @ texaspatents .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte THEODORE A. MYERS, KEVIN R. LOCKHART,
JEFFREY D. ZIGLER, ALAN L. SLEDGE,
RICHARD D. WOODEN, and JACQUELINE J. LOCKHART
Appeal 2017-002849
Application 13/600,552
Technology Center 2100
Before CARLA M. KRIVAK, AMBER L. HAGY, and SHARON FENICK,
Administrative Patent Judges.
HAGY, Administrative Patent Judge.
DECISION ON APPEAL
Appellants1 appeal under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 1—20, which are all of the pending claims. We
have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 Appellants identify iHeartMedia Management Services, Inc., as the real
party in interest. (App. Br. 4.)
Appeal 2017-002849
Application 13/600,552
STATEMENT OF THE CASE
Introduction
According to Appellants, the application “generally relates to
information technology in the field of radio broadcasting, and more
particularly to interactive radio broadcasting.” (Spec. 13.) By way of
Background, Appellants’ Specification states that “[i]n the field of radio
broadcasting, present broadcast scheduling technology is not utilized to its
full potential. For example, listeners are not able to interact with
broadcasters to create, hear and rate broadcasting playlists.” {Id. 14.)
Appellants’ Specification purports to address the need for such “listener
participation” with the claimed invention. {Id.)
Exemplary Claim
Claims 1, 8, and 15 are independent. Claim 1, reproduced below, is
exemplary of the claimed subject matter:
1. A method comprising:
providing a listener participation interface from a
physical server to a listener computer via a communications
network, the listener participation interface providing a listener
access to a library of media elements;
receiving, at the physical server, listener input from the
listener participation interface, the listener input arranging
selected media elements from the library of media elements into
a play list;
creating a playlist, at the physical server, using the
listener input, wherein creating the playlist includes merging
the selected media elements into a file having a format
compatible with broadcast automation software executed by a
broadcaster’s computer system; and
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transmitting the playlist from the physical server to the
broadcaster’s computer system via the communications
network, wherein the broadcaster’s computer system is
configured to incorporate the playlist into a radio broadcast
using the broadcast automation software.
References
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Leeke et al. (“Leeke”) US 6,587,127 B1 July 1, 2003
Shen US 2007/0245388 Al Oct. 18, 2007
Gebhardt et al. (“Gebhardt”) US 2008/0010342 Al Jan. 10, 2008
Rejections2
Claims 1—14 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Leeke and Shen. (Final Act. 4—10.)
Claims 15—20 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Leeke and Gebhardt. (Final Act. 10-13.)
Issues
1. Whether the Examiner erred in finding the combination of
Leeke and Shen teaches or suggests “transmitting the playlist from the
physical server to the broadcaster’s computer system via the
communications network, wherein the broadcaster’s computer system is
configured to incorporate the playlist into a radio broadcast using the
broadcast automation software,” as recited in independent claim 1.
2 All rejections are under the provisions of 35 U.S.C. in effect prior to the
effective date of the Leahy-Smith America Invents Act of 2011.
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2. Whether the Examiner erred in finding the combination of
Leeke and Shen teaches or suggests “receiving, at the physical server,
listener input from the listener participation interface, the listener input
arranging selected media elements from the library of media elements into a
play list,” as recited in independent claim 1.
3. Whether the Examiner erred in finding the combination of
Leeke and Shen teaches or suggests “creating a playlist, at the physical
server, using the listener input, wherein creating the playlist includes
merging the selected media elements into a file having a format compatible
with broadcast automation software executed by a broadcaster’s computer
system,” as recited in independent claim 1.
4. Whether the Examiner engaged in impermissible hindsight in
combining the teachings of Leeke and Shen.
5. Whether the Examiner erred in finding the combination of
Leeke and Shen teaches or suggests “generating the playlist in a format
compatible with broadcast automation software executed by a computer
system of a broadcaster, wherein the play list is generated by the server
computer based on the user input,” as recited in independent claim 15.
ANALYSIS
35 U.S.C. § 103(a): Claims 1—7
The Examiner relies primarily on Leeke as teaching or suggesting the
limitations of claim 1. (Final Act. 4—6.) Leeke discloses “methods and
systems for distributing and playing content such as audio content.” (Leeke,
1:9-10.) In particular, Leeke discloses an audio player that resides on a
server “to assist in selecting, retrieving, and playing the audio content.” (Id.
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at 4:50-52.) Leeke’s player may access audio content “either locally from
the server ... or remotely from [another] server,” and may communicate the
audio content “using streaming technology.” (Id. 5:1—4.) Leeke further
discloses that the player is responsive to “a virtual smart card stored at one
or more of the client apparatus . . . and the server,” which “can act as a
preference key to uniquely personalize a player.” (Id. at 5:16—21.) Leeke
discloses a graphical user interface for allowing users to create a playlist
using a “drag-and-drop” operation. (Id. at 25:26-40 and Fig. 33.) Leeke
also discloses that smart cards can be used to save and share playlists
between users:
Smarts cards also facilitate access to specific titles as part of a
playlist. In this case, the end user can specify and save a
playlist of titles to the smart card. The playlist is used to
control the player. The playlist is amenable for transfer
between the end user and another end user, and between a
plurality of access points for the end user.
(Id. at 18:60-65.) Leeke additionally notes that end users of the system
include “listeners” as well as “broadcasters.” (Id. at 6:15—16.)
The Examiner acknowledges that Leeke “does not explicitly teach”
the limitation of “merging the selected media elements into a file having a
format compatible with broadcast automation software executed by a
broadcaster’s computer system,” as recited in claim 1. (Final Act. 7.) To
support the conclusion of obviousness, the Examiner relies on Shen in
addition to Leeke, finding that Shen teaches receiving content and
“integrating (e.g., merging) the content with the broadcasting station’s
automated scheduling and broadcasting process.” (Id. at 7—8 (citing Shen
H 2, 3).) The Examiner further finds that the ordinarily skilled artisan
would understand from the teachings of Leeke and Shen that “creating the
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playlist includes merging the selected media elements into a file format
compatible with broadcast automation software.” {Id. at 8.)
Appellants argue several points in support of their contention that the
Examiner’s rejection is in error. With regard to the recitation in claim 1 of
“receiving . . . listener input from the listener participation interface, the
listener input arranging selected media elements . . . into a playlist,”
Appellants argue the Examiner’s findings are in error because Leeke
“disclose [s] that an already existing playlist is presented to users for
feedback,” and thus Leeke “simply discloses a way to navigate through a
library of available content.” (App. Br. 11—12 (emphasis added).) We
disagree that Leeke’s disclosure is as limited as Appellants contend. As the
Examiner finds, and we agree, Leeke discloses, inter alia, a drag-and-drop
interface for users to add and delete items from a playlist and to save the
playlist to a smart card. (See Ans. 9-10 (citing, e.g., Leeke at 25:26—64, Lig.
33).) Thus, Leeke teaches or suggests receiving listener input to arrange
media elements into a playlist, as recited in claim 1.
Appellants also argue against the Examiner’s findings with regard to
the “transmitting” step of claim 1, asserting that “[tjhere is no disclosure in
Leeke that a user playlist stored on the smart card is incorporated into a
broadcast.” (App. Br. at 11 (emphasis added).) Appellants further argue,
with regard to the same limitation, that “Shen does not disclose that the
content received from the content distributors is a listener specified playlist,
with the listener selections having been received through a specialized
interface, as required by the claims.” (App. Br. 10 (emphasis added).)
Appellants raise similar arguments against the Examiner’s findings
regarding claim 1 ’s recitation of the “creating a playlist” limitation, arguing
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that Leeke does not teach creating a playlist wherein the media elements are
merged “into a file having a format compatible with broadcast automation
software,” and in Shen, the “media automation system updates the playlist,”
but does not teach creating the list in the compatible format in the first
instance. (App. Br. 12; Reply Br. 2—3.)
Simply put, Appellants challenge the Examiner’s findings regarding
the “creating a playlist” and “transmitting the playlist” limitations by
arguing that Leeke does not disclose formatting suitable for broadcast and
that Shen does not disclose user-created playlists. (See App. Br. 10-12;
Reply Br. 2—3.) Appellants’ piecemeal challenges regarding the individual
teachings of the cited references are not persuasive of Examiner error in the
rejection, which is based on the combined teachings of these references.
One cannot show non-obviousness by attacking references individually
when the rejection is based on a combination of references. In re Keller,
642 F.2d 413, 425 (CCPA 1981). The test for obviousness is not whether
the claimed invention is expressly suggested in anyone or all of the
references, but whether the claimed subject matter would have been obvious
to those of ordinary skill in the art in light of the combined teachings of
those references. Keller, 642 F.2d at 425.
The Examiner finds, and we agree, that the combination of Leeke and
Shen teaches or suggests the “creating a playlist” and “transmitting the
playlist” limitations of claim 1. In particular, as noted above, the Examiner
finds Leeke discloses that an end user may create a playlist from a selection
of items via a drag-and-drop interface and save the playlist on a smart card.
(Final Act. 6; Leeke 25:27-40.) The Examiner further finds Leeke discloses
the smart card may be used to control an audio player for automatic
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playback, and also discloses the player may cooperate “with a browser
program and/or a streaming audio plug-in program.” (Final Act. 6; see
Leeke 5:16—18, 5:32—34.) Leeke further discloses “the playlist is amenable
for transfer between the end user and another end user, and between a
plurality of access points for the end user.” (Leeke at 18:63—67.) Thus,
Leeke teaches that one user (such as a listener) may create a playlist on a
virtual smart card and transfer the smart card to another user, who may be a
broadcaster. (See Leeke 6:15—16 (describing end users as including listeners
and broadcasters).) As the Examiner further finds, and we agree, a
broadcaster may use the smart card to control a player to play the playlist
from the smart card for streaming the content over the Internet. (Final Act.
6; see also Ans. 6 (noting Leeke’s disclosure of “Broadcast Architecture” for
testing audio playlists (citing Leeke 1:49-56).) The Examiner’s view of a
“broadcast” as including Internet streaming is consistent with the teachings
of Appellants’ Specification, which describe a “broadcast” of a “radio
program” as including “streaming or downloading” to a “listener computer.”
(Spec. 131.)
Although the Examiner finds Leeke does not “explicitly teach” the
step of “merging the selected media elements into a file having a format
compatible with broadcast automation software,” the Examiner relies on
Shen as disclosing such conversion. (Final Act. 7.) We agree that Shen
discloses automatically converting content received from a content delivery
service into a format for broadcast. (Shen 112, 3; Final Act. 7.)
Appellants also argue that the Examiner’s combination of Leeke and
Shen is the result of improper hindsight because “[o]ne of ordinary skill in
the art would not have had a reason to modify Leeke’s smart card system
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with Shen’s techniques for integrating content from content providers.”
(App. Br. 12.) We disagree. We note that a reason to combine teachings
from the prior art “may be found in explicit or implicit teachings within the
references themselves, from the ordinary knowledge of those skilled in the
art, or from the nature of the problem to be solved.” IVMS Gaming Inc. v.
Inti Game Tech., 184 F.3d 1339, 1355 (Fed. Cir. 1999) (citing In re Rouffet,
149 F.3d 1350, 1355 (Fed. Cir. 1998)). “Under the correct [obviousness]
analysis, any need or problem known in the field of endeavor at the time of
invention and addressed by the patent can provide a reason for combining
the elements in the manner claimed.” KSR Int’l Co. v. Teleflex Inc., 550 U.S.
398, 420 (2007). In the instant appeal, the Examiner has provided a
rationale supporting motivation by a person of ordinary skill in the art to
combine the teachings of Leeke and Shen to achieve the claimed subject
matter:
[I]t would have been obvious to one of ordinary skill in
the art at the time the invention was made, having the teachings
of Leeke and Shen before him/her, to modify Leeke creating the
playlist includes merging the selected media elements into a file
having a format compatible with broadcast automation software
because that would allow a broadcast facility system to process
internet protocol based distributed programming content
automated in ways to reduce the chances of human error and
able to support end to end digital programming to eliminate the
need to reconvert formats as taught by Shen.
(Final Act. 8 (citing Shen || 13—14); see also Ans. 14.) Appellants have not
provided persuasive evidence or line of reasoning explaining why such
rationale is erroneous or why a person of ordinary skill in the art would not
have reached the conclusions reached by the Examiner. See DyStar
Textilfarben GmbH & Co. Deutschland KG v. C.H. Patrick Co., 464 F.3d
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1356, 1368 (Fed. Cir. 2006) (“[T]he proper question is whether the ordinary
artisan possesses knowledge and skills rendering him capable of combining
the prior art references.”).
We further note that, by teaching creating and sharing playlists via
smart cards, and also by teaching that smart cards may be used to control
audio players, Leeke discloses creating and sharing a playlist including
audio content in the format that a recipient user (such as a broadcaster) may
use for playing that content. In that regard, merging the media elements of
the playlist into a file having a format suitable for broadcast is not a stretch
of Leeke—indeed, in the context in which the “broadcast” is simply
streaming over the Internet, an ordinarily skilled artisan would understand
from Leeke that a broadcaster could use the smart card to control an audio
player for streaming the content over the Internet. To the extent more
sophisticated broadcast is desired, we agree with the Examiner’s findings
that the ordinarily skilled artisan would combine Leeke’s teachings with
Shen’s disclosure of automatic conversion of content into a format suitable
for broadcast. (Final Act. 7; Ans. 13—14.)
For the foregoing reasons, we are not persuaded of error in the
Examiner’s 35 U.S.C. § 103(a) rejection of independent claim 1 or of
dependent claims 2—7, which are not argued separately. (App. Br. 15.) We,
therefore, sustain the Examiner’s rejection of claims 1—7.
35 U.S.C. § 103(a): Claims 8—14
Appellants purport to argue independent claim 8 separately, but
merely refer back to the same arguments presented for claim 1. (App. Br.
13.) Therefore, for the same reasons stated above for claim 1, we also
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sustain the Examiner’s rejection of claim 8, along with the rejection of
dependent claims 9-14 not argued separately. (App. Br. 15.) See 37 C.F.R.
§ 41.37(c)(l)(iv); see also In re Lovin, 652 F.3d 1349, 1356 (Fed. Cir. 2011)
(“We conclude that the Board has reasonably interpreted Rule 41.37 to
require applicants to articulate more substantive arguments if they wish for
individual claims to be treated separately.”).
35 U.S.C. § 103(a): Claims 15—20
Independent claim 15 is similar to independent claim 1, except that
instead of reciting “creating a playlist, at the physical server,” claim 15
recites “generating the playlist ... by the server.” (App. Br. 20.) Although
claim 1 recites that the media elements are arranged in a file compatible with
a broadcaster’s system, claim 15 is slightly different in that it recites that the
playlist itself is “in a format compatible with broadcast automation software
executed by a computer system of a broadcaster.” (Id.)
In rejecting claim 15, the Examiner combines the teachings of Feeke,
as found with regard to claim 1, with the teachings of Gebhardt. (Final Act.
10—11.) The Examiner finds:
[I]t would have been obvious to one of ordinary skill in the art
at the time the invention was made, having the teachings of
Feeke and Gebhardt before him/her, to modify Feeke
generating the playlist in a format compatible with broadcast
automation software because that would allow a broadcast
receiver, such as a set top box or compatible television, tuned to
the selected channel receives the broadcast signal which
provide a method that uses existing control signals from
scheduling systems to further facilitate the automated control of
synchronous interactivity with broadcast programs as taught by
Gebhardt.
(Id. at 11 (citing Gebhardt || 13, 14).)
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Appellants argue the Examiner’s findings are in error because
“Gebhardf s interactive applications do not teach or suggest the applicant’s
claimed play list, which is generated based on listener input received from a
listener participation interface. Instead of being play lists that organize and
arrange media items in time sequence, Gebhardt’s interactive applications
are executable objects that are designed to accompany media items.” (App.
Br. 14.) Appellants’ arguments do not persuade us of Examiner error
because Appellants argue error based on the teachings of Gebhardt
individually, whereas the Examiner’s rejection is premised on Gebhardt
combined with Leeke. (Final Act. 10—11; see also Ans. 16—18.) See Keller,
642 F.2d at 425. As the Examiner notes, “Leeke and Gebhardt both teach
creating a playlist.” (Ans. 16.) As noted supra, the Examiner relies on
Leeke for teaching creating a playlist based on listener input and via a
listener participation interface. (Final Act. 4—6, 10—11; Ans. 6—10, 16.)
Similarly to the Examiner’s reliance on Shen in combination with Leeke in
rejecting claim 1, the Examiner combines Gebhardt’s teachings with Leeke
in rejecting claim 15, relying in particular on Gebhardt’s disclosure of, inter
alia, combining data from interactive applications with broadcast data from
broadcast sources to create the broadcast signal. (Ans. 17.) That is, the
Examiner’s findings regarding Gebhardt are not premised on the particular
content of the signal or on being sourced from listener input; rather, the
Examiner’s findings regarding Gebhardt are premised on generation of a
signal in a format compatible with the broadcaster’s system. (See id.) As
the Examiner finds, it is the combined teachings of Leeke and Gebhardt that
teach or suggest the claimed invention to the ordinarily skilled artisan.
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Appellants do not rebut the Examiner’s findings regarding these combined
teachings.
For the foregoing reasons, we are not persuaded of error in the
Examiner’s 35 U.S.C. § 103(a) rejection of independent claim 15 or of
dependent claims 16—20, which are not argued separately. (App. Br. 15.)
We, therefore, sustain the Examiner’s rejection of claims 15—20.
DECISION
The Examiner’s rejections of claims 1—20 are 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)(l)(iv).
AFFIRMED
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