11021236 (B.P.A.I. May. 31, 2012)

Ex Parte Vasa

Board of Patent Appeals and InterferencesMay 31, 2012

11021236 (B.P.A.I. May. 31, 2012)

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. 11/021,236 12/23/2004 Yojak Vasa 9314-97 9351 54414 7590 06/01/2012 MYERS BIGEL SIBLEY & SAJOVEC, P.A. P.O. BOX 37428 RALEIGH, NC 27627 EXAMINER LIM, STEVEN ART UNIT PAPER NUMBER 2617 MAIL DATE DELIVERY MODE 06/01/2012 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 BOARD OF PATENT APPEALS AND INTERFERENCES ________________ Ex parte YOJAK VASA ________________ Appeal 2010-002550 Application 11/021,236 Technology Center 2600 ________________ Before ROBERT E. NAPPI, KALYAN K. DESHPANDE, and JASON V. MORGAN, Administrative Patent Judges. MORGAN, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-002550 Application 11/021,236 2 STATEMENT OF THE CASE Introduction This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s final rejection of claims 1, 2, 5, 6, 8 – 17, and 19 – 36. Claims 3, 4, 7, and 18 are canceled. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. Invention The invention is directed to (1) transmission of a radio signal that may include an audio descriptor of a content item, such as a headline, abstract and/or sample of the item and (2) transmission of information related to audio segments to a second location, such as the content item and/or a link thereto (see Abstract). Exemplary Claims 1. A method of delivering electronic content, the method comprising: transmitting a radio signal including a plurality of audio segments comprising audio descriptors of respective text content items; and responsive to a user selection of at least one of the audio segments at a first location that receives the radio signal, transmitting information related to the at least one of the audio segments to a second location. (Emphasis added). 2. A method according to Claim 1 wherein transmitting information related to the at least one of the audio segments to a second location comprises transmitting a text content item and/or a link thereto. (Emphasis added). Appeal 2010-002550 Application 11/021,236 3 Evidence and Rejection The Examiner rejects claims 1, 2, 5, 8, 10, 12 – 14, 16, 17, 19, 21 – 24, 26, 27, 29, and 30 under 35 U.S.C. § 102(e) as being anticipated by Walsh (US 6,965,770 B2) (Ans. 3 – 7). The Examiner rejects claims 6, 9, 11, 15, 20, 25, 28, and 31 under 35 U.S.C. § 103(a) as being unpatentable over Walsh and Watanabe (US 2003/0140104 A1) (Ans. 7 – 14). ISSUES 1. Did the Examiner err in finding that Walsh discloses “a plurality of audio segments comprising audio descriptors of respective text content items the recitations,” as recited in claim 1? 2. Did the Examiner err in finding that Walsh discloses “transmitting a text content item and/or a link thereto,” as recited in claim 2? ANALYSIS Claims 1, 12, 16, 22, 26, and 29 In rejecting claim 1, the Examiner relies on Walsh’s disclosure of a selection program on a dynamic content delivery system that sends song samples to a mobile telephone to describe “a plurality of audio segments comprising audio descriptors of respective text content items” (see Ans. 3, 4, and 14 (citing, e.g., Walsh col. 5, ll. 3 – 16)). Appellant argues that “a song sample is, at most, an audio descriptor of an audio content item” (App. Br. 6) (emphasis in the original). However, audio segment content is merely non-functional descriptive material. The Examiner need not give patentable weight to descriptive material absent a new and unobvious functional relationship between the descriptive material and the substrate. See In re Appeal 2010-002550 Application 11/021,236 4 Lowry, 32 F.3d 1579, 1583 – 84 (Fed. Cir. 1994); In re Ngai, 367 F.3d 1336, 1338 (Fed. Cir. 2004); and Ex parte Curry, 84 USPQ2d 1272 (BPAI 2005) (informative). Therefore, what the claimed audio descriptor describes (i.e., a text content item rather than an audio content item) does not differentiate the claimed invention from the cited prior art. Accordingly, we sustain the rejection of claim 1, as well as the rejection of claims 12, 16, 22, 26, and 29, which are not argued separately (see App. Br. 7). Claims 2, 13, 17, and 23 In rejecting claim 2, the Examiner relies on Walsh’s disclosure of a Bluetooth client sending a request to play a selected song to describe “transmitting a text content item and/or a link thereto,” as recited in claim 2 (see Ans. 4 (citing Walsh col. 6, ll. 19 – 24)). Appellant argues that “[t]his passage describes playing a song in response to a user selection, not transmission of a text content item” (App. Br. 7) (emphasis in the original). However, the Examiner correctly finds that for Walsh’s device to play the requested song, “the client must send a pointer, a name, or some textual information or related text based information for the server to know what the user selected” (Ans. 15 (citing Walsh col. 5, ll. 31 – 35 and col. 6, ll. 4 – 19)). Appellant does not provide evidence or persuasive arguments to illustrate a distinction between “a pointer, a name, or some textual information or related text” and the claimed “text content item and/or a link thereto.” Accordingly, we sustain the rejection of claim 2, as well as the rejection of claims 13, 17, and 23, which are not argued separately (see App. Br. 7 – 8). Appeal 2010-002550 Application 11/021,236 5 Claims 5, 6, 8, 9 – 11, 14, 15, 19 – 20, 24, 25, 27, 28, and 30 – 36 Similar to claim 1, Appellant’s arguments with respect to claims 5, 6, 9, 15, 20, 25, 28, and 31 – 36 rely on limitations that merely represent non- functional descriptive material (see App. Br. 8 – 10). These arguments are also not persuasive of error. Appellant does not argue the other claims separately (see App. Br. 6 – 10). Accordingly, we sustain the rejections of claims 5, 6, 8, 9 – 11, 14, 15, 19, 20, 24, 25, 27, 28, and 30 – 36. DECISION We affirm the Examiner’s decision to reject claims 1, 2, 5, 6, 8 – 17, and 19 – 36. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED ke