Thibaut Labarre et al.

Patent Trials and Appeals Board

Oct 2, 2019

14625933 - (D) (P.T.A.B. Oct. 2, 2019)

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.
14/625,933 02/19/2015 Thibaut Labarre 170116-1700 1804
71247 7590 10/02/2019
Client 170101 c/o
THOMAS HORSTEMEYER, LLP
3200 WINDY HILL RD SE
SUITE 1600E
ATLANTA, GA 30339
EXAMINER
ALAM, MUSHFIKH I
ART UNIT PAPER NUMBER
2426
NOTIFICATION DATE DELIVERY MODE
10/02/2019 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):
docketing@thomashorstemeyer.com
uspatents@tkhr.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte THIBAUT LABARRE, YIWEN CHANG, and MARION
HELENE DESMAZIERES
Appeal 2018-004976
Application 14/625,933
Technology Center 2400
Before ERIC B. CHEN, BARBARA A. BENOIT, and
PHILLIP A. BENNETT, Administrative Patent Judges.
BENNETT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant,1 Amazon Technologies,
Inc., appeals from the Examiner’s decision to reject claims 1–20. Final
Act. 1. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part.

1 We use the word “Appellant” to refer to “Applicant” as defined in
37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as
Amazon Technologies, Inc. App. Br. 1.
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CLAIMED SUBJECT MATTER
The claims relate to synchronizing a client device with media content
for scene-specific notifications. Spec., Title. Claim 1, reproduced below, is
illustrative of the claimed subject matter:
1. A non-transitory computer-readable medium having
program code stored thereon executable by at least one
computing device that, when executed by the at least one
computing device, causes the at least one computing device to:
synchronize a client application of a mobile client device
with media content being rendered by a media device using at
least one of an audio signal or a video signal captured by the
mobile client device during a playback of the media content, the
audio signal or the video signal embodying a captured portion of
the media content;
in response to the client application being synchronized
with the media content being rendered by the media device,
cause a display of a first user interface that comprises a plurality
of tags describing content of a plurality of upcoming scenes
associated with the media content;
receive a selection of at least one of the plurality of tags as
selected in the client application;
determine a current scene of the media content being
rendered by the media device during the playback by comparing
the audio signal or the video signal to at least one digital
fingerprint stored in a data store;
identify content in the plurality of upcoming scenes of the
media content being rendered by identifying and analyzing a
portion of the plurality of tags from the data store descriptive of
the content in the plurality of upcoming scenes, the plurality of
upcoming scenes to be rendered after the current scene in the
playback of the media content, the at least one of the plurality of
tags being submitted by individual ones of a plurality of users
and being associated with a metric indicating a reliability that the
at least one tag is descriptive of the content in the plurality of
upcoming scenes;
determine whether the content in at least one of the
plurality of upcoming scenes satisfies criteria predefined in the
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client application of the client device by comparing the at least
one of the plurality of tags as selected in the client application to
the portion of the plurality of tags as identified from the data
store; and
in response to the content in the at least one of the plurality
of scenes satisfying the criteria, cause a display of a second user
interface that comprises a countdown timer in anticipation of the
at least one of the plurality of scenes satisfying the criteria,
wherein the client application displays the second user interface
within a predefined temporal range of the at least one of the
plurality of upcoming scenes.
App. Br. 29–30 (Claims Appendix).
REFERENCES
The prior art relied upon by the Examiner is:
Green US 2009/0037961 A1 Feb. 5, 2009
Kandekar
Thomas
Elliott
Lee
Conte
US 2009/0288131 A1
US 2011/0078736 A1
US 2014/0215535 A1
US 2015/0019976 A1
US 2015/0245103 A1
Nov. 19, 2009
Mar. 31, 2011
Jul. 31, 2014
Jan. 15, 2015
Aug. 27, 2015
REJECTIONS2
Claims 1, 3–6, 8–10, 12, 13, 19, and 20 are rejected under 35 U.S.C.
§ 103 as being unpatentable over Kandekar, Elliot, and Thomas. Final
Act. 2–6.

2 Although identified as rejected on the Office Action Summary page, the
Examiner does not set forth any basis for rejecting claim 16. Based on the
Summary page, we consider claim 16 to stand rejected, and we do not
sustain the rejection of claim 16. It is the Examiner’s burden in the first
instance to provide the basis for rejecting a claim, and the Examiner has not
done so here. Hyatt v. Dudas, 492 F.3d 1365, 1369–70 (Fed. Cir. 2007) (“In
the prosecution of a patent, the initial burden falls on the PTO to set forth the
basis for any rejection, i.e., a prima facie case.”) (internal citations omitted).
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Claims 2, 7, 17, and 18 are rejected under 35 U.S.C. § 103 as being
unpatentable over Kandekar, Elliot, Thomas, and Conte. Final Act. 6–8.
Claim 11 is rejected under 35 U.S.C. § 103 as being unpatentable over
Kandekar, Elliot, Thomas, and Green. Final Act. 8–9.
Claims 14 and 15 are rejected under 35 U.S.C. § 103 as being
unpatentable over Kandekar, Elliot, Thomas, and Lee. Final Act. 9–10.
ISSUES
First Issue: Has the Examiner erred in finding the cited references
teach or suggest “in response to the client application being synchronized
with the media content being rendered by the media device, cause a display
of a first user interface that comprises a plurality of tags describing content
of a plurality of upcoming scenes associated with the media content,” as
recited in claim 1?
Second Issue: Has the Examiner erred in finding the cited references
teach or suggest “the at least one of the plurality of tags being submitted by
individual ones of a plurality of users and being associated with a metric
indicating a reliability that the at least one tag is descriptive of the content in
the plurality of upcoming scenes,” as recited in claim 1?
Third Issue: Has the Examiner erred in finding that a person of
ordinary skill in the art would have had a reason to combine the teachings of
Kandekar, Elliot, and Thomas?
Fourth Issue: Has the Examiner erred in finding the cited references
teach or suggest “generate or update the metric based at least in part on a
vote submitted by individual ones of the plurality of users made through the
network site user interface” and “determine that the metric associated with
the at least one tag exceeds a predefined reliability threshold indicating that
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the at least one tag is descriptive of the at least one of the plurality of
upcoming scenes,” as recited in dependent claim 2?
Fifth Issue: Has the Examiner erred in finding the cited references
teach or suggest “wherein monitoring, by the client device, the user of the
client device further comprises tracking, by the client device, an eye
movement of the user using a camera associated with the client device,” as
recited in claim 15?
ANALYSIS
First Issue
The Examiner rejects claim 1 as obvious over Kandekar, Elliot, and
Thomas. Relevant to this issue, the Examiner finds that Kandekar teaches
the limitation “in response to the client application being synchronized with
the media content being rendered by the media device, cause a display of a
first user interface that comprises a plurality of tags describing content of a
plurality of upcoming scenes associated with the media content.” Final
Act. 3 (citing Kandekar ¶¶ 31–32).
Appellant argues the Examiner has erred because Kandekar does not
teach that any display of a first interface is “in response to the client
application being synchronized with the media content.” App. Br. 14. More
specifically, Appellant argues Kandekar “merely discusses synchronizing a
‘media item with [a] script or lyrics,’ which is not synchronizing ‘a client
application of a mobile client device with media content being rendered by a
media device.’” App. Br. 15; Reply Br. 3–4 (citing Kandekar ¶ 43).
Appellant asserts Kandekar’s client device pairs with the set top box using a
local wireless connection such as Bluetooth, which obviates the need for
synchronization. App. Br. 15 (citing Kandekar ¶¶ 28–29). Appellant further
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contends that claim 1 does not require any such wireless connection because
“a current scene of media content must first be determined using an audio or
video sample collected in an environment, the device must be synchronized
with the playing content, and upcoming scenes must be determined after
synchronization.” Reply Br. 5.
We are not persuaded by Appellant’s argument. Appellant does not
appear to dispute that Kandekar teaches “caus[ing] a display of a first user
interface that comprises a plurality of tags describing content of a plurality
of upcoming scenes associated with the media content.” Instead, Appellant
argues that Kandekar’s display does not meet the requirement in claim 1 that
the display of the tags be “in response to the client application being
synchronized with the media content being rendered by the media device.”
In evaluating the patentability of claims, “the PTO gives a disputed
claim term its broadest reasonable interpretation.” In re Bigio, 381 F.3d
1320, 1324 (Fed. Cir. 2004). Appellant’s Specification does not provide a
definition for “synchronize.” One dictionary defines “synchronize” as
“cause to occur at the same time or rate.” Synchronize, New Oxford
American Dictionary 1761 (3d. ed. 2010). The Examiner finds that
Kandekar’s mobile device synchronizes with the media content being
rendered because it presents alerts to the user “during playback of a media
item” and displays tags which “may be associated with a point in time or a
time segment during playback of the media item that includes potentially
objectionable content.” Final Act. 3 (citing Kandekar ¶¶ 31–32). We agree
with the Examiner because the system described in Kandekar allows for
alerts to be generated at the “same the time or rate” as (i.e, synchronized
with) the playback of the media content. Kandekar ¶ 37. That is, Kandekar
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teaches that the alerts correspond to “a point in time or a time segment”
(Kandekar ¶ 32) within the media item, and are therefore “in response to the
client application being synchronized with the media content” as claimed.
Appellant further argues that Kandekar does not teach synchronization
because the client device is directly coupled to the media player. App.
Br. 15. However, the language of claim 1 does not preclude such a
connection. Under the broadest reasonable interpretation of “synchronize”,
the claim encompasses configurations both with and without a direct
coupling between the media player and client device. As such, Kandekar’s
connection between the client device and the media player is encompassed
by the argued limitation, and we are not persuaded by Appellant’s argument.
Second Issue
Appellant also asserts the Examiner erred in finding the cited
references teach or suggest the limitation “the at least one of the plurality of
tags being submitted by individual ones of a plurality of users and being
associated with a metric indicating a reliability that the at least one tag is
descriptive of the content in the plurality of upcoming scenes,” recited in
claim 1. The Examiner finds this limitation taught by Thomas. Final Act. 5
(citing Thomas ¶¶ 127–129).
Appellant argues Thomas does not teach this limitation because:
[N]othing in Thomas describes “a metric indicating a reliability
that the at least one tag is descriptive of the content in the
plurality of upcoming scenes,” as set forth in claim 1. While the
Office Action (p. 5) indicates that a “server accounts for accuracy
using an internal metric,” the word “metric” fails to appear in
Thomas, and nothing similar to a metric appears in at least the
portions of Thomas cited in the Office Action.
App. Br. 17.
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We are not persuaded of error. Thomas teaches that users among a
collection of contributors may submit “modification[s] to the media asset
description information.” Thomas ¶ 127. We agree with the Examiner that
these submissions correspond to “tags being submitted by individual ones of
a plurality of users.” Thomas further teaches that the submissions are
“conditioned on whether the first user is authorized to modify the particular
field” and “a user may only receive updates/modification on media asset
description information made by certain users (e.g., users with a reliable
reputation, official producers of media content, users with certain
authorization levels, users belonging to a community, etc.).” Thomas
¶¶ 128–129. Thus, Thomas teaches that the tags submitted by users are
associated with the reliability of the person submitting the update. Appellant
argues that Thomas is deficient because it does not use the term “metric.”
However, Thomas makes clear that the reliability of the submission is
measured by considering the person making the submission as compared
with other users. Id. The claim does not require that the metric be displayed
with the tag. Rather, it merely requires that tag be “associated with a
metric.” Because the content updates in Thomas are associated with the
determined reliability of the submitter, we agree with the Examiner that
Thomas teaches or suggests this limitation.
Third Issue
Appellant also argues the Examiner failed to provide a sufficient
rational for combining Kandekar, Elliot, and Thomas because “the Office
Action relies on information gleaned solely from Appellant's specification
and claims.” App. Br. 18. More specifically, Appellant argues:
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Kandekar describes the ability to pair a mobile device with a set
top box using Bluetooth®. One having ordinary skill in the art
would not take the system of Kandekar, where a mobile device
is directly pair to a set top box using Bluetooth®, with Elliot,
which describes a system for sending audio samples to a server.
For instance, if a mobile device in Kandekar can already identify
content being played through Bluetooth® communication with
the set top box, there is no motivation for audio or video samples
to be performed to determine content being played. In other
words, there is no motivation to perform audio or video sampling
if a set top box device is already aware of the content being
watched.
App. Br. 19. We disagree.
Elliot describes synchronizing content between two devices using
audio sampling. Elliot ¶ 15. Elliot recognizes the benefits of content
synchronization between a primary device and a secondary device. Elliot
¶ 3. Elliot teaches that such synchronization may be achieved using audio
sampling, which allows for synchronization among any two devices. Elliot
¶ 15. A person of ordinary skill in the art would have appreciated that
Kandekar could be improved by utilizing Elliot’s audio sampling because
doing so would allow a Kandekar to avoid the need for a direct coupling
while still allowing for timely display of the tags. Accordingly, we are not
persuaded the Examiner erred in combining the teachings of Kandekar and
Elliot.
Appellant also argues the combination of Thomas with Kandekar is
improper. App. Br. 19. The Examiner finds that “it would have been
obvious to [a person] of ordinary skill in the art . . . to have provided
metadata updated by users as taught by Thomas to the system of Kandekar
to allow for low cost corrections to metadata.” Final Act. 5 (citing Thomas
¶ 129). Appellant contends that there is nothing in Kandekar that would
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have prompted an ordinarily skilled artisan “to seek additional references ‘to
allow for low cost corrections to metadata.’” App. Br. 20 (quoting Final
Act. 5).
Appellant’s argument, in essence, is that the Kandekar does not
provide a specific motivation for a person of ordinary skill in the art to look
to Thomas. However, this argument it does not account for the expansive
and flexible nature of the obviousness inquiry. Eurand, Inc. v. Mylan
Pharms., Inc. (In re Cyclobenzaprine Hydrochloride Extended-Release
Capsule Patent Litig.), 676 F.3d 1063, 1069 (Fed. Cir. 2012) (“obviousness
inquiry must be expansive and flexible”).
Kandekar teaches that the metadata tags can be user generated.
Kandekar ¶ 33 (“[T]he metadata may include annotations provided by the
user 14, other users that have consumed (i.e., viewed, listened to, etc.) the
media item, a producer of the media item, or the like.”). The Examiner
explains that “Thomas is relied upon for teaching merely an ability for users
to update/modify metadata. This provide[s] additional utility to the
supplemental data of Kandekar and Elliot of more accurate metadata.”
Ans. 9. We agree with the Examiner’s reasoning. A person of ordinary skill
in the art would have known from Kandekar that metadata can be user
generated. Possessing the teachings of Thomas, we agree with the Examiner
that a person of ordinary skill in the art would have understood that the user
provided tags from Kandekar could be made more accurate by considering
the reliability of the user making the update, as taught by Thomas. Thomas
¶ 129. Accordingly, we are not persuaded the Examiner erred in combining
Thomas with Kandekar and Elliot.
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Fourth Issue
Appellant also challenges the Examiner’s findings with respect to
claim 2. Claim 2 recites the limitation “determine that the metric associated
with the at least one tag exceeds a predefined reliability threshold indicating
that the at least one tag is descriptive of the at least one of the plurality of
upcoming scenes.” App. Br. 31 (Claims Appendix). The Examiner cites
Conte, finding that its disclosure of crowdsourcing metadata renders obvious
this limitation. Final Act. 8 (citing Conte ¶ 66). Appellant argues that:
The Office Action (pp. 7–9) appears to take the position
that the discussion of a visual indicator in Conte shows or
suggests “at least one tag [descriptive of the content in the
plurality of upcoming scenes],” as set forth in claim 2. Appellant
respectfully submits, however, that a visual indicator of an item
of interest is not the same as “at least one tag [descriptive of the
content in the plurality of upcoming scenes],”as set forth in claim
2. Therefore, a threshold number of user modifying a visual
indicator of an item of interest cannot show or suggest
“determin[ing] that…the at least one tag is descriptive of the at
least one of the plurality of upcoming scenes” of the media
content being rendered. That is, Conte relates to describing an
item of interest, but Conte fails to show or suggest
“determin[ing] that…the at least one tag is descriptive of the at
least one of the plurality of upcoming scenes,” as set forth in
claim 2.
App. Br. 22–23. We are not persuaded by Appellant’s argument.
In the Answer, the Examiner explains:
Kandekar, Elliot, Thomas are relied [upon] teaching the structure
and system of providing, synchronizing main content data with
supplemental data regarding upcoming scenes/data. Conte is
only relied upon for teaching a plurality of users providing
“votes” to improve the accuracy of a particular metadata (i.e. tag
as claimed). Conte clearly discloses a feature where metadata is
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improvable through crowdsourcing data. Therefore, in
combination with Kandekar, Elliot, and Thomas, Conte does
indeed teach the claimed limitations of claim 2.
Ans. 10. Appellant does not address this explanation in the Reply Brief, and
we agree with the Examiner’s explanation. As noted in the rejection of
claim 1, Kandekar teaches the use of tags that are descriptive of upcoming
scenes (Kandekar ¶ 32) and that Thomas describes user submission of tags
as well as reliability metrics associated with those tags (Thomas ¶¶ 128–29).
Conte is relied upon only to show that it was known in the art to improve the
accuracy of metadata by crowdsourcing. Conte ¶ 66 (“If the user is a trusted
user . . . the addition or modification of a visual indicator can be
automatically approved . . . [and] [i]n some implementations, the answers to
requests can be crowd-sourced.”). Appellant’s argument attacks Conte
individually, while the rejection of claim 2 was based on the combination of
references. Accordingly, we are not persuaded the Examiner erred in
rejecting claim 2.
Fifth Issue
Claim 15 recites “wherein monitoring by the client device, the user of
the client device further comprises tracking, by the client device, an eye
movement of the user using a camera associated with the client device.”
The Examiner finds this limitation taught by Lee. Final Act 10 (citing Lee
¶ 81). Appellant argues Lee merely teaches using a sensor to determine
whether a user is looking at a portable terminal. App. Br. 25. Appellant
contends that Lee does not track eye movement of the user. Id. Appellant
also contends Lee is improperly combined with the remaining references.
App. Br. 26.
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The Examiner explains that the detection of the user’s eyes, as taught
by Lee, is sufficient to teach the recited “tracking” because Lee “makes a
determination of whether or not his eyes are looking at the screen or looking
elsewhere (i.e., not at the screen). Ans. 11. We agree. In order to determine
whether a user is looking at a screen, the camera follows the eye movement
of the user. We also agree with the Examiner’s stated rationale:
Kandekar discloses the use of a portable device and Lee discloses
a function which would enhance the use of a portable device. The
camera of Lee will determine whether or not the user is looking
at the device and provides additional utility in determining user
presence data.
Ans. 12. Appellant does not respond to this determination in the Reply
Brief, so it stands uncontested in the record. Accordingly, we are not
persuaded the Examiner erred in rejecting claim 15.
Remaining Claims
Regarding the rejection of claims 3–14 and 17–20, because Appellant
has either not presented separate patentability arguments or has relied upon
substantially the same arguments as those previously discussed above,
claims 3–14 and 17–20 fall therewith. See 37 C.F.R. § 41.37(c)(1)(iv).
CONCLUSION
We affirm-in-part the Examiner’s decision to reject the claims. More
specifically:
(1) We affirm the Examiner’s decision to reject claims 1–15 and 17–
20; and
(2) We reverse the Examiner’s decision to reject claim 16.
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DECISION SUMMARY
Claims
Rejected
Basis  Affirmed Reversed
1–15, 17–20 § 103  1–15, 17–20
16 None stated in
Final Office
Action
16
FINALITY AND 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-IN-PART