Ex Parte Whitten et al

Patent Trial and Appeal Board

Mar 12, 2018

14012880 (P.T.A.B. Mar. 12, 2018)

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.
14/012,880 08/28/2013 Robert Clark Whitten 33020-RA42/ 13014-US1 6056
124538 7590 03/14/2018
Cox Communications, Inc.
c/o Next IP Law Group LLP
Two Ravinia
Suite 500
Atlanta, GA 30346
EXAMINER
NEWLIN, TIMOTHY R
ART UNIT PAPER NUMBER
2424
NOTIFICATION DATE DELIVERY MODE
03/14/2018 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):
bgunter @ nextiplaw. com
bbalser @ nextiplaw. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ROBERT CLARK WHITTEN and
RONALD LARRY HARDZOG JR.1
Appeal 2017-010427
Application 14/012,880
Technology Center 2400
Before CAROLYN D. THOMAS, MICHAEL J. STRAUSS, and
JOSEPH P. LENTIVECH, Administrative Patent Judges.
THOMAS, Administrative Patent Judge.
DECISION ON APPEAL
Appellants seek our review under 35 U.S.C. § 134(a) of the
Examiner’s final rejection of claims 1-18, all the pending claims in the
present application (See Claims Appendix). We have jurisdiction over the
appeal under 35 U.S.C. § 6(b).
We AFFIRM.
The present invention relates generally to providing a program guide
including scheduled and stored content items (See Abstract).
appellants name Cox Communications, Inc. as the real party in interest
(App. Br. 1).
Appeal 2017-010427
Application 14/012,880
Claim 1 is illustrative:
1. A method for providing a program guide, the
method comprising:
receiving scheduled content information from a
provider, the scheduled content information selectable for
electronically controlling a tuning module, the scheduled
content information including a plurality of content titles
scheduled in the future and at least one scheduled content
identifier associated with each content title scheduled in the
future;
receiving content information that includes at least
one duplicate content title scheduled at at least one of a later
time from the scheduled content or available through an on
demand service and at least one duplicate content identifier
associated with each duplicate content title;
determining that a duplicate content identifier
matches a scheduled content identifier; and
generating an electronic program guide comprising
the scheduled content information wherein at least one indicator
is displayed next to each scheduled content title where it has
been determined that a duplicate content identifier matches the
scheduled content identifier.
Appellants appeal the following rejections:
Rl. Claims 1—4, 6-10, 12-16, and 18 are rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Calderwood (US 2007/0101370 Al,
May 3, 2007) and Westberg (US 2006/0174270 Al, Aug. 3, 2006); and
R2. Claims 5, 11, and 17 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Calderwood, Westberg, and Rector, Jr. (US
6,209,130 Bl, Mar. 27, 2001).
We review the appealed rejections for error based upon the issues
identified by Appellants, and in light of the arguments and evidence
produced thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010)
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Appeal 2017-010427
Application 14/012,880
(precedential).
ANALYSIS
Rejection under § 103(a)
Issue: Did the Examiner err in finding that the cited art collectively
teach or suggest at least one indicator is displayed next to each scheduled
content title where it has been determined that a duplicate content identifier
matches, as set forth in claim 1?
Appellants contend “Calderwood and Westberg, both individually and
in combination, fail to disclose ... at least one indicator is displayed next to
each scheduled content title where it has been determined that a duplicate
content identifier matches the scheduled content identifier” (App. Br. 6).
Appellants further contend that the “tags [in Westberg] are not displayed to a
user of the interactive television program guide [as] [i]t is only used in
internal algorithms to approximate future listings. . . . Therefore, there is no
displaying of an indicator of duplicate content” {id.).
In response, the Examiner finds that “Westberg is only relied upon to
teach the determination of a future-scheduled program-not to display an
indication of a duplicate program. Calderwood, on the other hand, does
teach a displayed indication that a duplicate program exists” (Ans. 2; see
also Final Act. 3—4). We agree with the Examiner.
We refer to, rely on, and adopt the Examiner’s findings and
conclusions set forth in the Answer. Our discussions here will be limited to
the following points of emphasis.
Although Appellants highlight supra that there is no displaying of an
indicator of duplicate content in the teachings of Westberg, the Examiner is
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Appeal 2017-010427
Application 14/012,880
clearly relying on Calderwood for this teaching, not Westberg. For example,
Calderwood discloses that the standard definition (SD) channel is
“highlighted by a solid-line outline box and bold text” (]f 17) whereby “[t]he
software has inserted this HD channel’s program information into the on­
screen programming guide (highlighted by a dashed-line outlined box and
bold text)” (]f 18; see also Fig. 2). In other words, Calderwood teaches or
suggests displaying an indicator next to each scheduled content title where it
has been determined that a duplicate exist, i.e., an indicator for the SD
channel and the corresponding HD channel.
On the other hand, Westberg discloses that “television program
listings may include tags or identifiers that may indicate . . . when a program
will be repeated at a future time” 121). In other words, Westberg is
merely being used to teach content information scheduled in the future, not
the duplicate indicator.
Therefore, Appellants’ aforementioned contention is rebutting the
wrong reference. Furthermore, Appellants’ argument against Westberg
separately from Calderwood does not persuasively rebut the combination
made by the Examiner. One cannot show non-obviousness by attacking
references individually, where the rejections are based on combinations of
references. In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986);
In re Keller, 642 F.2d 413, 425-26 (CCPA 1981).
Accordingly, we sustain the Examiner’s rejection of claim 1.
Appellants’ arguments regarding the Examiner’s rejection of independent
claim 7 and 13 rely on the same arguments as for claim 1, and Appellants do
not argue separate patentability for the dependent claims. See App. Br. 4-
14. We, therefore, also sustain the Examiner’s rejection of claims 2-18.
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Application 14/012,880
DECISION
We affirm the Examiner’s § 103 rejections R1 and R2.
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
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