Ex Parte Zimmerman et al

Board of Patent Appeals and Interferences

Jul 26, 2012

09967867 (B.P.A.I. Jul. 26, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte JOHN ZIMMERMAN and NEVENKA DIMITROVA
____________________

Appeal 2010-008035
Application 09/967,867
Technology Center 2400
____________________

Before ST. JOHN COURTENAY III, THU A. DANG, and CAROLYN D.
THOMAS, Administrative Patent Judges.

DANG, Administrative Patent Judge.

DECISION ON APPEAL

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I. STATEMENT OF CASE
Appellants appeal the Examiner’s final rejection of claims 35 and 37-
55 under 35 U.S.C. § 134(a). Claims 1-34 and 36 have been canceled. We
have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

A. INVENTION
According to Appellants, the invention is directed to television
broadcast systems and, more specifically, to a system for receiving group
viewing statistics from a broadcast facility and displaying the statistics to a
viewer on a television set (Spec. 1, ll. 5-8).

B. ILLUSTRATIVE CLAIM
Claim 35 is exemplary and reproduced below:

35. A method of providing a shared viewing
experience quality to television viewers, the method
comprising:

providing content and use statistics to a viewer via at
least one of a broadcast stream or a secondary channel, wherein
the use statistics include which members of a viewer's group are
watching a selected program;

displaying the content;

displaying how many and which members of the
viewer’s group are currently watching the selected program;

sending messages to other members of the viewer’s
group;

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receiving and displaying messages from other members
of the viewer’s group;

on viewer request extracting and displaying at least one
of the following:

most popular shows currently being broadcast,

most popular shows last week,

most popular shows that a requesting viewer
watches,

most popular shows that a specified member of
the viewer’s group watches,

viewing history of a specified member of the
viewer’s group.

C. REJECTIONS
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Berezowski US 2002/0056087 Al May 09, 2002
(filed Mar. 30, 2001)
Chang US 2002/0174424 Al Nov. 21, 2002
(filed May 21, 2001)
Knudson US 6,536,041 Bl Mar. 18, 2003
(filed Jan. 12, 1999)
Finseth US 6,813,775 Bl Nov. 02, 2004
(filed Mar. 24, 2000)

Claims 35, 38, 40, and 43 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Berezowski, Chang, and Knudson.
Claim 37 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Berezowski and Finseth.
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Claims 39, 41, 42, and 44 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Berezowski, Chang, Knudson and Finseth.
Claims 45-49, 53, and 55 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Berezowski, and Chang.
Claims 50-52 and 54 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Berezowski, Chang, and Finseth.

II. ISSUE
Has the Examiner erred in concluding that the combined teachings of
Berezowski, Chang, and Knudson teach or would have suggested “use
statistics” that “include which members of a viewer’s group are watching a
selected program” and “displaying how many and which members of the
viewer’s group are currently watching the selected program” (claim 35)?

III. FINDINGS OF FACT
The following Finding of Fact (FF) is shown by a preponderance of
the evidence.
Berezowski
1. Berezowski discloses measuring audience information of programs,
wherein Berezowski’s Figure 6 is reproduced below:
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Berezowski’s Figure 6 discloses presenting to the user the audience
size of a program that is currently being viewed and/or recorded in
real time (p. 7, ¶ [0074]).
Chang
2. Chang discloses enabling family members and friends to inform
others as to television programs they watched and/or planning to
watch (p. 1, ¶ [0004]), wherein Chang’s Figure 5 is reproduced below:
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Chang’s Figure 5 discloses a television program display that
illustrates highlighted programs which represent the television
programs watched by viewers (p. 4, ¶ [0042]).

IV. ANALYSIS
Claims 35, 38, 40, and 43
As for claim 35, Appellants contend that in Berezowski, “the user is
not sharing his or her viewing experience with other viewers” and that “such
a pie chart does not show which members of a viewer’s group are watching
the selected program” (App. Br. 15). Appellants further contend that
“Chang fails to cure this shortcoming of Berezowski” (id.) because “Chang
merely provides a family schedule and a log of programs which the various
family members have watched” (App. Br. 16).
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The Examiner responds that “[t]he examiner is interpreting that …
Berezowski teaches a statistic … showing the user the percentage of user’s
watching the current program and Chang teaches displaying what programs
friends have watched” (Ans. 17). The Examiner concludes that it would be
obvious “to modify Chang to be real time updating as is disclosed by
Berezowski” (Ans. 18). According to the Examiner, since “Chang teaches
(with the real time updating disclosed by Berezowski) that which members
of a group … are watching any of the programs displayed,” “a person would
be able to count the number of people watching the program” (Ans. 19).
We find no error in the Examiner’s findings and conclusions. In
particular, Berekowski discloses presenting to the user the audience size of a
program that is currently being viewed and/or recorded in real time (FF 1).
We find that Berekowski discloses “use statistics” that include statistics of
members of a viewer’s group that are “watching a selected program” and
“displaying” the statistics of the members of the viewer’s group that are
“currently watching the selected program” (claim 35).
Furthermore, Chang discloses enabling family members and friends to
inform others as to television programs they watched, and/or planning to
watch by displaying highlighted programs which represent the television
programs watched/will be watching (FF 2). As Appellants admit, in Chang,
“there is an indication that ‘today is June 11’ and that the dates which are
displayed range from June 5 to June 11” (App. Br. 17).
We find “providing a shared viewing experience” (claim 35) to read
on Chang’s sharing of viewing programs with family member. We also find
Chang’s display of programs in the date range that includes “today” (current
date) to comprise a display of current, as well as past and future program
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information. Thus, we find Chang’s shared display to comprise displaying
“which members of a viewer’s group are watching a selected program” and
“displaying how many and which members of the viewer’s group” (claim
35) are currently watching a selected program. Since Chang discloses
displaying which members are watching a particular program, we agree with
the Examiner’s finding that “a person would be able to count the number of
people watching the program” (Ans. 19).
Accordingly, we find no error in the Examiner’s combination of
Berezowski’s display of statistics of members currently watching a selected
program with Chang’s shared program viewing by displaying which
particular members watched/are watching/will be watching which programs.
Thus, we find no error in the Examiner’s conclusion that the combined
teachings of Berezowski and Chang in further view of Knudson at the least
would have suggested “use statistics” that “include which members of a
viewer’s group are watching a selected program” and “displaying how many
and which members of the viewer’s group are currently watching the
selected program,” as required by claim 35.
We also note that what informational content that is being provided or
displayed, such as “which members of a viewer’s group are watching” or
“how many” of the members, does not limit how the respective
informational content is provided or displayed. That is, the terms do not
change the functionality of or provide any additional function to the claimed
informational content. Rather, these terms are merely descriptions of their
respective informational content, i.e., data. When descriptive material is not
functionally related to the claimed embodiment, the descriptive material will
not distinguish the invention from the prior art in terms of patentability. See
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In re Ngai, 367 F.3d 1336, 1339 (Fed. Cir. 2004) and In re Gulack, 703 F.2d
1381, 1385 (Fed. Circ. 1983).
Thus, we note that these terms are merely descriptions of data that is
being provided in a providing step and data being displayed in a displaying
step. That is, the informational content can be interpreted as any
information/data that is provided and displayed.
Accordingly, we find that Appellants have not shown that the
Examiner erred in rejecting claim 35 and claims 38, 40, and 43 falling
therewith under 35 U.S.C. § 103(a) over Berezowshi and Chang in further
view of Knudson.
As for claim 38, Appellants add that “[i]n Berezowski, there is no
ability for the viewer to select the viewers” and “in Chang, one does not
have the ability to choose one’s family” (App. Br. 21). However, the
Examiner points out that “Chang is not used to reject the limitation” and
finds that Berezowski teaches “that a user could input his/her zip code”
which is “interpreted as the user joining and selecting the members of
his/her own group” (Ans. 21). We find no error in the Examiner’s finding.
That is, we find no error in the Examiner’s finding that “the viewer selects
the members of the viewer group” of claim 38 to read on Berezowski’s
selection of zip code and, thus, members of the zip code.
Claims 37, 39, 41, 42, and 44
As for claim 37, though Appellants admit that Berezowski discloses
“providing real time ratings” of television programs and that “Finseth
generates a program guide with viewing recommendations,” Appellants
contend that “Berezowski makes no provision for and does not suggest
providing any real time display of the identities of the viewers used to make
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the gross statistics, nor does Berezowski provide a real time display of the
shows which other viewers in his/her viewer list are watching” (App. Br.
22). However, the Examiner finds that “the teaching of Finseth, specifically
the transmitting of detailed program watching information, could be added
to the general information display … to give more detailed information
about what the other viewers are watching” (Ans. 22). Since the Examiner
rejects the claim as obvious over the combined teachings of Berezowski and
Finseth, the test for obviousness is what the combined teachings would have
suggested to one of ordinary skill in the art. See In re Merck & Co., 800
F.2d 1091, 1097 (Fed. Cir. 1986). Thus, we find no error in the Examiner’s
conclusion that the features would have at the least been suggested by
Berezowski in view of Finseth.
Furthermore, though Appellants further contend that “if one were to
use the fair teachings of Berezowski and Finseth, each would modify a
different part of the system and work independently” (App. Br. 23),
Appellants appear to have viewed the references from a different perspective
than the Examiner. The issue here is not whether the system of Berezowski
would have been combined with the system of Finseth, but rather whether a
person of ordinary skill, upon reading Finseth, would be discouraged from
adding the direct information sharing as taught by Finseth to the system of
Berezowski as suggested by the Examiner (Ans. 9). We find no error with
the Examiner’s finding that the artisan, upon reading Finseth, would have
found it obvious to apply the direct information sharing of Finseth with the
system of Berezowski for “enabling users to get input from their friends”
(id.).
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The Supreme Court has determined that the conclusion of obviousness
can be based on the interrelated teachings of multiple patents, the effects of
demands known to the design community or present in the marketplace, and
the background knowledge possessed by a person having ordinary skill in
the art. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). The skilled
artisan would “be able to fit the teachings of multiple patents together like
pieces of a puzzle” since the skilled artisan is “a person of ordinary
creativity, not an automaton.” Id. at 420-21.
Accordingly, we find that Appellants have not shown that the
Examiner erred in rejecting claim 37 under 35 U.S.C. § 103(a) over
Berezowshi in further view of Finseth. Appellants do not provide arguments
for claims 39, 41, 42, and 44 separate from those of claim 35 from which
they depend. According, Appellants also have not shown that the Examiner
erred in rejecting claims 39, 41, 42, and 44 over Berezowski, Chang, and
Knudson in further view of Finseth.
Claims 45-55
As for claim 45, Appellants repeat that “Chang does not suggest
indicating who is actually watching a program now,” that “Chang does not
disclose a viewing statistics controller” (App. Br. 25), and that “Berezowski
displays content … without indicating how many and who are watching”
(App. Br. 26). However, as discussed above with respect to claim 35, we
find no error in the Examiner’s finding that Berezowski and Chang
combined would have at the least suggested such teachings.
Further, though Appellants contend that “[t]he viewer information in
Chang does not come from a foreign source through the same port as the
programming” (App. Br. 26), we find no error in the Examiner’s finding that
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“Chang teaches that the information created locally can be shared with other
televisions through a service provider or the internet” (Ans. 25).
As for claim 46, Appellants repeat that “[i]n Chang, one does not
cho[o]se ones family members” (App. Br. 27). However, as discussed above
with respect to claim 38, the Examiner’s rejection is of Berezowski in view
of Chang and what the combined teachings would have suggested. We find
no error in the Examiner’s finding that “the viewer selects the members of
the viewer group” of claim 46 (similar to claim 38) to also read on
Berezowski’s selection of zip code and thus members of the zip code.
As for claim 53, Appellants repeat that “in Chang, there is no viewing
statistics controller” (App. Br. 27). However, as the Examiner points out,
“Chang is not used to reject the limitation” (Ans. 26). We find no error with
the Examiner’s finding that “figure 14 [of Berezowski] shows that ‘I love
Lucy’ is the most popular program currently being broadcast” which is
interpreted as teaching the limitations of claim 53 (id.).
Accordingly, we find that Appellants have not shown that the
Examiner erred in rejecting claims 45, 46, and 53 and claims 47-49, and 55,
depending from claim 45 falling therewith, under 35 U.S.C. § 103(a) over
Berezowshi and Chang. Appellants do not provide arguments for claims 50-
52 and 54 separate from those of claim 45 from which they depend.
According, Appellants also have not shown that the Examiner erred in
rejecting claims 50-52 and 54 over Berezowski and Chang in further view of
Finseth.

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V. CONCLUSIONS AND DECISION
Appellants have not shown that the Examiner erred in concluding that
claims 35 and 37-55 are unpatentable under 35 U.S.C. § 103(a).
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

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