Ex Parte Piccionelli

Patent Trial and Appeal Board

Mar 19, 2018

13385847 (P.T.A.B. Mar. 19, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/385,847 03/09/2012
116438 7590
Apogee Law Group
26895 Aliso Creek Road
Suite 104
Aliso Viejo, CA 92656
03/21/2018
FIRST NAMED INVENTOR
Gregory A. Piccionelli
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.
GAP14001USU 8477
EXAMINER
WILLIAMS, CLAYTONR
ART UNIT PAPER NUMBER
2457
NOTIFICATION DATE DELIVERY MODE
03/21/2018 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):
jcwilk@goapogee.com
mara@goapogee.com
docketing@goapogee.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GREGORY A. PICCIONELLI
Appeal2017-007577
Application 13/385,847
Technology Center 2400
Before CARL W. WHITEHEAD JR., IRVINE. BRANCH, and
AMBER L. HAGY, Administrative Patent Judges.
WHITEHEAD JR., Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant is appealing the final rejection of claims 1-15 under
35 U.S.C. § 134(a). Appeal Brief 8. We have jurisdiction under 35 U.S.C.
§ 6(b) (2012).
We affirm.
Appeal2017-007577
Application 13/385,847
Introduction
The invention is directed to "methods for displaying live
performances on a site on a network, and more particularly, live
performances satisfying one or more performance criteria." Specification 1.
Illustrative Claim
1. A method of aggregating displays of live performances
into an aggregation site on a network, the live performances
originating from at least one performance site on a network, the
live performances being monitored from a monitoring site, the
method comprising the steps of:
i) establishing performance criterion upon which live
streaming website camera performances will be selected for
aggregation onto a site on a network,
ii) observing at least one live streaming website camera
performance originating from at least one performance website
on a network, the at least one live streaming website camera
performance being associated with a link to access the at least
one live performance on a network in response to the
performance criterion being met by the at least one live
performer during the at least one live streaming website camera
performance,
iii) detecting a signal at a monitoring site in response to
the performance occurring live when the at least one live
streaming website camera performance meets the performance
criterion, and
iv) establishing, in response to the signal, the link
associated with the at least one live streaming website camera
performance meeting the performance criterion into an
aggregation site on a network, wherein steps (ii) and (iv) are
carried out in conjunction with a processor that is operatively
coupled to a memory for displaying the at least one live
streaming website camera performance and for storing the
established link on the aggregation site on the network.
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Appeal2017-007577
Application 13/385,847
Rejections on Appeal
Claims 1-15 stand rejected under 35 U.S.C. § 101 because the
claimed invention is directed to non-statutory subject matter. Final Action
2-5.
Claims 1-3, 7-9, and 15 stand provisionally rejected on the ground of
nonstatutory double patenting as being unpatentable over claims 2, 5, and 6
of copending Application 13/815,795, Rasanen (US Application Publication
2008/0086747 Al; published April 10, 2008), and Titus (US Application
Publication 2010/0026802 Al; published February 4, 2010). 1 Final Action
5-11.
Claims 1-15 stand rejected under pre-AIA 35 U.S.C. § 103(a) as
being unpatentable over Rasanen, Gutta (US Patent Application Publication
2003/0126267 Al; published July 3, 2003), and Titus. Final Action 12-27.
ANALYSIS
Rather than reiterate the arguments of Appellant and the Examiner,
we refer to the Appeal Brief (filed February 27, 2017), the Reply Brief (filed
April 20, 2017), the Answer (mailed March 3, 2017) and the Final Action
(mailed July 28, 2016) for the respective details.
1 Appellant does not provide arguments disputing this rejection in the
Appeal Brief. However, we do not reach the merits of the Examiner's
provisional double patenting rejection because the issue is not ripe for
decision at this time, consistent with the holding of Ex Parte Monda, 95
USPQ2d 1884, 1885 (BP AI 2010) (precedential).
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Appeal2017-007577
Application 13/385,847
35 U.S.C. § 101 rejection of claims 1-15
The U. S. Supreme Court provides a two-step test for determining
whether a claim is directed to patent-eligible subject matter under 35 U.S.C.
§ 101. 2 In the first step, we determine whether the claims are directed to one
or more judicial exceptions (i.e., law of nature, natural phenomenon, and
abstract ideas) to the four statutory categories of invention (i.e., process,
machine, manufacture, and composition of matter). Alice, 134 S. Ct. at 2355
(citing Mayo Collaborative Servs. v. Prometheus Labs., Inc., 132 S. Ct.
1289, 1296-97 (2012)) ("Mayo"). In the second step, we "consider the
elements of each claim both individually and 'as an ordered combination' to
determine whether the additional elements 'transform the nature of the
claim' into a patent-eligible application." Id. (citing Mayo, 132 S. Ct. at
1297-98). In other words, the second step is to "search for an 'inventive
concept'-i.e., an element or combination of elements that is 'sufficient to
ensure that the patent in practice amounts to significantly more than a patent
upon the [ineligible concept] itself."' Id. (citing Mayo, 132 S. Ct. at 1294).
Appellant contends:
Applicant is not simply claiming establishing a link or
filtering; rather Applicant is claiming establishing a link in an
aggregation site. The aggregation site is aggregates links to the
different live performances together on a site. The meaning of
aggregation is being read out of the claims.
The dynamic grouping of content of live performances is
occurring and that is new in the art and has never been done.
Further, Applicant is not simply claiming the idea of putting links
on a website but when the links are CREATED. The claims are
tailored to cover links of live performers being aggregated into
an aggregation site while the performance is occurring.
2 Alice Corp. Pty. Ltd. v. CLS Bank Int'!, 134 S. Ct. 2347, 2354 (2014).
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Appeal2017-007577
Application 13/385,847
Appeal Brief 9.
The Examiner finds:
Similar in operation to Electric Power Group[3], claim
1 collects information (i.e., the claimed "observing" of live
streaming website camera performances for performance
criteria as defined by "establishing" step). Next, the claim
"detects" when at least one live streaming website camera
performance meets the performance criterion. This operation is
analogous to Electric Power Group's "analyzing it" step.
Lastly, the instant claim "establishes" a link associated with the
at least one live streaming website camera performance meeting
the performance criterion into an aggregation site ... for
displaying the at least one live streaming website camera
performance. Analogously, Electric Power Group "displays
certain results of the collection and analysis."
Analogous to Classen[4 ], the instant claim collects
information "observes" performances for performance
criterion being met by at least one live performer (i.e.,
collecting known information). Based on this collection of
data, the instant claim "detects" when at least one website
camera performance meets the performance criterion and
establishes a link for the at least one website camera
performance (i.e., "comparing known information").
Answer 3--4 (emphasis added).
We find Appellant's arguments persuasive and find that the claims are
more than an abstract concept because the claims manipulate links to live
performances over a network, thus, addressing an Internet-centric problem. 5
3 lTlectric Povver Group, LLC v. Alstom S.A., 830 F.3d 1350 (Fed. Cir. 2016).
4 Classen Immunotherapies, Inc. v. Biogen IDEC, 659 F.3d 1057 (Fed. Cir.
2011).
5 DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1259 (2014)
("[T]he claimed solution amounts to an inventive concept for resolving this
particular Internet-centric problem, rendering the claims patent-eligible.)
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Appeal2017-007577
Application 13/385,847
The claims do not need to be technologically complex to be patent eligible
under 35 U.S.C. § 101.6 Accordingly, we reverse the Examiner's 35 U.S.C.
§ 101 rejection of claims 1-15.
35 U.S.C. § 103 rejection of claims 1-15
Appellant contends,
Ras[a]nen et al. when combined with Gutta results in a guide
of upcoming performances and media or media that may be
accessed, while Gutta would filter that media once it is selected
and played. All the references when combined fail to teach or
show a link being crated to a live performance based upon what
is occurring in that live performance as claimed in the
independent claims by the Applicant.
Appeal Brief 12-13.
Rasanen discloses in paragraph 8,
[a ]ccordingly, systems and methods are provided for
identifying and obtaining information for a set of media
provided on the Internet, and displaying a subset of the
identified media in a listing. Systems and methods are also
provided that systematically narrow down a set of online media
listings provided to a user based on criteria that interests the
user.
Further, Rasanen employs a display screen utilizing a mosaic configuration
for online video. Rasanen, paragraph 16. Rasanen's Figure 2 is reproduced
below:
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Appeal2017-007577
Application 13/385,847
Display 200 provides guidance for Internet-delivered videos, and may
be provided as a display in an online media guidance application, or as a
display in a client-server or stand-alone (e.g., set-top box based) guidance
application. In some examples herein, Internet-delivered television programs
are provided, although the disclosed embodiments may provide guidance for
movies, user-generated content, or any other types of media content.
Rasanen, paragraph 42.
that:
Rasanen further discloses in paragraph 42 in reference to Figure 2
[ w ]ith a user input device, a user may select a criteria element
212 in window 214 (e.g., by moving highlighted region 216 to a
desired criteria element and pressing a key or by directly clicking
the desired criteria element). Once selected, in addition to being
displayed within window 214, the selected criteria element may
appear at 218.
The Examiner finds Gutta discloses "an electronic media object is any
entity electronic media object that can be obtained from a local or remote
source, such as the Internet, including HTML documents, images, audio and
video streams and applets" and "[i]n a further variation, the electronic media
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Appeal2017-007577
Application 13/385,847
objects that are filtered by the present invention may be generated in real-
time, for example, by a video camera or another recording device." Gutta,
paragraph 13; see Final Action 14. The Examiner concludes, "[i]t would
have been obvious to one of ordinary skill at the time of the claimed
invention to have introduced Gutta' s teaching of a content filtering system
that identifies desired/permissible performers alongside Rasanen's
disclosure of a method for aggregating displays of performances into an
aggregation site." Final Action 14.
We agree with the Examiner's findings and do not find Appellant's
arguments persuasive. Accordingly, we sustain the Examiner obviousness
rejection of claims 1-15.
DECISION
The Examiner's non-statutory subject matter rejection of claims 1-15
is reversed.
The Examiner's obviousness rejection of claim 1-15 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § l.136(a)(l). See 37 C.F.R.
§ l.136(a)(l )(iv).
AFFIRMED
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