Ex Parte Setos

Patent Trial and Appeal Board

Aug 16, 2016

12943335 (P.T.A.B. Aug. 16, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/943,335 11/10/2010
78537 7590 08/18/2016
Cantor Colburn LLP - Fox Entertainment Group
20 Church Street
22nd Floor
Hartford, CT 06103
FIRST NAMED INVENTOR
Andrew G. Setos
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.
FEG0257USP 3473
EXAMINER
KURIEN, CHRISTEN A
ART UNIT PAPER NUMBER
2427
NOTIFICATION DATE DELIVERY MODE
08/18/2016 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):
usptopatentmail @cantorcolbum.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ANDREW G. SETOS
Appeal2015-002081
Application 12/943,335
Technology Center 2400
Before JOSEPH P. LENTIVECH, KARA L. SZPONDOWSKI, and
JOHN R. KENNY, Administrative Patent Judges.
SZPONDOWSKI, Administrative Patent Judge.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner's
Final Rejection of claims 1--4. We have jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
Appeal2015-002081
Application 12/943,335
STATEMENT OF THE CASE
Appellant's invention is directed to a time dependent replacement of
stored broadcast content. (Spec. i-f 5). Claim 1, reproduced below with the
disputed limitations in italics, is representative of the claimed subject matter:
1. A method for time dependent replacement of stored
broadcast content, comprising:
receiving and storing a broadcast steam on a storage
device for future playback;
identifying to said device or by said device one or more
segments that were provided at a first time within said stored
broadcast stream that may be replaced;
upon user controlled playback, said device determining
that said one or more segments may be replaced based upon a
separate file or based upon a determination of playback time;
replacing said one or more segments with one or more
segments provided at a second time before or during playback of
said one or more segments that were provided at said first time,
the at least one or more segments relevant to the playback date,
the playback day of the week, playback hour or time, or playback
proximity to a date, day, hour or time or event of interest;
and initiating playback of non-substituted original
broadcast segments along with said one or more segments that
were provided at said second time.
REJECTION
Claims 1--4 stand rejected under 35 U.S.C. § 102(b) as being
anticipated by Liga et al. (US 2003/0154128 Al; published Aug. 14, 2003).
2
Appeal2015-002081
Application 12/943,335
ANALYSIS
Issue 1: Did the Examiner err in finding Liga discloses "said device
determining that said one or more segments may be replaced based upon a
separate file or based upon a determination of playback time," as recited in
independent claim 1?
Appellant contends the device in Liga "does not determine whether or
not to replace an ad. Rather, it reads an instruction from the ad to replace
the ad." (App. Br. 4). According to Appellant, in Liga, the device "must be
told what to do; in the present case, the device makes a determination on its
own." (Id.)
We are not persuaded by Appellant's arguments. Liga describes
advertisements that may be encoded or embedded with hidden information,
such as a time or date stamp indicating when an advertisement expires.
(Liga i-fi-1 9, 24, Fig. 7). In Liga, as the device plays back a recorded video
signal, "it may check the embedded information" and "substitute an updated
advertisement" if "the embedded information indicate[ s] that an
advertisement is stale." (Id.) Moreover, Liga explicitly describes "the
embodiment determines ... whether the time-sensitive information
embedded in the advertisement indicates that the advertisement is now
stale." (Liga i183). Liga further describes that such non-displayable data
(the hidden information, such as the time or date stamp) may be transmitted
as separate packets in the programming signal data stream. (Liga i153).
Appellant has not persuasively explained why Liga's determining that
an advertisement is stale, and if so, replacing that advertisement, "does not
determine whether or not to replace an ad" and constitutes merely "read[ing]
an instruction from the ad to replace the ad." We note Appellant's
3
Appeal2015-002081
Application 12/943,335
Specification does not provide a definition for "determining" as used in the
disputed limitation. Appellant directs us to paragraph 21 of Appellant's
Specification as describing the disputed limitation. (App. Br. 3). Paragraph
21 states, in part, "the content elements or segments that may be replaced are
identified (see box 26)." Under a broad but reasonable interpretation,
consistent with the Specification, we agree with the Examiner the disputed
limitation is disclosed in Liga. (See Ans. 3--4; Final Act. 2--4). Further, we
agree with the Examiner that Liga's disclosure of transmission of the non-
displayable information (i.e., time stamp or expiration date) in separate
packets discloses the claimed separate file. (See Ans. 2-3).
Accordingly, for the foregoing reasons, we sustain the Examiner's
rejection of independent claim 1, and dependent claim 2, which was not
argued separately.
Issue 2: Did the Examiner err in finding Liga discloses the limitations
in dependent claims 3 and 4?
Appellant argues:
Additionally, claim 3 indicates that segments are replaced
with alternative content elements that are relevant to the
playback date, playback date of the week, playback hour or time,
or playback proximity to a date, day, hour or time or event of
interest (not described by Liga).
Additionally, claim 4 describes a circumstance where
multiple files are sent or downloaded with updates (not described
by Liga).
(App. Br. 4).
4
Appeal2015-002081
Application 12/943,335
We are not persuaded by Appellant's arguments because Appellant
has failed to rebut the Examiner's findings. (See Final Act. 4; Ans. 4). To
show error in the Examiner's position, Appellant must explain why the
relied-upon disclosure does not disclose the claimed feature, rather than
merely alleging that the feature is not shown. See 37 C.F.R.
§ 41.3 7 ( c )( 1 )(iv) ("A statement which merely points out what a claim recites
will not be considered an argument for separate patentability of the claim");
In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011); In re Baxter Travenol
Labs, 952 F.2d 388, 391 (Fed. Cir. 1991) ("It is not the function of this court
to examine the claims in greater detail than argued by an appellant[.]").
Accordingly, on this record, we are not persuaded the Examiner erred
in finding Liga discloses the disputed limitations in claims 3 and 4, and we
therefore sustain the Examiner's rejection of dependent claims 3 and 4.
DECISION
For the above reasons, the Examiner's rejection of claims 1--4 is
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
5