Ex Parte Strong

Patent Trial and Appeal Board

Apr 13, 2018

13115729 (P.T.A.B. Apr. 13, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/115,729 05/25/2011
84577 7590 04/17/2018
Lowe Graham Jones PLLC
701 Fifth Avenue
Suite 4800
Seattle, WA 98104
FIRST NAMED INVENTOR
Stephen Strong
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.
P201 l -02-3 l 4024
EXAMINER
MATTHEWS, CHRISTINE HOPKINS
ART UNIT PAPER NUMBER
3735
NOTIFICATION DATE DELIVERY MODE
04/17/2018 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):
patentdocketing@lowegrahamjones.com
IPDEPT@dish.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte STEPHEN STRONG
Appeal2017-003556 1
Application 13/115,729
Technology Center 3700
Before DONALD E. ADAMS, FRANCISCO C. PRATS, and
DEVON ZASTROW NEWMAN, Administrative Patent Judges.
PRATS, Administrative Patent Judge.
DECISION ON APPEAL
This appeal under 35 U.S.C. § 134(a) involves claims to methods of
controlling the presentation of erotica-related media. The Examiner rejected
the claims for obviousness.
We have jurisdiction under 35 U.S.C. § 6(b)(l).
We reverse.
STATEMENT OF THE CASE
Appellant's invention involves controlling the presentation of an
"erotica-related media content event." Spec. i-f 2. Although the
Specification does not specifically define a "media content event," it is
1 Appellant states that "Echo Star Technologies L.L.C. is the assignee of the
present application and is the real party in interest." Appeal Br. 1.
Appeal2017-003556
Application 13/115,729
evident from the Specification that a "media content event" is a media
presentation composed of smaller segments, termed "scene[ s]." See id. i-f 13
(describing a "scene of the erotica-related media content event") (emphasis
added).
The Specification explains that, when a user is viewing such a media
content event, the user may be preoccupied to the extent that manually
controlling presentation of the event, for example rewinding or fast
forwarding, is inconvenient. Id. i-f 2. To address that issue, Appellant's
invention uses a sensor, for example a pulse rate monitor, to determine the
excitation level of the user while the user views the media content event. Id.
,-r,-r 11-12 .
In certain embodiments, if the sensor determines that the user is in a
highly excited state when viewing a particular scene (segment) of the media
event, the sensor, after the excitatory scene concludes, causes the media
presentation device to repeat the presentation of the excitatory scene, "so as
to help the viewing user to maintain, or even enhance, their highly excited
state." Id. ,-r 14.
In other embodiments, if the sensor determines that the user is in a
highly excited state when viewing a particular scene (segment) of the media
event, the sensor, after the excitatory scene concludes, causes the media
presentation device to present a different scene from the same media content
event, or present a scene from a media content event that differs from the
event currently being viewed. Id. i-fi-1 19-20.
The Specification uses the terminology "automatically chang[ing]
presentation" to describe the modification of the original sequence of scenes
presented by the media content event, which occurs when a particular scene
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is automatically repeated and/or a different scene is automatically presented
in the manner described above. Id. i-f 3.
Claim 1 is illustrative the appealed subject matter:
1. A method to control presentation of an erotica-
related media content event by a media device, the method
compnsmg:
receiving information from a user sensor that is
configured to sense a physical characteristic of a
user viewing the erotica-related media content
event, wherein the information corresponds to a
magnitude of the sensed physical characteristic;
determining that the viewing user is entering into a
highly excited state based on the received
information from the user sensor while the user is
viewing a currently presented erotic scene of the
erotica-related media content event, wherein the
determining that the viewing user is entering into
the highly excited state comprises:
comparing the magnitude of the
sensed physical characteristic with a
predefined threshold; and
determining that the viewing user is
entering into a highly excited state
when the magnitude of the sensed
physical characteristic changes from a
value that is less than the predefined
threshold to a magnitude that is
greater than the predefined threshold;
continuing presentation of the currently presented
erotic scene of the erotica-related media content
event that is being presented in response to
determining that the viewing user has entered the
highly excited state,
wherein the currently presented erotic scene
is included in the erotica-related
media content event and is defined by
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a start and a conclusion in the erotica-
related media content event, and
wherein the currently presented erotic scene
is presented until the conclusion of
the currently presented erotic scene of
the erotica-related media content
event; and
automatically changing, by the media device,
presentation of the erotica-related media content
event based on the received information
corresponding to the sensed physical characteristic
of the viewing user, wherein automatically
changing presentation of the erotica-related media
content event by the media device comprises:
determining if the viewing user remains in
the highly excited state at the
conclusion of the currently presented
erotic scene of the erotica-related
media content event based on the
received information from the user
sensor, wherein the user is determined
to remain in the highly excited state
when the magnitude of the sensed
physical characteristic remains greater
than the predefined threshold;
repeating presentation of the erotic scene of
the erotica-related media content
event after the conclusion of the
currently presented erotic scene of the
erotica-related media content event in
response to determining that the
viewing user remains in the highly
excited state; and
continuing presentation of the erotica-related
media content event after the
conclusion of the currently presented
erotic scene of the erotica-related
media content event in response to
determining that the viewing user is
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Application 13/115,729
Appeal Br. 37-38.
no longer in the highly excited state,
wherein the user is determined to be
no longer in the highly excited state
when the magnitude of the sensed
physical characteristic becomes less
than the predefined threshold.
The sole rejection before us for review is the Examiner's final
rejection of claims 1, 3, 4, 6, 8, 10-13, 18-21, 23, and 24, under 35 U.S.C.
§ 103(a) as being unpatentable over Blumenthal2 (Ans. 2-13).
DISCUSSION
As stated inin re Oetiker, 977F.2d1443, 1445 (Fed. Cir. 1992):
[T]he examiner bears the initial burden . . . of presenting a
prima facie case of unpatentability ....
After evidence or argument is submitted by the applicant in
response, patentability is determined on the totality of the
record, by a preponderance of evidence with due consideration
to persuasiveness of argument.
In KSR International Co. v. Teleflex Inc., 550 U.S. 398 (2007),
although the Supreme Court emphasized "an expansive and flexible
approach" to the obviousness question (id. at 415), the Court also reaffirmed
the importance of determining "whether there was an apparent reason to
combine the known elements in the fashion claimed by the patent at issue."
Id. at 418 (emphasis added).
Ultimately, therefore, "[i]n determining whether obviousness is
established by combining the teachings of the prior art, the test is what the
combined teachings of the references would have suggested to those of
2 US 2006/0079732 Al (published Apr. 13, 2006).
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ordinary skill in the art." In re GPAC Inc., 57 F.3d 1573, 1581 (Fed. Cir.
1995) (internal quotations and citations omitted).
In the present case, having carefully considered the arguments and
evidence advanced by Appellant and the Examiner, Appellant persuades us
that the Examiner has not shown by a preponderance of the evidence that
Blumenthal would have suggested, to an ordinary artisan, processes having
all of the steps and features required by Appellant's independent claims 1,
10, and 18.
Appellant's claim 1, as seen above, recites a process in which the
presentation of a scene being viewed by a user is repeated, after the scene
concludes, based on a determination that the user is in a highly excited state.
Appeal Br. 3 8 (claim 1 ).
As the Examiner finds, Blumenthal is similar in some respects to
Appellant's claimed invention in that Blumenthal describes placing a
physiological sensor on a user viewing media content. Blumenthal i-f 34.
However, in contrast to automatically controlling the playback sequence by
repeating a particular segment of the presentation, as recited in Appellant's
claim 1, Blumenthal's modification of the presentation involves, essentially,
synchronizing the movements displayed by the media presentation device
with the movements of the sensor, which is placed, for example, on the
user's hand. Id. i-f 3 5 ("The [sensor] measurements are performed
continually and successive frames are selected for display [by the media
display device] in real time at a rate that reflects the rate of motion of the
user's hand (or other limb)"); see also id. at p. 7 (claim 1).
We are not persuaded that the Examiner has explained adequately
how Blumenthal's disclosure of modifying the display of a currently
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presented media event, by synchronizing the event's presentation with the
user's body movement, would have suggested altering the playback
sequence of the scenes or segments constituting the event, as recited in
Appellant's claim 1. In particular, we are not persuaded that the Examiner
has explained adequately how Blumenthal's disclosure of using a sensor to
synchronize a user's sensed movement with displayed media would have
suggested using the sensor, instead, to automatically continue presentation of
a particular scene to its conclusion, and also to repeat that same scene, as in
the process of Appellant's claim 1.
We acknowledge Blumenthal's disclosure of one embodiment, cited
by the Examiner, in which an increased degree of interaction between the
user and a sensory implement can cause the programmed device "to display
images having stronger erotic content." Id. i-f 50. We acknowledge also
Blumenthal's disclosure that commercial movies may be modified to include
sections that allow the synchronized interaction between the viewing user
and the presented media. Id. i-f 38.
Again, however, Appellant's claim 1 requires changing the order of
the presentation of the media content event by repeating a particular scene,
in response to a determination that the viewing user has remained in a highly
excited state, as noted above. Absent some evidence-based explanation,
which is not present in this case, we are not persuaded that Blumenthal's
disclosures of using a sensor to allow synchronization between a viewing
user's body movement and presented media, suggests the modification of the
playback sequence required by Appellant's claim 1. Accordingly, we
reverse the Examiner's obviousness rejection of claim 1, and its dependents,
over Blumenthal.
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Appellant's claim 10 is similar to claim 1, except that, rather than
requiring the currently viewed scene to be repeated, claim 10 instead recites
that the automatic change to the media content event is presentation of either
a different scene from a different media content event, or a different scene
from the currently viewed event, based on a determination that the user
remains in a highly excited state at the conclusion of the currently presented
scene. Appeal Br. 40 (claim 10).
Similar to the situation in claim 1, we are not persuaded that the
Examiner has advanced a sufficient evidence-supported explanation as to
how or why Blumenthal's disclosure of using a sensor to synchronize a
user's sensed movement with displayed media would have suggested using
the sensor, instead, to automatically alter the playback sequence of the
scenes or segments constituting the event, in a manner encompassed by
Appellant's claim 10. Accordingly, for reasons similar to those discussed as
to claim 1, we reverse the Examiner's obviousness rejection of claim 10, and
its dependents, over Blumenthal.
Appellant's claim 18 does not require the automatic change in the
media event presentation to be either a repetition of the previous scene (as in
claim 1), or a switch to a different scene (as recited in claim 10). Rather,
claim 18 requires an automatic change in the presentation of the media
content event "based upon the conclusion of the currently presented erotic
scene in response to determining that the viewing user remains in the highly
excited state." Appeal Br. 42 (claim 18).
The Examiner does not persuade us, however, that Blumenthal's
change in the media event presentation is based on the conclusion of a
presently viewed scene, and in response to determining that the viewer is in
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a highly excited state, as claim 18 requires. The Examiner cites i-fi-135, 55,
and 61 of Blumenthal as evidence that the reference teaches the automatic
change in media event presentation recited in claim 18. See Ans. 10-11.
We acknowledge, as noted above, that Blumenthal changes the
presentation of media by synchronizing the media's display with the
viewer's sensed motions. See Blumenthal i135. We acknowledge
Blumenthal's disclosure of one embodiment in which an increased degree of
interaction between the user and a sensory implement can cause the
programmed device "to display images having stronger erotic content." Id.
i150. We acknowledge that Blumenthal also discloses processes in which a
viewer uses implements that feed sensation back to the viewer. Id. i1 61.
Claim 18, however, not only requires the change in the presentation of
the media event to be based on determination of the highly excited state, but
also based on the conclusion of the currently viewed scene. The Examiner
does not explain specifically, nor do we discern in the identified teachings of
Blumenthal, how or why Blumenthal suggests automatically changing the
media presentation not only based on determination of a highly excited state,
but also based on the presence of that state at the conclusion of the currently
viewed scene, as claim 18 requires. Accordingly, we also reverse the
Examiner's obviousness rejection of claim 18 and its dependents over
Blumenthal.
SUMMARY
For the reasons discussed, we reverse the Examiner's obviousness
rejection over Blumenthal.
REVERSED
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