Google LLC

Patent Trials and Appeals Board

Jul 26, 2021

2020001961 (P.T.A.B. Jul. 26, 2021)

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.
14/816,944 08/03/2015 Jeffrey Arthur Kardatzke 0715150.127-US3 6612
104433 7590 07/26/2021
Byrne Poh LLP/Google LLC
11 Broadway Ste 760
New York, NY 10004
EXAMINER
ALCON, FERNANDO
ART UNIT PAPER NUMBER
2425
NOTIFICATION DATE DELIVERY MODE
07/26/2021 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):
info@byrnepoh.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte JEFFREY ARTHUR KARDATZKE

Appeal 2020-001961
Application 14/816,944
Technology Center 2400

Before CARL W. WHITEHEAD JR., DAVID M. KOHUT, and
IRVIN E. BRANCH, Administrative Patent Judges.

PER CURIAM

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–21. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.

1 We use “Appellant” to reference the applicant as defined in
37 C.F.R. § 1.42. Appellant identifies the real party in interest as
“Google LLC.” Appeal Br. 3.
Appeal 2020-001961
Application 14/816,944

2
STATEMENT OF THE CASE
Appellant’s Invention
The present invention relates to “mechanisms . . . providing media
guidance [for] media content from alternate sources.” Spec., abst. Claim 1,
reproduced below, is illustrative of argued subject matter.
1. A method for providing media guidance with a plurality
of sources, the method comprising:
receiving, using a hardware processor, media content
information corresponding to a plurality of media content items
available for playback from at least one of a plurality of content
sources;
determining, without receiving user intervention to initiate the
determining, for a media content item of the plurality of media
content items, an availability of the media content item from a
plurality of alternate sources of media content that are different
than the plurality of content sources;
concurrently with causing the media content information from
at least a portion of the plurality of media content items to be
presented, causing an alternate source indicator for each of
the plurality of alternate sources to be presented with the
media content information using a media playback device in
response to determining that the media content item is
available from the plurality of alternate sources of media
content, wherein the alternate source indicator for each of the
plurality of alternate sources corresponds to the media content
item;
in response to determining that the media content item is
available from the plurality of alternate sources of media
content, determining that a media playback application
provided by at least one alternate source of the plurality of
alternate sources of media content has not been downloaded
and configured on the media playback device;
in response to receiving a selection of the alternate source
indicator that corresponds to the media content item, and in
response to determining that the media playback application
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provided by the at least one alternate source of the plurality of
alternate sources of media content has not been downloaded
and configured on the media playback device, causing a
selectable option to be presented that prompts the user to
configure the media playback application on the media
playback device;
in response to receiving the selection of the selectable option,
causing the media playback application to be downloaded and
stored on the media playback device, wherein the media
playback application corresponds to a content provider
associated with the at least one alternate source of media
content; and
causing the media content item that corresponds to the selected
alternate source indicator to be presented using the media
playback application.
Appeal Br. 17–18 (emphasis added).
Rejections
Claims 1–3, 8–10, and 15–17 stand rejected under 35 U.S.C. § 103 as
unpatentable over Merzon (US 2013/0114940 A1; May 9, 2013),
Schein (US 6,341,374 B2; Jan. 22, 2002), McTernan (US 2002/0013897 A1;
Jan. 31, 2002), and Chapweske (US 2009/0063699 A1; Mar. 5, 2009).
Final Act. 4–9.
Claims 4, 11, and 18 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Merzon, Schein, McTernan, Chapweske, and Moon
(US 2008/0244671 A1; Oct. 2, 2008). Final Act. 9–10.
Claims 5, 6, 12, 13, 19, and 20 stand rejected under 35 U.S.C. § 103
as being unpatentable over Merzon, Schein, McTernan, Chapweske, and
Makhlouf (US 2011/0126234 A1; May 26, 2011). Final Act. 11–12.
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Application 14/816,944

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Claims 7, 14, and 21 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Merzon, Schein, McTernan, Chapweske, and
lki (US 7,240,356 B2; July 3, 2007). Final Act. 13.
DECISION
In contesting the rejections of claims 1–21, Appellant addresses only
the rejection of claim 1 with particularity. Appeal Br. 8–15. Appellant then
summarily contends that the remaining independent claims (8 and 15) recite
limitations similar to claim 1’s disputed limitations and that the rejections of
claims 2–21 are therefore similarly erred. Id. at 15. We are unpersuaded of
error in the rejection of claim 1 and, accordingly, sustain the Examiner’s
decision to reject claims 1–21.
1. Claim 1 recites, “causing an alternate source indicator . . . to be
presented . . . in response to determining that [a] media content item
is available from [a] plurality of alternate sources”
The first dispute is whether the applied prior art teaches or suggests
the claimed indicator, as recited by the limitations quoted immediately
above. Appeal Br. 10–11. Appellant contends:
[T]he Examiner pointed to designator 706 described in
paragraphs [0053]–[0055] of Merzon as corresponding to this
[claim] feature. (Final Office Action, page 5).
Merzon states that designator 706 would be displayed
regardless of whether content is available from multiple
sources . . . . Accordingly, . . . Merzon . . . does not disclose or
suggest [the claimed] causing an alternate source indicator to be
presented in response to determining that a media content
item is available from a plurality of alternate sources of media
content[.]
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Appeal Br. 10 (some emphases omitted; internal brackets, ellipses and
quotation marks omitted). We are unpersuaded of Examiner error.
Merzon’s Figure 7, reproduced below, illustrates the at-issue
designator 706 within “a user interface providing an electronic program
guide [(EPG)] with notifications” (Merzon ¶ 11).

As shown, the designator 706 indicates that a respective program
(e.g., the illustrated “Sitcom” content) is “available to watch now” (id. ¶ 52)
from a non-linear content source (id. ¶ 53).2 As also shown, the

2 Merzon uses the terms “linear” and “non-linear” as follows: “Video
content may be obtained from a variety of sources, including linear and
FIG. 7 shows an embodiment of a user interface 700 displayed
on a display device, wherein the notifications are provided
within an EPG. The EPG of user interface 700 include a grid of
current and upcoming shows 702 available from a plurality of
channels 704. The grid may be divided into blocks of time 705
indicating the duration of the individual shows. Merzon ¶ 51.
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designator 706 is also part of an EPG program tile that indicates a time
period offering the respective content from a linear content source (e.g., the
illustrated half-hour periods at 4pm, 4:30pm, and 5pm that offer the
“Sitcom” content on a broadcast television channel “6 CHAN6”). Each
designator 706 is thus displayed in response to two implicit
“determin[ations] that [a] media content item is available from [a] plurality
of alternate sources” (claim 1). First, because the designator 706 shows that
the respective content is available from a non-linear content source
(id. ¶ 53), the designator 706 would not be displayed but for a determination
of availability from the non-linear content source. Second, because the
designator 706 is part-and-parcel of a broadcast-television program tile
(id. ¶ 53), the designator 706 would not be displayed but for a determination
to display the program tile and a corresponding determination that the
respective content is available from a linear content source.
Appellant also contends:
Merzon describes evaluating if the content is available from a
second source, where it will be understood that content
available at a second source is not necessarily available now.
In other words, content available at a second source may be
available for recording/viewing at a later date. (Merzon,
paragraph [0046]). Therefore, . . . designator 706 . . . does not
[disclose or suggest the claimed indication of a media content
item that is available from alternate sources of media content,
. . . [but rather] indicates content that may be available for
recording at a later date[.]

non-linear sources. Linear content sources, such as broadcast television
channels, provide content according to a specified schedule, whereas
non-linear sources allow users to access available content on demand.”
Merzon ¶ 1.
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[T]he Examiner cited paragraphs [0033] and [0034] of Merzon
as describing content that is determined to be currently
available. (Final Office Action, page 2). . . . [T]hese portions
of Merzon make no mention of alternate sources of a media
content item, let alone determining that the media content item
is available from the alternate sources.
Appeal Br. 10–11 (some emphases omitted; internal brackets and quotation
marks omitted). We are unpersuaded of Examiner error.
As discussed, Merzon’s designator 706 indicates that a respective
program is “available to watch now” (id. ¶ 52) from a non-linear content
source (id. ¶ 53). If the designator 706 is part of a program tile for a present
time period offering respective content (e.g., the illustrated 4pm “Sitcom”
content of broadcast-television channel “6 CHAN6”), then the inclusion of
the designator 706 within the tile indicates that the content is immediately
available from both a non-linear content source (per the display of the
designator 706) and a non-linear content source (per the display of the
designator 706 within the program tile).
2. Claim 1 recites, “in response to determining that [a] media content
item is available from [a] plurality of alternate sources, determining
that a media playback application provided by at least one alternate
source . . . of media content has not been downloaded and
configured”
Another dispute is whether the applied prior art teaches or suggests
the claimed playback application, as recited by the limitations quoted
immediately above. Appeal Br. 11–13. Appellant contends:
[I]t is unclear which of Merzon, McTernan, and Chapweske the
Examiner is asserting as corresponding to [this claim feature].
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It appears that the Examiner is asserting that Merzon discloses a
media plugin [for] an alternate source of media content,[]
McTernan discloses []a media playback application[,] and . . .
Chapweske discloses determining that an application has not
been downloaded and configured on a media playback device.
Merzon describes a plugin that translates metadata in search
queries for searching an external content source.
McTernan describes a driver or plugin for playback of a
particular media type not supported by a client device, and
makes no mention of a source of the driver or plugin.
. . . [T]herefore, . . . neither of Merzon and McTernan disclose
or suggest [the claimed “]media playback application provided
by at least one alternate source of [a] plurality of alternate
source of [al media content item[.]” . . . Merzon merely
describes a plugin for translating metadata for search queries,
not a media playback application[. ]McTernan makes no
mention of a source of [its] media plugin[.] . . . [T]he
combination of a plugin for translating metadata . . . [and] a
media plugin from an unspecified source . . . simply does not
[disclose or suggest the claimed “media playback application
provided by at least one alternate source.”]
Appeal Br. 12–13 (some emphases omitted). We are unpersuaded of
Examiner error.
The Examiner addresses the claimed playback application via a
combination of Merzon, McTernan, and Chapweske—not a combination of
merely Merzon and McTernan, as is argued. Ans. 9. Specifically, the
Examiner determines:
Merzon discloses media plug-ins associated with at least one
alternate source of media content at [0022] and [0027–0028].
McTernan discloses that it was known to provide a media
playback application from a source corresponding to a source of
a media content at [0053].
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Chapweske disclose [that,] when . . . a media playback
application[ (such as the disclosed media playback plug-in
module)] has not been configured on a media playback
device[,] the user is prompted to download the media playback
plug-in module at [0082–0088].
As set forth in the rejection, the combination of McTernan and
Chapweske would predictably result in modifying Merzon to
include a media player/media plug-in and prompting of a user
to download a corresponding media player/plug-in when the
software is available but has not been downloaded from an
alternate source of content such as the non-linear sources set
forth by Merzon (i.e., movie websites, television websites, etc.).
Ans. 9.
Appellant also contends:
[I]t appears . . . the Examiner is asserting that Merzon discloses
“in response to determining that [a] media content item is
available is available from [a] plurality of alternate sources,”
and that Chapweske discloses determining that a media
playback application corresponding to a source of media
content has not been configured, and that the combination of
Merzon and Chapweske therefore [suggests the claimed
playback application.]
. . . .
Because Chapweske is only concerned with media plugins for
playing a media object from a particular source, it would not
make sense to combine Chapweske with any reference that
allegedly discloses determining that a media content item is
available from an alternate source.
Appeal Br. 14–15. We are unpersuaded of Examiner error.
As explained within the Answer’s above description of the
Merzon-McTernan-Chapweske combination (Ans. 9 (block-quoted above)),
Chapweske’s invention responds to a request for content by determining the
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requesting device lacks an application for playing the content and then
prompting the user/device to download a respective playback application
(e.g., playback plug-in). Chapweske ¶¶ 81–88. As further explained, the
Examiner proposes to combine Merzon’s and Chapweske’s teachings as
follows: a designator indicates content is available from linear and
non-linear sources (Merzon); the user/device requests the content from the
non-linear source (Merzon); the device lacks an application for playing the
requested content (Chapweske); and the user/device is accordingly prompted
to download a respective playback application (Chapweske). Ans. 9
(block-quoted at supra 8). Thus, the argued claim feature is read on a
combination of Merzon’s and Chapweske’s teachings, whereas Appellant
attacks Chapweske individually. See In re Merck & Co., Inc.,
800 F.2d 1091, 1097 (Fed. Cir. 1986) (“Non-obviousness cannot be
established by attacking references individually where the rejection is based
upon the teachings of a combination of references.”). Regarding the specific
contention that “it would not make sense to combine Chapweske with any
reference that allegedly discloses determining that a media content item is
available from an alternate source” (Appeal Br. 14–15 (block-quoted at
supra 9), the contention is merely an attorney argument without supporting
evidence to rebut the prima facie case of obviousness set forth by the
Examiner. See In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997) (“An
assertion of what seems to follow from common experience is just attorney
argument and not the kind of factual evidence that is required to rebut a
prima facie case of obviousness.”).
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Application 14/816,944

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OVERALL CONCLUSION
We affirm the Examiner’s obviousness rejections of claims 1–21.

DECISION SUMMARY
Claims
Rejected 35 U.S.C. Basis Affirmed Reversed
1–3, 8–10,
15–17 103
Merzon, Schein,
McTernan,
Chapweske
1–3, 8–10,
15–17
4, 11, 18 103
Merzon, Schein,
McTernan,
Chapweske, Moon
4, 11, 18
5, 6, 12,
13, 19, 20 103
Merzon, Schein,
McTernan,
Chapweske,
Makhlouf
5, 6, 12, 13,
19, 20
7, 14, 21 103
Merzon, Schein,
McTernan,
Chapweske, lki
7, 14, 21
Overall
Outcome 1–21

TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this Appeal may be extended under 37 C.F.R. § 1.136(a).
See 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED