Gregg William. Riedel et al.

Patent Trials and Appeals Board

Jan 21, 2020

14503050 - (D) (P.T.A.B. Jan. 21, 2020)

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.
14/503,050 09/30/2014 Gregg William Riedel 40205/06301 8488
30636 7590 01/21/2020
FAY KAPLUN & MARCIN, LLP
150 BROADWAY, SUITE 702
NEW YORK, NY 10038
EXAMINER
SHIBRU, HELEN
ART UNIT PAPER NUMBER
2484
NOTIFICATION DATE DELIVERY MODE
01/21/2020 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):
mmarcin@fkmiplaw.com
okaplun@fkmiplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte GREGG WILLIAM RIEDEL, JEFF HESS,
and SCOTT DANAHY
____________________

Appeal 2018-008727
Application 14/503,050
Technology Center 2400
____________________

Before ALLEN R. MacDONALD, MICHAEL J. ENGLE and
IFTIKHAR AHMED, Administrative Patent Judges.

MacDONALD, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–20. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.

1 Appellant identifies the real party in interest as Viacom International Inc.
Appeal Br. 2.
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CLAIMED SUBJECT MATTER
Claim 1 is illustrative of the claimed subject matter (emphasis,
formatting, and bracketed material added):
1. A method, comprising:
[A.] recording, by a first time delayed playback (TDP)
device, a first feed broadcast to a first audience to
be used at least partially as a playback of a second feed
to be broadcast at a later time to a second audience;
[B.] determining, by the first TDP device, whether a failure
results in a missed feed portion from the recording of
the first feed, the missed feed portion being at a known
time and lasting a known time amount in the first feed
being broadcast to the first audience;
[C.] providing a backup recording corresponding to the
missed feed portion from a second TDP device that is
recording the first feed in parallel with the first TDP
device; and
[D.] transmitting to the second audience the playback of the
second feed including the backup recording at the
known time and lasting the time amount.
REFERENCES2
The prior art relied upon by the Examiner is:
Name Reference Date
Musser US 2005/0102695 A1 May 12, 2005
Scholl US 2009/0010610 A1 Jan. 8, 2009

2 All citations herein are by reference to the first named inventor only.
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REJECTIONS
A.
The Examiner rejects claims 1–20 under 35 U.S.C. § 112(a) as failing
to comply with the written description requirement. Final Act. 7–8 (Final
Office Action, mailed October 30, 2017, “Final Act.”).
As to the § 112(a) written description rejection, we select claim 1 as
representative. See 37 C.F.R. § 41.37(c)(1)(iv). Appellant does not
separately argue claims 2–20. Except for our ultimate decision, we do not
discuss the § 112(a) rejection of claims 2–20 further herein.
B.
The Examiner rejects claims 1–20 under 35 U.S.C. § 103 as being
unpatentable over the combination of Scholl and Musser. Final Act. 9–13.
As to the § 103 rejection, we select claim 1 as representative.
Appellant does not separately argue claims 2–20. Except for our ultimate
decision, we do not discuss the § 103 rejection of claims 2–20 further herein.

OPINION
We have reviewed the Examiner’s rejections in light of Appellant’s
Appeal Brief and Reply Brief arguments.
A. § 112(a)
Claim 1 recites in-part “recording, by a first time delayed playback
(TDP) device, a first feed broadcast to a first audience.” The Examiner
determines that as to claim 1, “the present application fails to provide
support for the feature of recording the first feed while broadcasting the first
feed to the first audience.” Final Act. 8 (emphasis added).
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Appellant argues this limitation is fully supported in the Specification.
We agree with Appellant. Our review determines that to the extent the
Examiner requires “recording the first feed while broadcasting the first feed
to the first audience,” this is described at the first sentence of paragraph 13
of the Specification.
When functioning as intended with the east coast feed not
including any issues, the [time delayed playback] TDP system
may record the east coast feed exactly as aired and use the
recording as the playback for the west coast feed.
Spec. ¶ 13.
Therefore, based on our review, we determine the Examiner’s analysis
fails to demonstrate that claim 1 lacks written description support.
B. § 103
B. 1.
Appellant raises the following argument in contending that the
Examiner erred in rejecting claim 1 under 35 U.S.C. § 103.
Initially, it is respectfully submitted that the teachings of
Scholl are inapplicable to the claims of the present application
since Scholl relates only to devices for private time shifting of
programs and are in no way related to or useful for broadcasting
to any audience. Thus, the operations and/or features of Scholl
have no bearing on the operations recited in the claims of the
present application. . . . Scholl is unrelated to broadcasting of
any kind and relates only to DVR devices each of which is
located at a single customer’s premises 116 and which are
specifically precluded from broadcasting of any kind. Scholl
merely receives a feed that has been broadcast by another entity
(e.g., the users of the device are part of the first audience) and
has no capability to in any way impact a feed to be broadcast to
another audience or of addressing any error in a feed for
broadcast as required by the claims.
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Appeal Br. 7–8 (emphasis added).
We are unpersuaded by Appellant’s argument. First, Appellant’s
contention that Scholl is “unrelated” to broadcasting is belied by Appellant
then immediately acknowledging that the users in Scholl “are part of the first
audience” that “receives a feed that has been broadcast by another entity.”
Appeal Br. 7.
Second, we determine that Appellant is mistaken in contending that
Scholl has “no capability to in any way impact a feed to be broadcast to
another audience.” Appeal Br. 7–8. For example, Scholl discloses:
[A] customer may request playback of the media content at the
first DVR device 304, and, in response to the playback request,
the first DVR device 304 may access the recorded media content
at the second DVR device 320.
Scholl ¶ 30. Even if Scholl’s multiple DVR devices were limited to a single
residential home, Appellant has not sufficiently explained why Scholl has
“no capability” for “another audience,” such as a second viewing by a
second person (e.g., a spouse, child, or roommate) at a different time on a
different device. We note that claim 1 does not particularize how the
audiences are required to be different. Also, we determine that Scholl’s
form of broadcasting is consistent with Appellant’s Specification. Appellant
describes “broadcast” in very broad terms.
A program may be broadcast to viewers in a variety of
different manners. For example, a television network may
broadcast different programs throughout a broadcast day. In
other examples, a web site, a mobile video provider, etc. may
also broadcast programs at select times during a day.
Spec. ¶ 1 (emphasis added). We determine that an objective observer
reading Appellant’s Specification would understand Appellant’s
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broadcasting to an audience to include sending content to a viewer from a
source via any form of network known to an artisan (wire, coax cable,
satellite, optical fiber, “etc.”).

B. 2.
Also, Appellant raises the following argument in contending that the
Examiner erred in rejecting claim 1 under 35 U.S.C. § 103.
Musser does not disclose or suggest a situation in which first feed
(e.g., an east coast feed) is broadcast, recorded, and subsequently
used to broadcast a second feed (e.g., a west coast feed) to a
second audience.
Appeal Br. 8 (emphasis added).3
[I]t is respectfully submitted that Musser also does not disclose
or suggest a first feed broadcast to a first audiences being used to
detect a failure and then correcting this failure to provide a
corrected feed for broadcast to a second audience, as recited in
claim 1.
Appeal Br. 9.
We are unpersuaded by Appellant’s argument. In this argument,
Appellant does not address the actual reasoning of the Examiner’s rejection.
Instead, Appellant attacks the Musser reference singly for lacking a teaching
that the Examiner relied on a combination of Scholl and Musser to show. In
particular, the rejection does not rely on Musser for teaching the “first feed,”
“second feed,” “recorded,” and “subsequently used” aspects disputed by

3 Although not required by claim 1, Appellant’s argument references the
“east coast feed” and “west coast feed” required by subsequent dependent
claim 10. At paragraph 67 cited by the Examiner, Musser explicitly teaches
an “East-coast feed” and a “West-coast feed.”
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Appellant. See Final Act. 9 (finding Scholl teaches, “recording, by a first
time delayed playback (TDP) device, a first feed to be used at least partially
as a playback of a second feed”). The Examiner relies on Musser (paragraph
67 and figures 1 and 5) to show a teaching that the first feed may be
“broadcast to a first audience” and the second feed may be “broadcast to a
second audience.” Final Act. 10.4 One cannot show nonobviousness by
attacking references individually when the rejection is based on a
combination of references. In re Merck & Co., 800 F.2d 1091, 1097 (Fed.
Cir. 1986); see also In re Keller, 642 F.2d 413, 425 (CCPA 1981)
(explaining the relevant inquiry is whether the claimed subject matter would
have been obvious to those of ordinary skill in the art in light of the
combined teachings of those references).

CONCLUSION
Appellant has shown the Examiner erred in rejecting claims 1–20
under 35 U.S.C. § 112(a) as failing to comply with the written description
requirement.
The Examiner has not erred in rejecting claims 1–20 as being
unpatentable under 35 U.S.C. § 103.

4 We view this teaching of Musser as redundant to the first and second
audiences described in Scholl. We determine Musser is only required if
“broadcast” is read as limited to an over-the-air type broadcast. As noted
supra, we read “broadcast” more broadly based on Appellant’s own
Specification.
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The Examiner’s rejection of claims 1–20 under 35 U.S.C. § 112(a) is
reversed.
The Examiner’s rejection of claims 1–20 as being unpatentable under
35 U.S.C. § 103 is affirmed.

DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–20 112(a) Written Description 1–20
1–20 103 Scholl, Musser 1–20
Overall
Outcome

1–20
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