Brulotte, Kristopher

Patent Trials and Appeals Board

Apr 15, 2020

14945454 - (D) (P.T.A.B. Apr. 15, 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.
14/945,454 11/19/2015 Kristopher Brulotte 094810-1149071 1049
100597 7590 04/15/2020
KILPATRICK TOWNSEND & STOCKTON LLP (DISH)
DISH Network L.L.C.
1100 Peachtree Street
Suite 2800
Atlanta, GA 30309
EXAMINER
LIN, JASON K
ART UNIT PAPER NUMBER
2425
NOTIFICATION DATE DELIVERY MODE
04/15/2020 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):
KTSDocketing2@kilpatrick.foundationip.com
ipefiling@kilpatricktownsend.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KRISTOPHER BRULOTTE
Appeal 2019-000342
Application 14/945,454
Technology Center 2400
Before ERIC S. FRAHM, SCOTT E. BAIN, and
MICHAEL T. CYGAN, Administrative Patent Judges.

BAIN, Administrative Patent Judge.
DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision to reject claims 1–4, 6–9, 11–14, and 16–19, which constitute all
claims pending in the application. Claims 5, 10, and 15 have been cancelled.
We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

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 DISH
Technologies L.L.C. Appeal Br. 2.
Appeal 2019-000342
Application 14/945,454
2
BACKGROUND
The Claimed Invention
The invention relates to providing media content to a user, and
specifically, to providing temporary or promotional content upon a user’s
activation of a display and without user selection of the content. Spec. ¶¶ 2–
3, 5–6, Abstract. Claims 1 and 11 are independent. Claim 1 is illustrative of
the invention and the subject matter in dispute, and reads as follows:
1. A computing device that includes a processor and a
memory, the memory storing instructions executable by the
processor such that the computing device is programmed to:
while an application is running in a background status on
the computing device, receive metadata of a plurality of items
of available media content that is available to the application,
wherein each of the items of available media content include at
least one of video and audio data for playback;
receive an identifier specifying one or more categories of
media content;
select, according to the received identifier and the
received metadata of available media content, a plurality of
selected media content items from the available media content;
then, in response to user input to bring the application
from the background status to a foreground status, select one
item of available media content from the selected items of
available media content; and
then bring the application including the one item of the
plurality of selected items of available media content items to
the foreground status, whereby the application and the one item
of the plurality of selected items of available media content are
played back via the display.
Appeal Br. 10 (Claims Appendix) (emphasis added).
References
The references relied upon by the Examiner are:
Appeal 2019-000342
Application 14/945,454
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Name Reference Date
Thurston et al.
(“Thurston”)
US 2003/0084446 A1 May 1, 2003
Ellis US 2004/0154040 A1 Aug. 5, 2004
Iwasa et al. (“Iwasa”) US 2010/0235351 A1 Sept. 16, 2010
Kim et al. (“Kim”) US 2013/0239163 A1 Sept. 12, 2013
Chen et al. (“Chen”) US 2014/0123006 A1 May 1, 2014
Magahern et al.
(“Magahern”)
US 2016/0360271 A1 Dec. 8, 2016

The Rejections on Appeal
Claims 1, 8, 11, and 18 stand rejected under 35 U.S.C. § 103 as
unpatentable over Kim and Magahern. Final Act. 6–12.
Claims 2, 3, 9, 12, 13, and 19 stand rejected under 35 U.S.C. § 103 as
unpatentable over Kim, Magahern, and Thurston. Final Act. 13–17.
Claims 4 and 14 stand rejected under 35 U.S.C. § 103 as unpatentable
over Kim, Magahern, and Iwasa. Final Act. 17–18.
Claims 6, 7, 16, and17 stand rejected under 35 U.S.C. § 103 as
unpatentable over Kim, Magahern, and Ellis. Final Act. 18–19.
DISCUSSION
We have reviewed the Examiner’s rejections in light of Appellant’s
arguments presented in this appeal. Arguments which Appellant could have
made but did not make in the Briefs are deemed to be waived. See 37 C.F.R.
§ 41.37(c)(1)(iv). On the record before us, Appellant has not persuaded us
of error. We adopt as our own the findings and reasons set forth in the
rejections and in the Examiner’s Answer, and we provide the following for
highlighting and emphasis.

Appeal 2019-000342
Application 14/945,454
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Rejection of Claims 1, 8, 11, and 18
Under 35 U.S.C. § 103
Appellant argues the Examiner erred in finding the prior art teaches or
suggests bringing the one selected item “to the foreground status, whereby
the application and the one [selected item] . . . are played back via the
display,” as recited in claim 1. Appeal Br. 7–9; Reply Br. 2–4. Appellant
argues that claim 1 requires these steps must be performed “in response to
user input to bring the application from the background status to a
foreground status,” and cannot be the result of a second (or additional) user
input (which Appellant argues is disclosed in Magahern). Reply Br. 3.
Thus, Appellant contends, and the Examiner agrees, that this appeal “boils
down to the proper broadest reasonable interpretation” of the disputed claim
limitation. Reply Br. 2; Ans. 17–18. Although we agree with Appellant that
the appeal turns on the issue of claim construction as identified by
Appellant, we do not agree with Appellant’s proffered claim construction,
and we are unpersuaded the Examiner erred.
We begin by quoting the entirety of the relevant limitations in claim
1:
[1] then, in response to user input to bring the application
from the background status to a foreground status, select one
item of available media content from the selected items of
available media content; and
[2] then bring the application including the one item of
the plurality of selected items of available media content items
to the foreground status, whereby the application and the one
item of the plurality of selected items of available media
content are played back via the display.

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Application 14/945,454
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Appeal Br. 10 (Claims Appendix) (emphasis added). As evident from the
language of limitation [1] above, bringing the “application from the
background status to a foreground status” and “select[ing] one item of
available media content” are performed in response to user input.
Limitation [2], however, includes no such limitation. It merely recites (after
a semi-colon separating the clauses) “then bring” the application and the one
item to the foreground, and the application and item “are played back.” Id.
We, like the Examiner, do not discern anything in the claim language as
precluding additional inputs to bring the item to the foreground and to play it
back.
Appellant’s Specification does not, in our view, support Appellant’s
proffered interpretation. As Appellant argues, paragraph 6 discloses that
media content “is to be displayed, substantially immediately, upon activation
of a display and without user input to select an item of media content 110 for
display.” Spec. ¶ 6. This passage, however, differs from the disputed claim
language, and moreover, it only suggests selection of an item is without user
input, not that playback necessarily is without additional input. Appellant
also argues that paragraphs 22 and 23 support its interpretation, but those
paragraphs (which describe an “exemplary process,” i.e., an example) also
do not exclude additional user input for playback.
We, like the Examiner, construe the steps in disputed claim limitation
[2] as not being limited to “in response to [the] user input” in limitation [1],
i.e., we do not construe the claim as precluding additional input for playback
of content. Ans. 17, 20; In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359,
1364 (Fed. Cir. 2004) (claim terms given their “their broadest reasonable
interpretation consistent with the specification”).
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Application 14/945,454
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As the Examiner finds, and Appellant does not challenge, the
combination of Magahern and Kim teaches or suggests bringing the
application and item to foreground status, and playing back the item (i.e., the
content) albeit with additional user input. Ans. 3–9. Specifically, the
Examiner finds, and Appellant does not dispute (beyond the claim
construction issue discussed above):
Paragraph 0051, 0053, 0057 teaches the media application may
be launched as a background process on computing device. The
media application loads its media items and media item
metadata. Paragraph 0015 teaches computing device can
be a laptop computer, tablet computer, smartphone, smart
watch, etc. Media application can be music application, social
networking application, video application, messaging
application, navigation application, or any other type of
application that can present media having audio data, image
data, video data, and/or textual data on the display of the
computing device. Paragraph 0016 teaches user can invoke
media software application by waking computing device,
or by selecting an icon or other graphic corresponding to the
media application presented on a display of the computing
device. Paragraph 0017 teaches media application can present
its application data on a graphical user interface of the
media application.

Ans. 7–8. Further, the Examiner finds:

After the media application is invoked, the media application
can present a graphical user interface for presenting media
items, media item metadata, and/or application controls on the
display of the computing device. Fig.3, Paragraph 0041-0042
teaches presenting media item metadata and/or media
application controls on a display in response to user input or
stimulus for the predicted user application. Text element 304-
Fig.3 shows the identification information of first content to be
played. Particular media application is launched in the
background to collect and load metadata and media item(s).
Upon user input the application and application's corresponding
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Application 14/945,454
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metadata and media item(s) are provided and brought to the
foreground. As seen on Fig.3, one item of content ‘Saddle Up!’
is available first to be provided, so one item from a plurality of
available media content is selected to be provided first.
Paragraph 0044 teaches after the GUI is presented on the
display of the computing device, the user can simply press play
to listen to the user's favorite music. Paragraph 0015 had taught
the media application may be a music application, video
application, or any other type of application that can present
media having audio data, image data, video data and/or textual
data on display of computing device. Therefore, the media
application and the media content is brought to the foreground,
where media content is already loaded and ready to be played,
and upon user play selection, media is played back via the
display device).

Ans. 8 (emphasis omitted). Appellant identifies no error in the foregoing
findings, beyond the claim construction dispute discussed above.
For the foregoing reasons, we conclude the Examiner did not err in
rejecting claim 1. For the same reasons, we are unpersuaded of error
regarding the rejection of claims 8, 11, and 18, which Appellant does not
argue separately. See 37 C.F.R. § 41.37(c)(1)(iv). We, therefore, sustain the
obviousness rejection of claims 1, 8, 11, and 18.
Rejections of Remaining Claims Under 35 U.S.C. § 103
Appellant does not argue the rejections of the remaining claims
separately. Accordingly, for the same reasons discussed above, we sustain
the obviousness rejections of the remaining claims.
DECISION
We affirm the Examiner’s decision rejecting claims 1–4, 6–9, 11–14
and 16–19.
Appeal 2019-000342
Application 14/945,454
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SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1, 8, 11, 18 103 Kim, Magahern 1, 8, 11, 18
2, 3, 9, 12,
13, 19
103 Kim, Magahern,
Thurston
2, 3, 9, 12,
13, 19

4, 14 103 Kim, Magahern,
Iwasa
4, 14
6, 7, 16, 17 103 Kim, Magahern,
Ellis
6, 7, 16, 17
Overall
Outcome
1–4, 6–9,
11–14, 16–
19

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). See
37 C.F.R. § 41.50(f).

AFFIRMED