13763319 (P.T.A.B. Oct. 31, 2018)

Ex Parte Waisanen et al

Patent Trial and Appeal BoardOct 31, 2018

13763319 (P.T.A.B. Oct. 31, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 13/763,319 02/08/2013 Hayden Waisanen 100597 7590 11/02/2018 KILPATRICK TOWNSEND & STOCKTON LLP (DISH) DISH Network L.L.C. 1100 Peachtree Street Suite 2800 Atlanta, GA 30309 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. P2012-09-25 (852741) 8935 EXAMINER GEE, ALEXANDER ART UNIT PAPER NUMBER 2425 NOTIFICATION DATE DELIVERY MODE 11/02/2018 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): ipefiling@kilpatricktownsend.com KTSDocketing2@kilpatrick.foundationip.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte HAYDEN WAISANEN and NICHOLAS B. NEWELL Appeal2018-003533 Application 13/763,319 1 Technology Center 2400 Before ERIC B. CHEN, MATTHEW R. CLEMENTS, and SCOTT E. BAIN, Administrative Patent Judges. CLEMENTS, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal under 35 U.S.C. Â§ 134(a) from the Examiner's Final Rejection of claims 1, 5-8, 17, 20, 22-26, 28-31, 33-3 5, and 37. Claims 2--4, 9-16, 18, 19, 21, 27, 32, and 36 are canceled. We have jurisdiction under 35 U.S.C. Â§ 6(b). We REVERSE. 1 Appellants identify the real party in interest as "Echostar Technologies, L.L.C." App. Br. 2. Appeal2018-003533 Application 13/763,319 STATEMENT OF THE CASE The present invention determines whether available media content has priority over currently viewed media content. Spec., Abstr. The embodiments determine viewer preferences for content and scan available content to identify preferred offerings. Id. ,r 14. In an example of scanning, metadata tags of video packets are analyzed to determine the content's subject matter, such as the content's title and actors. Id. ,r,r 33, 39. Claims 1 and 17 are independent. Claim 1 is illustrative ( disputed limitations in italics). 1. A method for providing access to particular media content, comprising: receiving, by a television receiver, a plurality of concurrent media content from a service provider, including at least a first media content and a second media content, wherein each of the plurality of media content comprises a stream or sequence of video packets including one or more real-time metadata tags embedded within the video packets such that the real-time metadata tags are not output when the media content is output by an output device, and wherein each real-time metadata tag is associated with a specific time period during the media content; outputting, by a television receiver, the first media content for presentation by a display device; monitoring the stream or sequence of video packets of the second media content, and extracting, by the television receiver, one or more real-time metadata tags from the video packets of the second media content, during the output of the first media content; 2 Appeal2018-003533 Application 13/763,319 retrieving, by the television receiver, a priority listing associated with a first user of the television receiver; comparing, by the television receiver, the real-time metadata tags extracted from the video packets of the second media content to the priority listing associated with the first user; determining, by the television receiver, based on the comparison of the real-time metadata tags extracted from the video packets of the second media content to the priority listing associated with the first user, whether the second media content has a priority greater than the first media content; and providing access, by the television receiver, to the second media content for presentation by the display device, in place of the first media content when the second media content has greater priority than the first media content. App. Br. (Claims App.) 10. THE REJECTIONS Claims 1, 5, 6, 17, 20, 22-26, 28-31, and 33 stand rejected under 35 U.S.C. Â§ I03(a) as unpatentable over Cassidy (US 2012/0204201 Al; published Aug. 9, 2012), Archer (US 2012/0054610 Al; published Mar. 1, 2012), and Remington (US 2010/0319015 Al; published Dec. 16, 2010). Final Act. 4--14 (mailed June 14, 2017). Claims 7 and 8 stand rejected under 35 U.S.C. Â§ I03(a) as unpatentable over Cassidy, Archer, Remington, and Akella (US 2011/0035462 Al; published Feb. 10, 2011). Final Act. 14--16. Claim 34 stands rejected under 35 U.S.C. Â§ I03(a) as unpatentable over Cassidy, Archer, Remington, and Ferren (US 2013/0346144 Al; published Dec. 26, 2013). Final Act. 16-17. 3 Appeal2018-003533 Application 13/763,319 Claim 35 stands rejected under 35 U.S.C. Â§ I03(a) as unpatentable over Cassidy, Archer, Remington, and Dougherty (US 7,028,327 B 1; issued Apr. 11, 2006). Final Act. 1 7-19. Claim 37 stands rejected under 35 U.S.C. Â§ I03(a) as unpatentable over Cassidy, Archer, Remington, Dougherty, and Butcher (US 2014/0172429 Al; published June 19, 2014). Final Act. 19-21. ISSUE Does Archer teach or suggest the claimed "metadata tags embedded within the video packets" and "extract[ing] ... metadata tags from the video packets," as recited in independent claims 1 and 17? ANALYSIS Both independent, claims 1 and 1 7, recite, in disputed part, "metadata tags embedded within the video packets" and "extract[ing] ... metadata tags from the video packets" (independent claims 1 and 17). The Examiner relies upon Archer's disclosure of closed captioning (CC) text embedded in a video stream to teach the claimed "metadata tags." Final Act. 7-8; see also Ans. 20-21. Appellants argue that Archer's closed captioning (CC) text is neither "metadata" nor a "tag." App. Br. 5-6. Appellants contend, for example, "the cited paragraphs of Archer only describe analyzing the close captioning text stream associated with media content" and this "is not the same as or equivalent to extracting real-time metadata tags from video packets." Id. at 5. Appellants further contend that "Archer's closed caption text stream also is not 'tags,' nor is it 'embedded within the video packets."' Id. 4 Appeal2018-003533 Application 13/763,319 The Examiner finds that Archer's CC text stream is "analogous to extracting the data from the video packets because the data is packaged with the media content stream" because: (1) Archer teaches it "may be received packaged with a stream of data representative of the media content" (Archer ,r 25); and (2) Archer's closed caption stream is "one or more keywords relating to the broadcast content," which is encompassed by "real- time metadata tags." Ans. 20-21. Appellants counter: [T]he examiner argues that Archer's analysis of close captioning text streams is "analogous" to the extracting of real-time metadata tags from video packets recited in independent claim 1. (See, e.g., Answer, pp. 20 and 21 ). The term "analogous" means "comparable in certain respects[.]" ... [T]o say that analyzing close captioning text streams is analogous to extracting real-time metadata tags from video packets[] is not to say that these techniques are equivalent .... Reply Br. 2 ( emphasis omitted). We are persuaded by Appellants' argument. It is not sufficient that Archer's CC text stream is merely "analogous to" the claimed metadata tags. Ans. 20-21; Final Act. 2. To find two things are "analogous" is to imply that they are somehow different, but the Examiner does not identify the ways in which the claimed extracting of embedded metadata tags and extracting of Archer's CC text are different. Final Act. 2-3, 7-8; Ans. 6-7, 20-21. Thus, the Examiner has not identified the differences between the claimed invention and prior art, much less shown the differences would have been obvious to a person of ordinary skill in art. See KSR Int 'l Co. v. Teleflex 5 Appeal2018-003533 Application 13/763,319 Inc., 550 U.S. 398,406 (2007); see also e.g., In re Ruff, 256 F.2d 590, 599 (CCPA 1958) (equivalency must be demonstrated). For the reasons stated above, the Examiner has not shown sufficiently that the combination teaches or suggests the claimed extracting of one or more embedded metadata tags. We, therefore, do not sustain the Examiner's rejections of independent claims 1 and 17, and their dependent claims 5-8, 20, 22-26, 28-31, 33-35, and 37. DECISION The Examiner's decision rejecting claims 1, 5-8, 17, 20, 22-26, 28-31, 33-35, and 37 is reversed. REVERSED 6